Jacobs and Others v Buschow and Others (2021/2022) [2022] ZAFSHC 338 (28 November 2022)

Jacobs and Others v Buschow and Others (2021/2022) [2022] ZAFSHC 338 (28 November 2022)

The court found that the respondents were unlawfully permitting the operation of a frail care facility on property zoned 'Single Residential 2', in contravention of the Bloemfontein Town Planning Scheme. The applicants, as neighbouring property owners, have locus standi to enforce compliance with the zoning scheme. Non-joinder of residents and Tree Tops (Pty) Ltd was not fatal, as neither had a direct and substantial interest prejudicially affected by the relief sought, which was not eviction but restraint of unlawful business use. The pending re-zoning application did not legalize current use, and the Prevention of Illegal Eviction from Unlawful Occupation of Land Act was inapplicable....

Citation
[2022] ZAFSHC 338
Parties
Applicant: Salomon Jacobus Jacobs; Applicant: Anra Faber; Applicant: Corize van Rensburg; Applicant: Daniel Pierre Hugo; Respondent: Karl Erich Buschow; Respondent: Karen-Lynn Buschow; Respondent: Marigold Place; Respondent: Mangaung Metropolitan Municipality
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 November 2022
Case Number
2021/2022
Procedural Posture
Urgent Application / Final Interdict Application
Outcome
Application granted; final interdict issued restraining unlawful business use of residential property.
Judges
P.E. Molitsoane
Legal Topics
Town Planning Scheme, Final Interdict, Zoning Restrictions, Locus Standi, Non Joinder, Illegal Land Use
Land and Property Civil Procedure Administrative Law Town Planning Scheme Final Interdict Zoning Restrictions Locus Standi Non Joinder +1 more

Case Brief

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Parties

Salomon Jacobus Jacobs

Applicant

Anra Faber

Applicant

Corize van Rensburg

Applicant

Daniel Pierre Hugo

Applicant

Karl Erich Buschow

Respondent

Karen-Lynn Buschow

Respondent

Marigold Place

Respondent

Mangaung Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Final Interdict Application

Legal Issues

  1. 1 Whether the respondents are unlawfully conducting business on property zoned 'Single Residential 2'.
  2. 2 Whether non-joinder of residents and Tree Tops (Pty) Ltd is fatal to the application.
  3. 3 Whether the applicants have locus standi to seek interdictory relief.

Ratio Decidendi

The court found that the respondents were unlawfully permitting the operation of a frail care facility on property zoned 'Single Residential 2', in contravention of the Bloemfontein Town Planning Scheme. The applicants, as neighbouring property owners, have locus standi to enforce compliance with the zoning scheme. Non-joinder of residents and Tree Tops (Pty) Ltd was not fatal, as neither had a direct and substantial interest prejudicially affected by the relief sought, which was not eviction but restraint of unlawful business use. The pending re-zoning application did not legalize current use, and the Prevention of Illegal Eviction from Unlawful Occupation of Land Act was inapplicable....

Court Disposition

Application granted; final interdict issued restraining unlawful business use of residential property.

Orders

  • The First, Second and Third Respondents are interdicted and restrained from conducting or allowing any other person to conduct a business from or use erf [....], L[....]Street, D[....], Bloemfontein, for any use other than the zoning of the property, being 'Single Residential 2'.
  • The First, Second and Third Respondents are ordered to pay the costs of this application, jointly and severally, the one to pay and the others to be absolved.