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South Africa Order

Western Cape High Court, Cape Town

Liebenberg v Frater NO and Others, Drakenstein Municipality v Frater NO and Others (6214/2010, 19763/2010) [2010] ZAWCHC 204 (23 September 2010)

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01

Holding and result

The court found that the Trust had not obtained the necessary building plan approvals, occupancy certificates, or trading licences required for the lawful operation of the restaurant and further construction on Erf 2681. The urgency of the matter was established due to ongoing unlawful activities and the risk posed to public safety and municipal order. The requirements for an interim interdict were satisfied, as the applicants demonstrated a prima facie right to relief, a reasonable apprehension of harm, and the absence of alternative remedies. The court consolidated the applications for convenience and issued a Rule Nisi, granting interim relief to restrain further construction and occupation pending compliance with statutory requirements.

Court disposition

Interim interdict granted; Rule Nisi issued; costs reserved for determination on the return date.

Orders

  • The forms and periods prescribed by the Uniform Rules of Court are dispensed with and the applications are heard as matters of urgency.
  • The application brought by Drakenstein Municipality is consolidated with that of Diana Liebenberg for convenience.
  • A Rule Nisi is issued, calling upon the Trust to show cause on 8 December 2010 why the following orders should not be made: (a) the Trust is interdicted from further building or construction work on Erf 2681 until approval of building plans or provisional authorisation is obtained; (b) the Trust is interdicted from operating any restaurant on Erf 2681 until building plan approval, occupancy certificate or written permission, and trading licences are granted; (c) the Trust is interdicted from occupying any part of the buildings on Erf 2681 until an occupancy certificate or written permission is granted.
  • Paragraphs 3.1 and 3.3.2 of the order operate as interim interdicts with immediate effect pending the return day.
  • Service of the order shall be effected on Windfall 32 Restaurant (Pty) Ltd and displayed on the restaurant notice board and/or staff room.
  • Filing of additional affidavits and heads of argument shall be done in accordance with the Uniform Rules of Court.
  • All issues of costs stand over for determination on the return date.

02

Material facts

Parties

Diana Liebenberg

Applicant

Gerard Frater N O

Respondent

Yvette Frater N O

Respondent

Jacobus Petrus Rossouw N O

Respondent

The Gerard Frater Family Trust

Respondent

Drakenstein Municipality

Respondent

03

Procedural history

  1. Posture

    Urgent Application / Rule Nisi and Interim Interdict

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that the Trust had commenced building and operating a restaurant on Erf 2681 without approved building plans, occupancy certificates, or trading licences as required by law. The applicant argued that such conduct was unlawful and posed risks to public safety and municipal compliance. Urgent relief was sought to prevent further construction and occupation until all statutory requirements were met.
Respondent
The respondents argued that the construction and operation were either compliant or in the process of obtaining necessary approvals. They disputed the urgency and necessity of the interdict, claiming that the applicant had not demonstrated irreparable harm or that the statutory processes had been breached to the extent warranting immediate court intervention.

05

Court’s reasoning

  1. 01

    Section 7(6) and Section 14(1A) of the National Building Regulations and Building Standards Act 103 of 1977

    A party may not undertake building works or operate a business on premises without approved building plans and municipal authorisation.

  2. 02

    Setlogelo v Setlogelo 1914 AD 221

    Interim interdicts may be granted where there is a prima facie right, a well-grounded apprehension of irreparable harm, and no other satisfactory remedy.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the Trust had not obtained the necessary building plan approvals, occupancy certificates, or trading licences required for the lawful operation of the restaurant and further construction on Erf 2681. The urgency of the matter was established due to ongoing unlawful activities and the risk posed to public safety and municipal order. The requirements for an interim interdict were satisfied, as the applicants demonstrated a prima facie right to relief, a reasonable apprehension of harm, and the absence of alternative remedies. The court consolidated the applications for convenience and issued a Rule Nisi, granting interim relief to restrain further construction and occupation pending compliance with statutory requirements.

Obiter and limits

  • The court emphasised the importance of municipal compliance in building and business operations to safeguard public interests.
  • The consolidation of applications under Rule 10 was deemed appropriate for judicial economy and clarity of proceedings.

Court disposition

Interim interdict granted; Rule Nisi issued; costs reserved for determination on the return date.

  • The forms and periods prescribed by the Uniform Rules of Court are dispensed with and the applications are heard as matters of urgency.
  • The application brought by Drakenstein Municipality is consolidated with that of Diana Liebenberg for convenience.
  • A Rule Nisi is issued, calling upon the Trust to show cause on 8 December 2010 why the following orders should not be made: (a) the Trust is interdicted from further building or construction work on Erf 2681 until approval of building plans or provisional authorisation is obtained; (b) the Trust is interdicted from operating any restaurant on Erf 2681 until building plan approval, occupancy certificate or written permission, and trading licences are granted; (c) the Trust is interdicted from occupying any part of the buildings on Erf 2681 until an occupancy certificate or written permission is granted.
  • Paragraphs 3.1 and 3.3.2 of the order operate as interim interdicts with immediate effect pending the return day.
  • Service of the order shall be effected on Windfall 32 Restaurant (Pty) Ltd and displayed on the restaurant notice board and/or staff room.
  • Filing of additional affidavits and heads of argument shall be done in accordance with the Uniform Rules of Court.
  • All issues of costs stand over for determination on the return date.

Source and reliance status

Western Cape High Court, Cape Town

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Judgment reading view

Judgment text

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Source document

Western Cape High Court, Cape Town

Order

[2010] ZAWCHC 204

Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE No: 6214/2010

In the matter between:

DIANA LIEBENBERG …...........................................................................................Applicant

and

GERARD FRATER N O …...........................................................................First Respondent

YVETTE FRATER N O …........................................................................Second Respondent

JACOBUS PETRUS ROSSOUW N O …....................................................Third Respondent

THE GERARD FRATER FAMILY TRUST …............................................Fourth Respondent

DRAKENSTEIN MUNICIPALITY …..............................................................Fifth Respondent

AND

CASE No: 19763/2010

DRAKENSTEIN MUNICIPALITY …..........................................................................Applicant

ORDER HANDED DOWN ON : 23 SEPTEMBER 2010

MOOSA, J:

Having read the papers filed of record and having heard counsel, it is ordered as follows:

The forms and the periods prescribed by the Uniform Rules of Court are dispensed with to the extent necessary and the applications are heard as matters of urgency in accordance with Rule 6(12).

In terms of Rule 10 of the Uniform Rules of Court, the application brought by the Drakenstein Municipality under case No 19763/2010, is consolidated with the application brought by Diana Liebenberg under case No 6214/2010. For the purpose of convenience the parties are cited as in the application of Diana Liebenberg (case No 6214/2010).

A Rule Nisi is hereby issued, calling upon the first to fourth respondents (“the Trust”) to show cause, if any, on 8 December 2010, why an order should not be granted in the following terms:

3.1 the Trust is interdicted and restrained from causing or permitting any further building or construction work to be undertaken on Erf 2681, Paarl (“Erf 2681”), until such time as it has obtained approval of building plans reflecting the construction in fact undertaken or intended to be undertaken on Erf 2681, alternatively provisional authorisation under s 7(6) of Act 103 of 1977 in respect thereof ;

3.2 the Trust is interdicted and restrained from causing or permitting the operation of the Primi Piatti restaurant or any other

restaurant on the remainder of Erf 2681, Paarl until such time as all of the following have been granted:

3.2.1 approval of building plans reflecting the construction in fact undertaken or intended to be undertaken on Erf 6281, alternatively

provisional authorisation under s 7(6) of Act 103 of 1977 in respect thereof;

3.2.2 an occupancy certificate, alternatively written permission to use the building under s 14(1A) of Act 103 of 1977;

3.2.3 appropriate trading licences.

3.3 The Trust is interdicted and restrained from:

3.3.1 occupying or permitting occupation of that part of the building from which the restaurant on Erf 2681 is being operated;

3.3.2 occupying or permitting occupation of any other part of the buildings on Erf 2681 until such time as an occupancy certificate,

alternatively written permission to use the building under s 14(1A) of Act 103 of 1977, has been granted.

3.4 ordering the Trust to pay the costs of applicant and that of fifth respondent, which cost shall include the costs of two counsel,

where applicable, jointly and severally, the one paying the other to be absolved.

Paragraphs 3.1 and 3.3.2 of the Order shall operate as an interim interdict with immediate effect pending the return day.

Service of this Order shall be effected on Windfall 32 Restaurant (Pty) Ltd in the person of Elizabeth Frater and on the representative of the employees and/or the trade union and a copy thereof shall be displayed prominently on a notice board of the restaurant and/or in the staff room.

Filing of additional affidavits and heads of argument shall be done in accordance with the Uniform Rules of Court.

All issues of costs stand over for determination on the return date.

BY ORDER OF THE COURT

REGISTRAR

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Setlogelo v Setlogelo 1914 AD 221

Case cited

National Building Regulations and Building Standards Act 103 of 1977

Legislation

Legislation referenced in the available case record.

Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

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