Huisamen and Others v Port Elizabeth Municipality

• Jurisdiction: South Africa
• Judge: Leach J, Kroon J, Leach J, Mpati J
• Judgment Date: 21 February 1997
• Citation: 1998 (1) SA 477 (E)
• Docket Number: 339/96
• Hearing Date: 07 February 1997
• Counsel: HJ Van Der Linde for the appellants RG Buchanan for the respondent
• Court: Eastern Cape Division

Leach J:

The appellants are the trustees for the time being for the Huisamen Family Trust D which is the owner of the immovable property more fully described as erf No 1479 Walmer situate at the corner of Seventh Avenue and Villiers Road, Walmer, Port Elizabeth. It is common cause that at all material times the property was zoned as 'Residential 1' in terms of a zoning scheme for the city of Port Elizabeth established under the Land Use and Town E Planning Ordinance 15 of 1985 ('the ordinance') which specifically excludes the property being put to use for business purposes. The respondent in the appeal, the Municipality of the City of Port Elizabeth, obtained an order interdicting and restraining the appellants from using or permitting the use of the property for any purposes in contravention of the zoning scheme, the F interdict to be effective from a date 20 days after judgment. With the leave of the Court a quo the appellants now appeal to this Court contending that the interdict should not have been granted.

It is undisputed that the trust let the property in question to a company known as Armsec Holdings which, at all material times, used the buildings on the property as its offices, a use G which violates the zoning scheme. Notwithstanding such unauthorised use Mr Van der Linde, who appeared on behalf of the appellants, advanced various grounds on which he submitted the learned Judge in the Court a quo had erred in granting the interdict.

As an aside I would mention that in his heads of argument Mr Van der Linde initially H submitted that the ordinance, which had been legislated by the now defunct provincial government of the Province of the Cape of Good Hope and which was assigned to the province of the Eastern Cape under s 235(a) of the Constitution of the Republic of South Africa Act 200 of 1993 (see Proc 111 of 1994 published in Government Gazette 15813 of I 17 June 1994), had not been effectively assigned as the administration of the ordinance had not been properly assigned to a named functionary. His further submission, as I understood it, was that consequently the ordinance could not be administered and therefore it, and any zoning scheme established thereunder, were unenforceable. I regret that I had some difficulty in understanding the argument, a difficulty which fortunately was overcome by counsel having informed us J

Leach J

from the Bar that he no longer intended to persist therewith as he had been assured that a A member of the Executive Council for the Eastern Cape had in fact been designated as the functionary to whom the administration of the ordinance had been assigned. It is therefore unnecessary to deal with this aspect and so I turn to consider the arguments with which appellants' counsel persisted in the appeal. B

Firstly, it was submitted that the learned Judge in the Court a quo had erred in holding that the town clerk who instituted the proceedings in the name of the respondent had enjoyed the requisite authority to do so. The respondent's founding affidavit was deposed to by the C respondent's town clerk, one Botha, who stated that he had been authorised to bring the application in terms of certain powers delegated to him by the respondent. In support for this allegation he attached an extract from a written delegation to the town clerk which, inter alia, provides:

'3(a) To consider and take whatever action he may deem necessary in all legal actions, legal D applications and arbitrations, and in respect of all claims by and against the Council: to take all action necessary to conduct litigation and arbitration in the best interests of the council.

. . .

(c) In the circumstances in which, in his opinion, immediate action is required to protect the interests of the Council or to enforce the regulations . . . or town planning scheme of the council by way of interdict, mandamus or other court order. . . .' E

(My emphasis.)

Seizing upon the words which I have emphasised in clause 3(c) of the delegation, Mr Van der Linde pointed out that Botha had failed specifically to aver that he had entertained the opinion F that immediate action against the respondents was required. This, it was submitted, was fatal to the application.

I am of the view that this argument is without substance. At the outset I do not think that it is open to the respondents to advance the contention that Botha was not duly authorised to bring G the application. His specific allegation that he had been so authorised, contained in para 2 of his founding affidavit, was never placed in issue by the respondents. Indeed the first appellant, who deposed to the appellants' answering affidavit, while contending that the application was fatally defective as Botha had failed to confirm the affidavits which contained the factual averments upon which the respondent relied (an argument not persisted in by the appellant, H certainly not before this Court) went on to state that Botha was 'die Stadsklerk van applikant en die persoon wat gemagtig is om die aansoek te loods'. Although Mr Van der Linde argued before us that this passage in fact placed Botha's locus standi to act on behalf of the respondent in issue, I cannot agree. In my view it is apparent from the papers that the I appellants clearly accepted that Botha was indeed the person duly authorised to launch the application on behalf of the respondent. That being so, the appellant in my opinion cannot now be heard to contend to the contrary.

But even if my view in that regard is incorrect, the answer to the appellants' contention was that given by the learned Judge in the Court a quo, namely that it is implicit in Botha having launched the application J

Leach J

that he had formed the opinion that such action was necessary, particularly as the respondents A were acting in flagrant disregard of the zoning regulations. And in any event, notwithstanding the provisions of 3(c) of the written delegation to the town clerk, Botha seems to me to have been authorised under 3(a) thereof to take whatever action he might deem necessary in all B legal actions and applications and it is clear that he considered it necessary for the respondent to seek an interdict. On this ground as well, the point taken by the appellants is ill-founded.

I am therefore of the view that the appellants' contention that Botha was not shown to have been duly authorised to act on behalf of the respondent cannot succeed. C

The assignment of the ordinance to the competent authority within the jurisdiction of the government of the Province of Eastern Cape which, I have already mentioned, occurred on 17 June 1994, provides the...