Van der Merwe v Coertzen and Others (22623/16) [2017] ZAGPPHC 1219 (8 December 2017)

Van der Merwe v Coertzen and Others (22623/16) [2017] ZAGPPHC 1219 (8 December 2017)

The applicant failed to establish a clear right to conduct her home business in the manner currently practised. Item 6(1) of Schedule 9 of the Town Planning Scheme is interpreted to mean that no more than six persons per day may be catered for at a home place of instruction. The applicant's practice of teaching up to 16 children per day exceeds this limit and is unlawful. Additionally, the applicant does not provide the required third parking space for her home business, further contravening the Scheme. As a result, she has no clear right to protection against interference, and her application for a final interdict must fail.

Citation
[2017] ZAGPPHC 1219
Parties
Applicant: Wilhelmina van der Merwe; Respondent: Hennie Coertzen; Respondent: Louisa Coertzen; Respondent: Gertruid Elizabeth van der Merwe; Respondent: David Botha Bekker; Respondent: Lizelle Bekker; Respondent: Leslie Jacobs; Respondent: Louise Jacobs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 December 2017
Case Number
22623/16
Procedural Posture
Civil Application / Final Interdict Application
Outcome
Application dismissed with costs, including costs of employing Senior Counsel.
Judges
JFD Brand
Legal Topics
Town Planning Scheme Interpretation, Final Interdict Requirements, Home Business Regulation, Parking Requirements, Nuisance
Land and Property Civil Procedure Town Planning Scheme Interpretation Final Interdict Requirements Home Business Regulation Parking Requirements Nuisance

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Parties

Wilhelmina van der Merwe

Applicant

Hennie Coertzen

Respondent

Louisa Coertzen

Respondent

Gertruid Elizabeth van der Merwe

Respondent

David Botha Bekker

Respondent

Lizelle Bekker

Respondent

Leslie Jacobs

Respondent

Louise Jacobs

Respondent

Procedural Posture

Civil Application / Final Interdict Application

Legal Issues

  1. 1 Whether the applicant has a clear right under the Tshwane Town Planning Scheme to conduct her home business as currently practised.
  2. 2 Whether the applicant's activities exceed the permitted number of persons under item 6(1) of Schedule 9.
  3. 3 Whether the applicant complies with the parking requirements for a home business in the complex.

Ratio Decidendi

The applicant failed to establish a clear right to conduct her home business in the manner currently practised. Item 6(1) of Schedule 9 of the Town Planning Scheme is interpreted to mean that no more than six persons per day may be catered for at a home place of instruction. The applicant's practice of teaching up to 16 children per day exceeds this limit and is unlawful. Additionally, the applicant does not provide the required third parking space for her home business, further contravening the Scheme. As a result, she has no clear right to protection against interference, and her application for a final interdict must fail.

Court Disposition

Application dismissed with costs, including costs of employing Senior Counsel.

Orders

  • The application is dismissed with costs, including the costs of employing Senior Counsel.