McKay and Others v Ursiweb (Proprietary) Ltd and Others (3510/2019) [2019] ZAFSHC 232 (5 December 2019)

McKay and Others v Ursiweb (Proprietary) Ltd and Others (3510/2019) [2019] ZAFSHC 232 (5 December 2019)

The court found that the respondents' use of the property for business purposes was in clear contravention of restrictive title conditions and the township scheme, which require residential use only. The applicants, as residents and property owners in the suburb, possess sufficient locus standi to enforce these restrictions, as the scheme was enacted for the benefit of the community, not just property owners. The respondents' arguments regarding proximity and the third applicant's lack of ownership were rejected; standing extends to those with a protectable interest, including residents. The concession of illegality by the respondents rendered the injury requirement satisfied. The only...

Citation
[2019] ZAFSHC 232
Parties
Applicant: Gillian McKay; Applicant: Juliana Sophia Kock; Applicant: Michelle van Zyl; Respondent: Ursiweb (Proprietary) Ltd; Respondent: Perfect Slabs (Pty) Ltd; Respondent: Mangaung Metropolitan Municipality
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 December 2019
Case Number
3510/2019
Procedural Posture
Final Interdict Application / Judgment
Outcome
Application granted. Final interdict issued against first and second respondents. Costs awarded against first and second respondents, limited to one counsel.
Judges
M.A. Mathebula
Legal Topics
Restrictive Conditions, Town Planning Scheme, Locus Standi, Final Interdict, Illegal Land Use
Land and Property Civil Procedure Restrictive Conditions Town Planning Scheme Locus Standi Final Interdict Illegal Land Use

Case Brief

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Parties

Gillian McKay

Applicant

Juliana Sophia Kock

Applicant

Michelle van Zyl

Applicant

Ursiweb (Proprietary) Ltd

Respondent

Perfect Slabs (Pty) Ltd

Respondent

Mangaung Metropolitan Municipality

Respondent

Procedural Posture

Final Interdict Application / Judgment

Legal Issues

  1. 1 Whether the respondents' use of the property contravenes restrictive title conditions and the township scheme.
  2. 2 Whether the applicants possess sufficient locus standi to seek an interdict.
  3. 3 Whether a final interdict is the appropriate remedy for the infringement of public rights in this context.

Ratio Decidendi

The court found that the respondents' use of the property for business purposes was in clear contravention of restrictive title conditions and the township scheme, which require residential use only. The applicants, as residents and property owners in the suburb, possess sufficient locus standi to enforce these restrictions, as the scheme was enacted for the benefit of the community, not just property owners. The respondents' arguments regarding proximity and the third applicant's lack of ownership were rejected; standing extends to those with a protectable interest, including residents. The concession of illegality by the respondents rendered the injury requirement satisfied. The only...

Court Disposition

Application granted. Final interdict issued against first and second respondents. Costs awarded against first and second respondents, limited to one counsel.

Orders

  • The first and second respondents are interdicted and restrained from conducting or allowing any other person to conduct a business from the premises situated at […] L Street, Dan Pienaar, Bloemfontein described as Erf […], Dan Pienaar, Extension 133, Bloemfontein.
  • The first and second respondents are ordered, jointly and severally, to pay the costs of this application, limited to the costs of one counsel.