Botha v White

• Jurisdiction: South Africa
• Judge: Patel J
• Judgment Date: 20 March 2003
• Counsel: J J Teessen for the applicant. P M van Ryneveld for the respondent.
• Hearing Date: 12 November 2002
• Court: Transvaal Provincial Division
• Docket Number: 20896/02

Patel J:

A. Preface

[1] This judgment comprises two parts. The first is the judgment on the determination of the application for a final interdict. The second is a postscript. It arises from the applicant's conduct after G judgment was reserved. It is a matter of some concern.

B. Part I: Merits of the application

[2] This is an opposed application. It is ostensibly for a final interdict. The applicant seeks an order in the following terms: H

'1.

'n Bevel wat die respondent verbied om sake te doen as algemene handelaar, restaurant of enige ander besigheid op hoewe 50, Valtaki Landbouhoewes, distrik Bronkhorstspruit, tot tyd en wyl voorwaarde B(a) in akte van transport T10698/98, waarkragtens gemelde hoewe gehou word, opgehef of gekanselleer is en I die nodige besigheidsregte ten aansien van hoewe 50, Valtaki Landbouhoewes verleen is vir sodanige besigheidsaktiwiteite.

2.

Koste van die aansoek met inbegrip van koste soos tussen prokureur en klient. J

Patel J

3.

Verdere en/of alternatiewe regshulp.' A

[3] Valtaki Agricultural Holdings comprises agricultural plots in the district of Bronkhorstspruit. The district is under the administration of the Kungwini Local Municipality. The applicant has been the registered owner of holding 37 since 31 March 1998. The respondent is a 67-year-old widow. She has been the registered owner of plot 50 since 4 February 1998. B

[4] It is common cause that the deeds of transfer of their respective agricultural holdings restrict the use of any portion of land for the sole purposes of agriculture, horticulture or keeping of bees. Clause B(e) in the respondent's deed reads: C

'No store or place of business whatsoever may be opened or conducted on the holdings except with the written approval of the Board and such approval shall not be given in respect of any holding other than holding 36, provided that the nature of any business which may be so authorised shall also be subject to the written approval of the Board and that such business shall not be and (sic) Eating House of any description.' D

[5] It is also common cause that the respondent is conducting a general dealer's business and a liquor store from her holding. Under the circumstances, the applicant seeks a final interdict to restrain her from conducting any business from her holding. The requisites for the granting of a final interdict are well established. They are a clear right, an injury actually committed or reasonably E apprehended and the absence of any other satisfactory remedy (Setlogelo v Setlogelo 1914 AD 221 at 227).

[6] The fundamental dispute is not whether the applicant has established a clear right but, more pertinently, the issue that is germane is whether the applicant has satisfied each of the requirements for a final interdict. Since the applicant is seeking final relief in motion proceedings, the matter is approached in F accordance with the rule that a final order may be granted only if the facts averred in the applicant's affidavits which are admitted by the respondent, together with the facts alleged by the respondent, justify such an order (Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C). G

[7] The fact that the respondent is conducting a business from the holding is not in dispute. What is disputed is whether, from 1996, the previous owner of the holding conducted a business on the property. According to the respondent, when she acquired the holding, the business was already in existence for two years. She continued to carry on the business since it provided an H income for her. On her version, she was aware that the previous owner traded without a licence. However, what is really material is that, at all relevant times after acquiring the property, she had the intention to obtain the requisite permission to trade and licences to sell liquor. I

[8] She applied for licences to sell liquor and run an eating house. The applicant was aware that a liquor licence was to be issued to the respondent in terms of s 19 of the Liquor Act 27 of 1989. On 1 September 1998, the Finance and Economic Affairs Department of the Gauteng Provincial Government indicated to the respondent that: J

Patel J

'The Special Licence (Eating House) will be issued upon receipt of a certificate by the designated police officer . . . A

(a)

. . .

(b)

. . .

The following conditions/requirements have been imposed and shall be complied with before the licence will be issued. Proof of business rights and the right to trade in alcohol, photos detailing internal features and restriction to area interval and adjacent area.' B

[9] Subsequently, on 7 September 1999, D J Richards, of Liqkor Liquor Licence Consultants, addressed a letter, on behalf of the respondent, to the Gauteng Liquor Board for the suspension of the condition of the provision of proof of business rights and the right to trade in alcohol imposed on the conditional licence. On 30 September 1999, the Bronkhorstspruit Local Council C indicated that it would support her application for liquor licences. Thereafter, the Gauteng Liquor Board issued a sorghum beer licence on 13 September 1999, an eating house licence on 8 November 1999 and a liquor licence on 2 November 2000. These licences permitted her to conduct trade under the names of Ivy's General Dealer, Ivy's D Liquor Store and Ivy's Eating House. Each of these licences stated:

'The determinations, consent, approvals and authorities which have been granted, are set out in annexure(s) hereto.'

[10] In the replying affidavit, the applicant admits that he was aware that the respondent obtained these licences but E avers that the granting of the licences did not authorise her to use the licences in conflict with the title deed and zoning conditions. Thus, the respondent was and is trading from her holding, albeit in breach of the condition of her deed of transfer of her property. F

[11] From about 17 October 2001, Johan van der Merwe, a firm of town and regional planners, acting on the respondent's behalf, initiated an application in terms of the provisions of ss 21, 22 and 26 of the Environment Conservation Act 73 of 1989 to secure business rights for her holding, for the excision of the agricultural holding and, simultaneously, for an exemption from the G regulations under environmental legislation. In support of her application, the notable aspects, inter alia, are:

'3.1

The applicant, Ivy White, lives on the property. She runs from her house a store (general dealer), which largely caters for farm labourers in the large area. H

3.2

She also makes small meals from her kitchen, which she sells to farm labourers. She also sells liquor to these labourers.

3.3

It is important to note that the Local Council of Bronkhorstspruit by means of a letter dated 30 September 1999 approved a liquor licence for the above property. The Local Council was therefore already convinced in 1999 that a need for such a type of use I exists in the area.

3.4

The applicant has therefore established a concern, which caters almost exclusively to the needs of the farm labourers. These people are all from disadvantaged communities and are making full use of the services as provided by the applicant. These people are normally not highly paid due to their lack of secondary education and who lack private transport are most J

Patel J

grateful for the services as offered by the applicant. A list of support in terms of this statement will be A supplied upon request.

3.5

Taking the distance from formalized shopping centers where these facilities are also available into consideration it becomes clear that the application is providing a service to a very important part of the local community.

3.6

. . .

3.7

. . . B

3.8

. . . .'

[12] On 28 May 2002, the Kungwini Local Municipality advised Johan van der Merwe that the application could take six months to finalise. This is not disputed by the applicant. He still maintains that it is not lawful for the respondent to conduct business from her holding. C

[13] Then, on 24 May 2002, the applicant's attorneys of record notified the respondent that she was conducting a business on her holding contrary to the title deed conditions and zoning of the property. They threatened her with proceedings in the High Court. In response, on 3 June 2002, the respondent's attorney notified the applicant's attorneys that the respondent's D application for business rights was in an advanced stage and any action on the applicant's part would be opposed. In spite of this, the applicant launched the present proceedings on 31 July 2002. The founding papers were served on the respondent on 15 August 2002. At the time, the respondent's application for business rights was still pending and it was apparent that it might take some E time before it was finalised. Under the circumstances, when the matter was argued, the respondent asked that, if the interdict were granted, then it should be stayed.

[14] Advocate Teessen, on behalf of the applicant, submitted that the undisputed facts established that the respondent F is in breach of the terms of clause B(e) and that the applicant is entitled to enforce its provision. Advocate Van Ryneveld, for the respondent, did not dispute that the respondent was in breach of that clause, but relied on certain other grounds of opposition. It is not necessary for me to consider each of these grounds for reasons that will become apparent in a moment. G

[15] The applicant is seeking a final interdict. The first and third requirements, namely, a clear right on the applicant's part and the absence of any other satisfactory remedy, have been met. But, this matter really turns on the second requirement of injury actually committed or reasonably...