Swartland Munispaliteit v Thompson and Others (3958/03) [2005] ZAWCHC 34 (6 May 2005)

Swartland Munispaliteit v Thompson and Others (3958/03) [2005] ZAWCHC 34 (6 May 2005)

The court found that the respondents' use of the property for a transport contractor business was not unlawful prior to and on 3 December 1976, when the zoning scheme came into effect. The evidence showed that the municipal council was aware of and tacitly approved the use, including the construction of a large garage and installation of a diesel tank and pump for business purposes. The council's long-standing acquiescence and lack of enforcement for nearly 40 years further supported the lawfulness of the use. As such, the respondents' continued use is protected under section 57(3) of the 1934 Ordinance and section 14(6) of the 1985 Ordinance, and the applicant failed to discharge the...

Citation
[2005] ZAWCHC 34
Parties
Applicant: Swartland Munisipaliteit; Respondent: Charles Mortimer Thompson (in his capacity as trustee of the Thompson Broers Trust); Respondent: Ernst Frederick Thompson (in his capacity as trustee of the Thompson Broers Trust); Respondent: E.F. Thompson & Seun BK
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 May 2005
Case Number
3958/03
Procedural Posture
Civil Application / Final Determination
Outcome
Application dismissed with costs.
Judges
Thring, R.
Legal Topics
Zoning Scheme, Non Conforming Use, Municipal Approval, Final Interdict
Land and Property Administrative Law Zoning Scheme Non Conforming Use Municipal Approval Final Interdict

Case Brief

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Parties

Swartland Munisipaliteit

Applicant

Charles Mortimer Thompson (in his capacity as trustee of the Thompson Broers Trust)

Respondent

Ernst Frederick Thompson (in his capacity as trustee of the Thompson Broers Trust)

Respondent

E.F. Thompson & Seun BK

Respondent

Procedural Posture

Civil Application / Final Determination

Legal Issues

  1. 1 Whether the respondents' continued use of the property for a transport contractor business is unlawful under the applicable zoning scheme.
  2. 2 Whether the respondents' use is protected as a lawful pre-existing use under the relevant ordinances.
  3. 3 Whether the applicant is entitled to a final interdict prohibiting the business activities on the property.

Ratio Decidendi

The court found that the respondents' use of the property for a transport contractor business was not unlawful prior to and on 3 December 1976, when the zoning scheme came into effect. The evidence showed that the municipal council was aware of and tacitly approved the use, including the construction of a large garage and installation of a diesel tank and pump for business purposes. The council's long-standing acquiescence and lack of enforcement for nearly 40 years further supported the lawfulness of the use. As such, the respondents' continued use is protected under section 57(3) of the 1934 Ordinance and section 14(6) of the 1985 Ordinance, and the applicant failed to discharge the...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the costs of the respondents.