Cape Town Municipality v Abdulla

• Jurisdiction: South Africa
• Judge: Van Winsen AJP, Diemont J and Van Heerden J
• Judgment Date: 18 February 1976
• Citation: 1976 (2) SA 370 (C)
• Hearing Date: 24 November 1975
• Court: Cape Provincial Division

Van Winsen, A.J.P.:

This is an appeal against the decision of the Court a quo refusing to order the removal of wire mesh D guards on the verandah of respondent's shop premises situate in Plumstead.

It appears from the record that these wire mesh guards were erected in 1939 to enclose a portion of the verandah of the shop premises in order to allow the storing and display therein of vegetables, fruit, cool drinks, etc., sold on the premises. A further purpose was to keep hooligans and animals away from E the premises. In 1939 there was no municipal regulation controlling the erection of such guards, and the erection of the guards in question without permission from appellant was legal. In April 1970, however, appellant, acting under powers conferred by sec. 241 (50) (a) and (b) of Ord. 19 of 1951 (C), as amended, passed a regulation, viz. 2002 promulgated in F Provincial Gazette 299, dated 10 April 1970, prohibiting the erection of a structure, object or device such as the guards in question save with the consent of appellant Council, and in accordance with certain structural requirements enumerated in sec. 3 of the regulation. It is common cause that the guards in question do not comply with these requirements. Sec. 4 of the regulation provides that if the structure is installed before the coming into force of the regulation and does G not comply with the requirements aforesaid then appellant Council may serve a notice in writing under the hand of the City Engineer on the owner thereof requiring him to alter, demolish or remove such structure by a date specified in the notice.

The aforesaid regulation was repealed and replaced by reg. 214 of 1972 which substantially re-enacts the terms of the repealed H regulation.

It appears that an inspection of respondent's property on 14 March 1972 revealed to officers of appellant Council that the guards in question failed in certain respects to comply with the structural requirements prescribed by the regulation. As a result, an official acting on behalf of the City Engineer to appellant Council addressed a letter, dated 10 May 1972, to respondent informing him of the result of the inspection and calling upon him to remove the guards which were stated to be in conflict with the regulation (wrongly referred to in the letter as reg. 2002). This notice having been ignored, a

Van Winsen AJP

registered letter dated 27 July 1972 was addressed to respondent under the hand of the City Engineer repeating his request for a removal of the guards and threatening that if respondent failed to respond to the request the Council would A at respondent's expense itself remove the guards. This letter achieved as little as the first, and was followed by a further letter, dated 25 October 1972, addressed to the respondent threatening Supreme Court proceedings should respondent fail to remove the guards. To this letter respondent's attorneys replied on 13 November 1972 to the effect that they were investigating the matter. Not having received any further communication from the attorneys, and the guards not having B been removed, appellant on 26 July 1973 launched the present proceedings to compel their removal.

It appears from respondent's replying affidavit that the latter's attorneys had in fact on 14 December 1972 addressed a letter on the subject to the City Engineer, which letter was never received by the latter. In this letter annexed to his C affidavit respondent's attorney states that his client was prepared to enlarge and rebuild his premises so as to incorporate the full area of the verandah, but that he understood that appellant Council might not pass the plans because of the likelihood of road-widening which might affect respondent's property. The letter contained a request that appellant notify respondent of its intention in regard to the matter and that if there was no objection on the part of D appellant the plans in question would be submitted without delay.

When the matter was argued in the Court a quo Mr. Dison advanced innumerable reasons why the Court should refuse the order prayed for. These are very amply dealt with by BAKER, J., in his judgment delivered on 17 July 1974. [*] Suffice to say at E this stage that he did not consider any of them as affording a good reason for refusing appellant's prayer. What he did conclude, however, was that while appellant was justified in bringing the application in the first place it was not justified, once it had been made aware, upon receipt of respondent's replying affidavit, that respondent had by way of the letter of 14 December 1972 made certain representations to F it in regard to the matter, in ignoring such representations. He accordingly postponed the hearing of the application then before him in order to enable the respondent to give consideration to these representations. He ordered that the results of such consideration be placed before the Court on affidavit. Respondent, on 26 July 1974, lodged a notice of appeal against this judgment and since the order of the Court a G quo was interlocutory he made application for leave to appeal. Leave was refused on 12 August 1975.

In the meantime, however, appellant had acted upon the judgment of the Court a quo requiring it to give further consideration to the representations contained in the letter from respondent's attorney, dated 14 December 1972, and the matter was referred to the appellant's town planning committee. This committee took the view that the representations contained in H the letter did not justify the granting of a waiver of the requirements of the regulation. Nevertheless that committee heard oral representations on behalf of respondent with a view to the possibility of extending to respondent a temporary waiver for a limited period. After debating the matter the committee decided against the granting of any waiver.

Thereafter the matter was set down for a further hearing which took place on 7 October 1974. Judgment was reserved and delivered on 26 June 1975.

Van Winsen AJP

The Court a quo refused the order prayed for on the...