Intercape Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Citation: 2010 (5) SA 367 (WCC)

Intercape Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs and Others
2010 (5) SA 367 (WCC)

2010 (5) SA p367

Citation	2010 (5) SA 367 (WCC)
Case No	20952/08
Court	Western Cape High Court, Cape Town
Judge	Rogers AJ
Heard	June 8, 2009; June 9, 2009
Judgment	June 24, 2009
Counsel	JA le Roux SC (with D Borgström) for the applicants.; MA Albertus SC (with G Bofilatos) for the first and fourth respondents.; No appearance for the second or third respondents (but S van Zyl filing heads of argument for the third respondent).; A Katz as amicus curiae.

Flynote : Sleutelwoorde E

Township — Land Use Planning Ordinance 15 of 1985 (C) — Whether binding F on State — State bound by ordinance.

Statute — Interpretation — Presumptions — Presumption that State not bound by legislation unless enactment provides so expressly or by necessary G implication — Quaere: Whether presumption remaining applicable.

Nuisance — What constitutes — Person's acts on his property attracting other individuals — These individuals congregating in street and causing nuisance — Such person's conduct may give rise to actionable nuisance. H

Headnote : Kopnota

The State is bound by the Land Use Planning Ordinance 15 of 1985 (Cape). (Paragraphs [102], [108] and [113] at 391I, 393E and 395A - B.) Quaere: whether the presumption that the State is not bound by legislation unless the enactment so provides expressly or by necessary implication, remains applicable. (Paragraphs [96] - [102] at 389H - 391I.)

In principle, what a person does on his property may give rise to an actionable I nuisance even though the nuisance is caused by persons who are attracted to the premises and congregate in the street, and even though the police could be expected to maintain law and order in the street. Plainly there will be cases where the occasional obstructing of public areas will not be regarded as an unlawful nuisance to neighbours. (Paragraph [163] at 408C - E.) J

2010 (5) SA p368

Cases Considered

Annotations A

Reported cases

Southern Africa

Administrator, Cape v Raats Röntgen and Vermeulen (Pty) Ltd 1992 (1) SA 245 (A): dicta at 262A - F applied

Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A) ((1991) 12 ILJ 259): referred to B

BEF (Pty) Ltd v Cape Town Municipality and Others 1983 (2) SA 387 (C): referred to

City of Cape Town and Another v Robertson and Another 2005 (2) SA 323 (CC) (2005 (3) BCLR 199): referred to

Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (4) SA 1 (CC) (2005 (1) SACR 1; 2005 (2) BCLR 103): referred to C

Dorland and Another v Smits 2002 (5) SA 374 (C): referred to

East London Western District Farmers' Association and Others v Minister of Education and Development Aid and Others 1989 (2) SA 63 (A): considered

Esterhuyse v Jan Jooste Family Trust and Another 1998 (4) SA 241 (C): referred to D

Evans v Schoeman NO 1949 (1) SA 571 (A): referred to

Hayes and Another v Minister of Finance and Development Planning, Western Cape, and Others 2003 (4) SA 598 (C): referred to

Herrington v Johannesburg Municipality 1909 TH 179: applied

JL Armitage v Pietermaritzburg Corporation & GS Armitage (1908) 29 NLR 91: approved E

Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114 (C): considered

Laskey and Another v Showzone CC and Others 2007 (2) SA 48 (C): referred to

Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho Intervening) 2001 (3) SA 1151 (CC) (2001 (7) BCLR 652): referred to F

Minister of Water Affairs and Forestry and Others v Swissborough Diamond Mines (Pty) Ltd and Others 1999 (2) SA 345 (T): referred to

Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC and Others G 2004 (2) SA 81 (SE): referred to

Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) ([2004] 3 All SA 1): considered

Patz v Green & Co 1907 TS 427: referred to

Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A): applied

SA Motor Racing Co Ltd and Others v Peri-Urban Areas Health Board and Another H 1955 (1) SA 334 (T): considered

Sachs v Donges NO 1950 (2) SA 265 (A): dictum at 306 - 307 doubted

Somfongo and Another v Government of the Republic of South Africa and Others 1995 (4) SA 738 (TkS): referred to

South African Railways and Harbours v Smith's Coasters (Prop) Ltd 1931 AD 113: considered

South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A): referred to I

Thompson v Port Elizabeth City Council 1989 (4) SA 765 (A): referred to

Transvaalse Raad vir die Ontwikkeling van Buitestedelike Gebiede v Steyn Uitzicht Beleggings (Edms) Bpk 1977 (3) SA 351 (T): referred to

Union Government v Rosenberg (Pty) Ltd 1946 AD 120: considered

Union Government v Tonkin 1918 AD 533: considered J

2010 (5) SA p369

United Technical Equipment Co (Pty) Ltd v Johannesburg City Council A 1987 (4) SA 343 (T): referred to

Yellow Star Properties 1020 (Pty) Ltd v MEC, Department of Development Planning and Local Government, Gauteng 2009 (3) SA 577 (SCA): referred to.

Canada B

Prince George Pulp & Paper Ltd v Newell (1979) 13 BCLR 171: referred to

Strand Theatre Co v Cahill & Co [1920] 61 SCC 100: referred to.

England

Barber v Penley [1893] 2 Ch 447: referred to

Boarland (Inspector of Taxes) v Madras Electric Supply Corporation (In C Liquidation) [1953] 2 All ER 467 (Ch): referred to

Boarland (Inspector of Taxes) v Madras Electric Supply Corporation (In Liquidation) [1954] 1 All ER 52 (CA): referred to

Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53 (HL): referred to

Dwyer v Mansfield [1946] 2 All ER 247 (KB): referred to D

Lyons, Sons & Co v Gulliver [1914] 1 Ch 631 (CA): referred to

Sedleigh-Denfield v O'Callaghan and Others [1940] AC 880 ([1940] 3 All ER 349 HL): referred to

Vanderpant v Mayfair Hotel Company Ltd [1930] 1 Ch 138: referred to.

Unreported cases E

Tergniet and Toekoms Action Group and Others v Outeniqua Kreosootpale (Pty) Ltd and Others (CPD case No 10083/2008, 23 January 2009): referred to.

Statutes Considered

Ordinances

The Land Use Planning Ordinance 15 of 1985 (Cape), s 39(2)(a). F

Case Information

An application for declaratory and mandatory relief. The facts appear from the judgment of Owen Rogers AJ.

JA le Roux SC (with D Borgström) for the applicants.

MA Albertus SC (with G Bofilatos) for the first and fourth respondents.

No appearance for the second or third respondents (but S van Zyl filing heads of argument for the third respondent). G

A Katz as amicus curiae.

Cur adv vult.

Postea (June 24). H

Judgment

Owen Rogers AJ:

Introduction

[1] The applicants own or occupy various premises in the vicinity of I Montreal Drive, Airport Industria, Western Cape. The third respondent, Cila Executive Apartments 1 CC (Cila), is the owner of a property in the same area, namely erf 115973 Montreal Drive. The first respondent is the Minister of Home Affairs. The Department of Home Affairs (the DoHA or simply the Department) occupies erf 115973 and uses it as a refugee reception office (the refugee office). The DoHA's occupation is J

2010 (5) SA p370

Rogers AJ

A by virtue of a lease between Cila and the Department of Public Works (the DoPW). The Minister of Public Works has been joined as the fourth respondent. The second respondent is the Municipality of Cape Town (the City), in whose area the properties fall.

[2] The applicants launched the present application on 18 December B 2008 as one of urgency. They seek an order that the DoHA cease operating the refugee office on erf 115973. They do so on the basis (and seek declaratory orders to the effect) that the operation of the refugee office on the property contravenes the City's zoning scheme and that it in any event constitutes a common-law nuisance. (The applicants also C alleged in their founding papers that the operation of the refugee office violated various constitutional rights of the applicants, their employees and invitees, but this was not pressed as a separate cause of action at the hearing.) Initially the Minister of Public Works was not cited. At the first hearing of the application on 10 March 2009 counsel for the Minister of Home Affairs argued that the joinder of the Minister of Public Works was D necessary as the DoPW was the lessee of the property. On 13 March 2009 Baartman AJ ruled that such joinder was necessary and postponed the application to allow for such joinder. The costs of that hearing stood over for later determination. The Minister of Public Works was thereafter joined.

E [3] The two Ministers and Cila oppose the application. Mr Albertus SC and Mr Bofilatos appeared for the Ministers. Ms Van Zyl filed heads of argument on behalf of Cila but did not appear at the hearing. I was told that this was due to costs constraints. The applicants were represented by Mr Le Roux SC and Mr Borgström. At the request of the court Mr Katz F appeared as an amicus, primarily with a view to making submissions as to what order the court could and should make if the applicants established the alleged unlawfulness of the DoHA's conduct of the refugee office but also, more generally, to provide a voice for asylum seekers whose interests could be affected by the relief sought by the applicants. Mr Katz's willingness to perform this task at very short notice G is much appreciated by the court.

The Montreal Drive enclave

[4] The area in question (the Montreal enclave) lies at the apex of the H triangle created by the N2 highway and Borcherds Quarry Road. The refugee office and the properties owned or occupied by the applicants are accessed by turning off Borcherds Quarry Road into Montreal Drive. There are ten erven abutting Montreal Drive to the northwest and...