Berg River Municipality v Zelpy 2065 (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 2013 (4) SA 154 (WCC)

Berg River Municipality v Zelpy 2065 (Pty) Ltd
2013 (4) SA 154 (WCC)

2013 (4) SA p154

Citation	2013 (4) SA 154 (WCC)
Case No	7715/12
Court	Western Cape High Court, Cape Town
Judge	Rogers J
Heard	February 28, 2013
Judgment	April 8, 2013
Counsel	J Newdigate SC ( with EF van Huyssteen) for the applicant.; A Erasmus for the respondent.

Flynote : Sleutelwoorde B

Local authority — Buildings — Building plans — Approval — Occupation of buildings erected without approval — Section impliedly prohibiting use and occupation of such buildings — National Building Regulations and Building Standards Act 103 of 1977, s 4(1).

C Local authority — Buildings — Building plans — Approval — Permission to use building pending issue of certificate of occupancy — Provision not applying to building erected without approval — National Building Regulations and Building Standards Act 103 of 1977, s 14(1A).

Headnote : Kopnota

In this case Z erected a building without the approval required by s 4(1) of the D National Building Regulations and Building Standards Act 103 of 1977, and the municipality later applied to interdict it using or occupying the building. The court held that s 4(1) impliedly prohibits use and occupation of a building erected without approval under the section, and that s 14(1A) (permission to use a building before issue of a certificate of occupancy) did not apply to a building erected without approval. It ultimately granted the E interdict. (Paragraphs [31] and [39] – [40] at 163F – 164B and 168C – G.)

Cases Considered

Annotations

Case law

Absa Bank Ltd v SACCAWU National Provident Fund [2012] 1 All SA 121 (SCA): F referred to

American Natural Soda Ash Corporation and Another v Competition Commission and Others 2005 (6) SA 158 (SCA) ([2005] 3 All SA 1): referred to

Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC) (2003 (2) BCLR 111): referred to

Bannatyne v Bannatyne 2003 (2) SA 359 (SCA): referred to

G Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449): referred to

Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA 181 (CC) (2009 (10) BCLR 978; [2009] ZACC 11): referred to

Booth NO v Minister of Local Government, Environmental Affairs and Development Planning [2013] ZAWCHC 47: referred to

H Caroluskraal Farms (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk; Red Head Boer Goat (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk; Sleutelfontein (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk 1994 (3) SA 407 (A): referred to

Commissioner for Inland Revenue v Golden Dumps (Pty) Ltd 1993 (4) SA 110 (A): I referred to

Ebrahim v Twala and Others 1951 (2) SA 490 (W): referred to

Ellis Park Stadium Ltd v Minister of Justice and Another 1989 (3) SA 898 (T): referred to

Fish Hoek Primary School v GW 2010 (2) SA 141 (SCA): referred to

Food and Allied Workers' Union and Others v Scandia Delicatessen CC and Another J 2001 (3) SA 613 (SCA): considered

2013 (4) SA p155

Independent Outdoor Media (Pty) Ltd v City of Cape Town [2013] ZASCA 46: A referred to

Johannesburg City Council v Berger 1939 WLD 87: referred to

Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) (2008 (1) BCLR 1; [2007] ZACC 20): dictum in para [192] considered

National Director of Public Prosecutions and Another v Mohamed NO and Others B 2003 (4) SA 1 (CC) (2003 (1) SACR 561; 2003 (5) BCLR 476): considered

Palvie v Motale Bus Service (Pty) Ltd 1993 (4) SA 742 (A): dictum at 749C applied

R v Milne and Erleigh (7) 1951 (1) SA 791 (A): referred to

Randleigh Buildings (Pty) Ltd v Friedman 1963 (3) SA 456 (D): referred to C

Rennie NO v Gordon and Another NNO 1988 (1) SA 1 (A): applied

S v Motswi 1982 (1) SA 172 (T): referred to

S v Sparks NO and Others 1980 (3) SA 952 (T): referred to

Setlogelo v Setlogelo 1914 AD 221: applied

Summit Industrial Corporation v Claimants against the Fund Comprising the Proceeds of the Sale of the MV Jade Transporter 1987 (2) SA 583 (A): referred to D

Taj Properties (Pty) Ltd v Bobat 1952 (1) SA 723 (N): referred to

Tzaneen Local Transitional Council v Louw et Uxor and Another 1996 (2) SA 860 (T): referred to.

Statutes Considered

Statutes E

The National Building Regulations and Building Standards Act 103 of 1977, ss 4(1) and 14(1A): see Juta's Statutes of South Africa 2011/12 vol 2 at 2-326 and 2-329.

Case Information

J Newdigate SC (with EF van Huyssteen) for the applicant.

A Erasmus for the respondent. F

An application to interdict the use and occupation of buildings. The order is in para [58].

Judgment

Rogers J:

Introduction G

[1] The respondent company (Zelpy) is the owner of property within the area of jurisdiction of the applicant municipality (the Municipality). The Municipality seeks a final interdict preventing Zelpy from occupying or using certain buildings on the property constructed in violation of s 4 of the National Building Regulations and Building Standards Act 103 of 1977 H (the Act) until an occupancy certificate has been issued by the Municipality in terms of s 14(1) of the Act.

[2] Zelpy opposes the interdict application and has filed a counter-application in which it seeks an order directing the Municipality to take a decision on Zelpy's request for permission to use the buildings in I question in terms of s 14(1A), alternatively reviewing and setting aside the Municipality's refusal of such permission.

[3] The property in question is the Remainder of Portion 5 of the farm Rietfontein, about 4 km south of Piketberg. As at 1986 there existed on the property a large Victorian house known as Dunn's Castle, and three J

2013 (4) SA p156

Rogers J

A chalets (converted stables). The owner ran the property as a commercial guest facility. Zelpy acquired the property in 2003. It has continued to run the business under the name Dunn's Castle Guest House. The property is just under 35 ha in extent. Most of the property is covered with indigenous vegetation. The property has apparently never been B farmed.

[4] Early in 2004 Zelpy began construction of a double-storey conference centre and four freestanding double-storey residential structures, each structure containing four self-catering apartments. Zelpy did not obtain approval of building plans as required by the Act, though it claims C to have received oral permission from a municipal engineer whose name Zelpy's deponent is unable to recall, and to have been brought under the impression that plans did not need to be approved. [1] The unlawful building activity was discovered by the Municipality's building inspector in March 2004. At this stage the work was only at the foundation phase. The inspector also ascertained that the unapproved building plans would D not be able to be approved unless the property were rezoned. Pursuant to the Land Use Planning Ordinance 15 of 1985 (LUPO) the property was at that time zoned Agricultural Zone 1. The Municipality would not be able to approve the building plans, unless the property were rezoned Resort Zone 1.

E [5] Zelpy ignored a notice to cease work. In May 2004 the Municipality sought an interdict in the Piketberg Magistrates' Court (the PMC), which Zelpy opposed. On 14 May 2004 the PMC made an order by agreement that Zelpy could continue building, provided that by 10 June 2004 it supplied evidence to the Municipality that it had lodged a rezoning F application and provided further that if the rezoning were not granted the Municipality could apply for demolition of the unlawful structures. In other words, Zelpy was permitted to continue building at its own risk.

[6] Zelpy failed to lodge a rezoning application by the specified date. In July 2004 the Municipality renewed its application for demolition. By G this stage the construction of the unlawful buildings was, according to Zelpy, complete. Zelpy opposed the demolition application, alleging that it had instructed a firm of land surveyors to prepare a rezoning application. On 26 July 2004 the PMC ordered that the building work could continue (though it was apparently already complete), but that the Municipality could apply for demolition if the rezoning application H failed.

[7] In September 2004 Zelpy lodged its rezoning application in which it sought to rezone the areas covered by the new buildings as Resort Zone 1, the rest of the farm to remain Agricultural Zone 1. This application, I though lodged with the Municipality, was ultimately required to be

2013 (4) SA p157

Rogers J

adjudicated by the Department of Environmental Affairs and Development A Planning in the Western Cape Provincial Government (the DEA). The DEA advised Zelpy that it would need also to make application for approval in terms of s 24G of the National Environmental Management Act 107 of 1998. These processes occupied several years. On 3 October 2007 the DEA informed Zelpy that an environmental impact assessment B would have to be undertaken. This assessment was submitted in mid-2008. On 28 August 2009 the DEA refused the rezoning application. Upon request the DEA furnished its reasons on 7 December 2009. It appears from these reasons that the DEA's approach was not to permit a rezoning of this kind, unless the agricultural property in question possessed a unique recreational resource which set it apart from C surrounding agricultural properties. Zelpy's property, in the DEA's view, did not qualify. The new structures also exceeded the height and density guidelines for Resort Zone 1. Accordingly, only the structures which existed as at 1986 would be permitted to function as a resort.

[8] Zelpy lodged an appeal to the relevant provincial Minister. On D 8 February 2011 the Minister dismissed the...