Magalies Bronberg Property Owners Association (MBPA) and Others v City of Tshwane Metropolitan Municipality and Others (A448/16) [2017] ZAGPPHC 905 (13 December 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: A448/16

Court a quo case no: 86552/2014

13/12/2017

In the matter between:

MAGALIES-BRONBERG PROPERTY -

OWNERS ASSOCIATION (MBPA) First

Appellant

(First Applicant a quo)

HENDRIK WILLEM DUNSBERGEN Second

Appellant

(Second Applicant a quo)

RICHARD WAGNER Third

Appellant

(Third Applicant a quo)

and

THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent

IMVULA ROADS AND CIVILS (PTY) LTD Second Respondent

JACQUES PELSER Third Respondent

THE MEMBER OF THE EXECUTIVE COUNCIL

OF THE GAUTENG DEPARTMENT OF

AGRICULTURAL AND RURAL DEVELOPMENT Fourth Respondent

JUDGEMENT

1. This is an appeal against the judgement of Mali AJ delivered on 9 March 2016.

The application a quo concerns the alleged unlawful and illegal land use by the second and third respondents within the jurisdiction of City of Tshwane Metropolitan Municipality. The appellants seeks an interim order that the second and third respondent immediately cease:

2.1. Using the property of the third respondent to operate a commercial undertaking in conflict with the provisions of the Revised Pretoria Town Planning Scheme, 2014 as well as the relevant zoning scheme and the provisions of the title deed of the property;

2.2. Erecting any structures on the property of the third respondent without the authorisation of the City of Tshwane Metropolitan

Municipality;

2.3. The storing or parking of any vehicles of the second respondent or third respondent or such other vehicles used for commercial purposes by the second or third respondent on the property of the third respondent;

2.4. Erecting or placing or storing of any shipping containers, building construction material and/or builder associated material on the property of the third respondent; and

2.5. That the second and third respondent be directed to forthwith remove all vehicles parked or stored on the property of the third respondent and be interdicted and restrained from exercising a listed activity in terms of the third respondent.

2.6. The appellants further seek the following interim relief against the first and fourth respondents:

2.6.1. An order directing the first respondent to investigate the alleged contraventions of the second and third respondents in relation the property known as Portion 151 Mooiplaas 367 JR, Cullinan, held by Deed of Transfer T27572/2014, and file a report of findings, with the Registrar and parties within 90 (ninety) days from granting of this interim order indicating such contraventions found by such investigation.

2.6.2. An order whereby the fourth respondent is directed to investigate the alleged contraventions of the provisions of the National Environmental Management Act, 1998 JR Cullinan, held by Deed of Transfer T27572/2014 and file a comprehensive report with the Registrar and this applicants within 90 days from the granting of such alleged contravention found by such investigation.

2.7. There is also a Part B in which the appellants seek final relief. Part B is however not relevant to this specific inquiry.

2.8. The first appellant is a voluntary incorporated association and duly constituted as such with address at Plot 271, Mooiplaas, Pretoria, Gauteng. The first appellant is a community based association established to advance, promote and protect the general interests and other interests of its members. The first appellant's objectives are to represent and promote the interests of its members and the smallholding property owners in particular to sustainable and affordable municipal services and property rates. The first appellant exists to also attend to environmental issues and transgressions, development of the area and other common interests as may be determined from time to time by the members.

2.9. The second appellant is Hendrik Willem Dunsbergen an adult male businessman with residential address at Plot 246, Mooiplaas,

Cullinan, Gauteng.

2.10. The third appellant is Richard Wagner, an adult male businessman with residential address at Plot 555, Mooiplaas, Cullinan, Gauteng.

2.11. The first respondent is the City of Tshwane Metropolitan Municipality, a metropolitan municipality with legal capacity established in terms of Notice 9600 of 2000 published in terms of section 12(1) of the Local Government Structures Act, 117 of 1998 with address at 11 Francis Baard Street, Pretoria, Gauteng.

2.12. The second respondent is lmvula Roads and Civils (Pty) Ltd, a company with registration number M2007/035533/07 duly incorporated in terms of the laws of the Republic of South Africa with registered address at Ground Floor, 14 Bedfordview Office Park, 3 Riley Road, Bedfordview, Gauteng and with address of service at Roestoff Kruse Attorneys, 17 Dely Road, Hazelwood, Pretoria, Gauteng.

2.13. The third respondent is Jacques Pelser, an adult male businessman with Identity Number: 741109 5011 088 and director of the first respondent with address for service at Roestoff Kruse Attorneys, 17 Dely Road, Hazelwood, Pretoria, Gauteng.

2.14. The fourth respondent is the Member of the Executive Council of the Gauteng Department (GOARD) joined herein as the member of the Executive Council of Gauteng Province who is accountable to the provincial legislature for the Department of Agricultural and Rural Development cited herein in terms of the State Liability Act, 1957 with address at No 11, Diagonal Street, Johannesburg, Gauteng.

3. In Part A of the Notice of Motion, the appellants sought interim relief against the second and third respondents primarily aimed at interdicting and restraining them from using the property known as portion 151 Mooiplaas 367 JR, Cullinan (Portion 151) for business purposes and from erecting any structures on the property without the required authorisation of the first respondent.

4. Further in Part A of the Notice of Motion, the appellants also sought an order against the first and fourth respondents compelling them to investigate contraventions committed by the second and third respondents and to compile a report of such transgressions, if any, with the Registrar and the appellants.

5. The appellants also sought an order in terms of leave to amplify their founding papers within 20 (twenty) days from receipt of a report by the first respondent having regard to the relief sought in Part B of the Notice of Motion.

6. Part A was heard on 14 October 2015. By agreement between the appellants and first respondent the learned judge a quo granted an order directing the first respondent to investigate Portion 151 in terms of possible contraventions and report back to the parties.

7. On 20 January 2016 the first respondent's attorney filed a report compiled by one Mthi Lucas Radebe. That report was however unsigned and not confirmed under oath.

BACKGROUND

8. On 9 March 2016 my learned sister dismissed the application with costs and granted the applicants leave to appeal to a full bench.

9. In the matter a quo the Court firstly considered an application to strike out certain facts contained in the replying affidavit. The grounds on which the second and third respondents brought this application was the fact that the appellants did not establish a cause of action in the founding affidavit. It was found by the court a quo that the appellants created a new cause of action in the replying affidavit.

10. It was found by the court a quo that the appellants in the Founding Affidavit referred to an old, repealed Peri-Urban Areas Town Planning Scheme, 1975 and secondly that the new Tshwane Town Planning Scheme, 2008 should have been attached to the founding affidavit.

11. The appellants argued that on the 17th September 2014 the abovementioned substitution and incorporation was promulgated by publication in the Provincial Gazette No 258 of 17 September 2014 thereby incorporating the property into Tshwane Town Planning Scheme, 2008. The appellants further attached the zoning certificate marked "V" to their founding affidavit.

12. The second and third respondents oppose the relief on the basis that the appellants found their application on the alleged contravention

of the zoning certificate in terms of the Peri-Urban Town Planning Scheme, 1975; that the appellants failed to identify the relevant

applicable town planning scheme and that the zoning certificate relied upon by the appellants is invalid.

13. The court a quo further found that the Peri-Urban Town Planning Scheme, 1975 was repealed therefor the appellants failed to make out a case based on zoning contraventions; and that the appellants failed to attach a copy of the relevant town-planning scheme relied upon to the founding affidavit. The Tshwane Town Planning Scheme attached to the replying affidavit was therefore struck out.

14. It was finally found by the court a quo that a town planning scheme is a document of significance in establishing the use of property. Further that a zoning certificate cannot override the provisions of the Town Planning Scheme.

15. It should be noted at this stage of the proceedings that counsel on behalf of the appellants abandoned some of the interim relief sought. It is therefore recorded that the appellants abandoned the prayers in Part A of the Notice of Motion and more specifically 4(b), 4(d), 4(e), 4(f).

16. The appellants counsel handed up a blown-up photo of Annexure "Q" as attached to the founding affidavit of the appellants. It is clear from the photo that:

16.1. There are shipping containers on the property;

16.2. Vegetation has been removed on certain areas of Portion 151;

16.3. There are clearly heavy duty trucks on Portion 151;

16.4. And there seems to be workshops present.

17. The counsel for the second and third respondent then stated that what is visible on the photo are not in dispute.

18. There is also the following restrictive condition imposed by the Controlling Authority in terms of the Advertising on Roads and Ribbon Development Act (Act 21 of 1940) in the Title Deed of Portion 151 that reads:

"G The Property hereby transferred is subject to the following conditions imposed by the Controlling Authority in terms of Act 21 of

1940, namely:

(a).

(b).

(c). Die grond moet slegs vir woon en landboudoeleindes gebruik word en hoegenaamd geen winkel of besigheid of nywerheid mag sonder die skriftelike goedkeuring van die beherende gesag soos omskryf in Wet No 21 van 1940 gelees saam met Wet 44 van 1948 op die grond geopen of bedryf word nie."

19. There exists no evidence in casu that the abovementioned condition has been changed and/or cancelled.

20. It is furthermore clear from the Zoning Certificate of Portion 151 that the use zone xv is "undetermined" and the only buildings on the property allowed will be "Agriculture Buildings" and "Dwelling-house".

21. The appellants argue that based on the above legislation it is clear that the second and third respondents contravene the provisions of the Tshwane Town Planning Scheme, 2008 and that the second and third respondents uses Portion 151 contrary to the restrictions imposed in the Title Deed. This issue will be addressed later in the judgement.

LOCUS STANDI

22. It was denied by the second and third respondents that appellants have the necessary locus standi to bring this application.

23. It was argued by the second and third respondents that the locus standi is dependent on the fact that all the conditions applicable to the properties must be the same. It was further argued that the appellants also did not attach their own title deeds to their founding affidavit and/or corroborating affidavits.

24. The second and third respondents specifically referred to the property of the second appellant that does not have the same condition as per paragraph 18 above.

25. The first appellant's management committee was not properly constituted but the defect was cured during a special general meeting

held on 14 April 2015 and that such Management committee then ratified the institution of the present application. It is therefore

clear that the first appellant has the requisite locus standi.

26. The second and third respondents stated that the second and third appellants lack locus standi because they failed to prove that the conditions they rely on are common to all the properties in the interested area; such conditions are in fact transgressed by the second and third respondents; and if such title conditions still serve the purpose originally intended for.

27. It is found in casu that the appellants have the required locus standi to bring this application.

28. Reference is made to Malan and Another v Ardconnell Investments (Pty) Ltd, 1988 (2) SA 12 AD where it states on page 31 paragraph H - J as follows:

"The relevant portion on condition 87 provides as follows: 'All erven except those referred to in clauses 83 - 86 shall in addition to the conditions set out in clause 82 hereof be subject to the following conditions:

(a)

The Erf and the building or buildings to be erected thereon shall be used solely for such industrial purposes as may be approved

in writing by the local authority and for purposes incidental thereto, but for no other use or purpose, whatever, and no retail trading of any description (save as provided in subclause (ii) hereof) shall be conducted thereon'. "

"The appellants challenged the locus standi in judicio of the respondent to enforce observance by the appellants of condition B7(a) of the township conditions of title, incorporated as restrictive title condition (i) in the title deed of erf 42. They submitted that the condition was not one which enured to the benefit of the respondent, but was enforceable solely by the township owner. The condition, it was contended, did not fall within the principles enunciated in Elliston v Reacher [1908] 2 Ch 374 and Alexander v Johns 1912 AD 431."

and the abovementioned court concludes:

"Prima facie these registered servitudes will in general be praedial in nature and endure for the benefit of all other erven in the township unless there are indications to the contrary. They run with the land. The fourth point mentioned in Elliston v Reader (supra) has virtually become superfluous because the restrictive title conditions are imposed not only in the public interest for the purpose of town planning and development but also to enure for the benefit of all erven in the township."

and further:

"It follows in my judgement that the respondent has locus standi in judicio to enforce observance by the appellants of the restrictive title conditions in the title deed of Erf 42 which belongs to the first appellant."

29. It is found that there are prima facie evidence of a business operated from Portion 151 and that such an enterprise may interfere and affect the value of the properties of the second and third appellants. Proof of ownership is sufficient proof and flowing from this is that if the market value of the land is affected the land is affected. (Todd v Minister of Public Works 1958(1) SA 328 (A) at 334 G).

30. It is also stated in the matter of Patz v Greene 1907 TS 427 at 433 as follows:

"Everyone has the right, in my opinion, to protect himself by appeal to a court of law against loss caused to him by the doing of an act by another, which is expressly prohibited by law." (Roodepoort-Maraisburg Town Council v Eastern Properties (Pty) Ltd 1933 AD 87 at 96).

31. It is found that the appellants do hold the necessary locus standi.

32 The court a quo found on the main issue in favour of the respondents on the basis that the appellants sought to protect rights which are not founded in their founding papers. Therefore they have not established a prima facie right.

33. The court a quo stated as follows:

"The facts as set out by the applicant are that the respondents by bringing bulldozers, grass cutting (sic) are in clear contravention of zoning provisions as provided for in the certificate. The respondents do not dispute some of the facts; They maintain that they are not in contravention of any law as the property in question is not zoned for Agricultural purposes."

It is clear that if the above passage is indeed correct it demonstrate that the appellants in fact made out a prima facie case that the respondents are transgressing the zoning conditions. The court a quo then relying on a case of Daniel Jacobus Lukas Jacobs and Another [unreported judgement] a judgement of Yekiso J delivered on 14 November 2014 in the Western Cape Division where at paragraph 17 and 18 it was apparently held:

"At the hearing of the rule nisi Transrand produced an unreported judgement of a Full Bench of this Court in the form of Frenvest cc & Others v Smith & Others Appeal Number A476/96 handed down on 20 February 1997. The existence of this authority was not known to the applicants or their legal advisors..... On the basis of that authority the Full Bench of this Division held that a zoning certificate issued by a municipality such as the one issued by the Mossel Bay Municipality was not sufficient proof of the zoning of a property, and that evidence of a decision by the relevant council in respect of the zoning of the property concerned was required."

34. It is, however found by this court that the abovementioned judgement does not fall within the jurisdiction of this court, therefore this court is not bound by such a decision and secondly that nobody seems to be able to produce a copy of the unreported full bench judgement of Frenvest CC & Others v Smith & Others, Appeal Number A476/96 handed down on 20 February 1997. The prudent position would therefore be to ignore the abovementioned unreported appeal until such time that a copy is made available.

35. The court a quo further found that a town planning scheme is a document of significance in establishing the use of property and that a zoning certificate cannot override the provisions of the Town Planning Scheme.

36. It is indeed so that the Peri-Urban Areas Town Planning Scheme, 1975 was repealed and replaced with the Tshwane Town Planning Scheme, 2008 on 17 September 2014.

37. The Tshwane Town Planning Scheme, 2008 contains in clause 4 transitional arrangements. The transitional clause states:

"4(1) Any consent, permission or approval granted i.e. in terms of the provisions of a Town Planning Scheme in force for the erection or use of buildings or for the use of land, or any rights legally exercised in terms of such scheme, before the date contemplated in Clause 1 and before the proclamation date of this scheme, shall be deemed to be consent, permission or approval in terms of the provisions of this scheme.

(2) Any Annexure B, Annexures or Schedules promulgated in terms of the former... Peri-Urban Areas Townplanning Scheme, 1975... or other rights granted or promulgated in terms of other applicable land use legislation shall be deemed to be granted or approved in terms of this scheme."

38. It must therefore be accepted that there existed transitional arrangements in changing the schemes from the Peri-Urban Areas Town Planning Scheme, 1975 to the Tshwane Town Planning Scheme, 2008. It also cannot be said that the appellants did not mention the Tshwane Town Planning Scheme. They indeed referred to the said scheme on many occasion in their founding affidavit. The real issue is if there was a duty upon them to attach such documentation to their founding affidavit.

DID THE FOUNDING AFFIDAVIT DISCLOSE A CAUSE OF ACTION NOTWITHSTANDING THE FACT THAT THE COMPLETE TOWN PLANNING SCHEME WAS NOT ATTACHED TO THE FOUNDING AFFIDAVIT.

39. Section 5(1) of the Civil Proceedings Evidence Act, Act 25 of 1965 provides as follows:

"5. Proof of law or anything published in official publications.

(1) Judicial notice shall be taken of any law or government notice, or of any other matter which has been published in the Gazette.”

"Law - means any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law.”

40. It is stated as follows in Bewysreg, Schmidt, Fourth Edition, Schmidt and Rademeyer, Butterworths:

"Dit kom dan daarop neer dat 'n hof kennis moet neem van aangeleenthede wat aldus gepubliseer is, al is 'n kopie van die publikasie nie voorgele nie."

“Geregtelike kennisname strek tot ‘enige aangeleentheid” wat in 'n Staatskoerant of Offisiele Koerant gepubliseer word,... "

41. It is therefore found that the specific Tshwane Town Planning Scheme, 2008 was indeed published in the Provincial Gazette and therefore that the court a quo should have taken judicial notice of its contents and that there was no duty upon the appellants to have attached it to their founding affidavit. It is therefore further found that the court a quo erred in striking out the Tshwane Town Planning Scheme, 2008.

42. Counsel for the second and third respondents argued extensively on what is required to prove zoning. The fact of the matter is that there exist prima facie evidence that Plot 1 1 is zoned "UNDETERMINED" (See Tshwane Town Planning Scheme, 2008) and that purposes for which buildings may be erected are Agriculture, Farm Stall subject to Schedule 10 or, one dwelling house. There exist no evidence to the contrary and it must therefore be accepted that these conditions still apply. It was argued on behalf of the second and third respondents that the removal of the condition imposed by the Controlling Authority in terms of Act 21 of 1940, would be a mere formality:

43. These conditions are:

"(a) Die grond mag nie onderverdeel word nie tensy skriftelike goedkeuring van die Beherende Gesag soos omskryf in Wet No 21 van 1940 gelees met Wet No 44 van 1984 eers verkry is.

(b) Nie meer as een woonhuis, tesame met sulke buitegeboue wat gewoonlik in verband daarmee nodig is mag op die grand opgerig word nie tensy die skriftelike goedkeuring van die Beherende Gesag soos omskryf in Wet No 21 van 1940 gelees saam met Wet No 44 van 1984 eers verkry is.Die grond moet slegs vir woon en landboudoeleindes gebruik word en hoegenaamd geen winkel of besigheid of nywerheid mag sander die skriftelike goedkeuring van die Beherende Gesag soos omskryf in Wet 21 van 1940 gelees saam met Wet 44 van 1984 op die grond geopen of bedryf word nie.”

44. There exists merit in the argument on behalf of the second and third respondent that the removal of the said condition might be a mere formality but until it is removed it must stand and be observed.

45. The Advertising on Roads and Ribbon Development Act, Act 21 of 1940 state as follows:

“(8) Notwithstanding any provision to the contrary in the Deeds Registries Act, 1937, or any other law, the Registrar of Deeds may, with the approval in writing -

(a) of the controlling authority concerned; and

(b) in the case of land situated in the ....

cancel any condition which has in terms of subsection (7) been inserted in a deed of transfer or certificate or consolidated title or endorsed upon a title deed.”

"(9) The cancellation of any condition in terms of subsection (8) may be effected on a written application by the registered owner of the land in question accompanied by the approval or approvals required under the said subsection and proof that the bondholder ,if any has been advised of the proposed cancellation."

"15 Penalty- (1) Any person who contravenes any provision of section 2, 8, 9 or 9A or who fails to comply with a lawful direction issued to him by a controlling authority under section 4(1), 8(3) or 9(4), shall be guilty of an offence and liable to a fine not exceeding R200 or to imprisonment or a period not exceeding six months or to both such fine and such imprisonment.”

46. From the above it is clear what the procedure is to cancel any condition and that any arbitrary disobedience of such a condition

would be unlawful and constitute a crime.

47. There exists presently no evidence before the court that the said conditions have been removed.

48. The court therefore finds that the said conditions are still in force and effect.

REQUIREMENTS FOR AN INTERDICT

49. An application for a ter1:1porary or a final interdict will succeed if it complies with:

(a) a clear right;

(b) an injury actually committed or reasonably apprehended; and

(c) the absence of similar protection by any other ordinary remedy.

50. The court however has a discretion to grant a temporary interdict even when a clear right has not been proved. A court will exercise its discretion under the following circumstances::

(a) The right that forms the subject matter of the main action and that the applicant seeks to protect is prima facie established, even though open to some doubt;

(b) There is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately

succeeds in establishing his right;

(c) The balances of convenience favours the granting of interim relief; and

(d) The applicant has no other satisfactory remedy.

See: The Civil Practice of the Supreme Court of South Africa, Fourth Edition, Van Winsen Cilliers & Loots, Fourth Edition, Juta on page 1065.

51. The right that the appellants want to protect must be a legal right. When such a right is one that arises automatically in law it is not necessary for the applicant to allege any facts in order to establish the right. There exist prima facie evidence that Portion 151 may only be used for agricultural or dwelling purposes. It was further admitted by the second and third respondents that what is depicted on Annexure Q is not disputed. On the photo are depicted shipping containers, numerous heavy duty trucks and an advertisement board of a business called lmvula Roads and Civils (Pty) Ltd. It is clear from the above that the appellants made out a prima facie case that the second and third respondent are using the said property in contravention of the right, as per the Tshwane Town Planning Scheme 2008, that clearly prescribe that the Plot 151 can only be utilised for residential an agricultural purposes and that shops, business or industrial activities are expressly prohibited unless written permission has been granted by the Controlling Authority. For the second and third respondent to rely on the fact that the removal of the said condition is a mere formality does not hold water. Any such activity without the written permission of the Controlling Authority is unlawful and a criminal offence.

52. The only inference to be drawn from the facts contained in the affidavits is that the second and third respondents conduct a

business on Portion 151.

53. It is therefore clear from the evidence that the appellants demonstrated the existence of a prima facie right. The term "prima facie right'' used in terms of temporary interdicts means that the court must take into account the allegations made by both the applicant and the respondent in deciding if a prima facie right has been established. In Webster v Mitchell 1948 (i) SA 1186 (W) Clayde J said the following:

"The use of the phrase 'prima facie established though open to some doubt' indicates I think that more is required than merely to look at the allegations of the applicant, but something short of weighing up of the probabilities of conflicting versions is required."

54. In Olympic Passenger Services (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) Holmes J summed up the position in relation to the granting of interim interdicts as follows:

"It thus appears that where the applicant's right is clear, and the other requisites are present, no difficulty presents itself about granting the interdict. At the other end of the scale, where his prospects of ultimate success are nil, obviously the court will refuse an interdict. Between those two extremes fall the intermediate cases in which, on the papers as a whole, the applicants' prospects or ultimate success may range all the way from strong to weak. The expression "prima facie established though open to some doubt" seems to me a brilliantly apt classification of these cases. In such cases, upon proof of a well-grounded apprehension of irreparable harm, and there being no adequate ordinary remedy the Court may grant an interdict - it has a discretion, to be exercised judicially upon a consideration of all the facts. Usually this will resolve into a nice consideration of the prospects of success and the balances of convenience - the stronger the prospects of success, the less need for such balance to favour the applicant: The weaker the prospects of success, the greater the need for the balance of convenience to favour him. I need hardly add that by balance of convenience is meant the prejudice to the applicant if the interdict be refused, weighed against the prejudice to the respondent if it be granted."

55. The appellants reasonable apprehension of irreparable harm are to be found in the fact that the second and third respondents feel that they are acting within their rights and are unabatedly continuing with their conduct on Plot 151 which is to the detriment of the appellants. It is trite that when the prima facie wrongful act impairs the applicants' rights or make it impossible for him to exercise his right the injury will be considered to be irreparable. The injury does not however have to be absolutely irreparable. The appellants will succeed if they can establish that it will be more difficult and costly to restore the status quo at a later stage. Ebrahim & Another v Georgoulas & Another 1992 (2) SA 151 (B).

56. The appellants clearly established that the first respondent is unwilling to act against the second and third· respondent. It is therefore that the appellants had no other option then to approach the court as they have done.

57. The balances of convenience favours the appellants' rights should it be found that the second and third respondent conduct a business on Portion 151. It seems from the point of view of prima facie evidence that the activities on Plot

151 as depicted on Annexure Q, and not denied by the second and third respondent, indeed seems to be business activities and in

transgression of the existing zoning rights.

58. The court a quo also erred in finding that a zoning certificate cannot override the provisions of the Town Planning Scheme and thus a prima facie right cannot be established. It is submitted that the court a quo should have taken judicial notice of the applicable Town Planning Scheme.

59. Arising from the evaluation of the evidence as a whole I am of the view that the appellants have made out a case for the relief in the notice of motion.

ORDER

60. The appeal is therefore upheld and the order of the Court a quo be set aside and replaced with the following order:

60.1. It is ordered that the first respondent is hereby directed to investigate the alleged contraventions of the second and third

respondents in relation to the properly known as Portion 151, Mooiplaas 367 JR, Cullinan, held by Deed of Transfer T27572/2014, and file a comprehensive report with the Registrar and the parties within 30 (thirty) days from the granting of this order indicating the veracity of such alleged contraventions and that such findings be reduced to writing;

60.2. The appellants are granted leave to amplify their founding papers, if so advised, within 20 (twenty) days from receipt of the report from the first respondent as referred to in prayer one of the Notice of Motion having regard to the relief sought in Part B of the Notice of Motion;

60.3. The second and third respondents are interdicted and restrained from using the property known as Portion 151, Mooiplaas 367 JR, Cullinan held by Deed of Transfer T27572/2014 for the purposes of the business of the second respondent or any other business conducted by the second and/or third respondent or any other person;

60.4. Second and third respondents are interdicted and restrained from storing or parking of any commercial vehicles of the second

respondent or third respondent or such other vehicles used for commercial purposes by the second or third respondent on the property

known as Portion 151, Mooiplaas 367 JR, Cullinan, held by Deed of Transfer T27572/2014;

60.5. The second and third respondents are ordered, jointly and severally to pay the costs in respect of Part A of the Notice of Motion.

__________________

JJ HATTING

ACTING JUDGE OF THE HIGH COURT

I agree,

MOLOPA J.

JUDGE OF THE HIGH COURT

_________________

MNGQIBISA THUSI J