Johannesburg City Council v the Administrator, Transvaal and Mayofis

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson JA, Holmes JA, Trollip JA and Muller AJA
• Judgment Date: 01 October 1970
• Citation: 1971 (1) SA 87 (A)
• Court: Appellate Division

Ogilvie Thompson, J.A.:

Appellant appeals, by consent, direct to this Court against the decision of the Transvaal Provincial Division dismissing, with costs, review proceedings instituted, pursuant to the provisions of Rule 53, by it against the two respondents. in the Court below appellant sought an order A setting aside first respondent's decision, given under sec. 35 (1) of the Town-planning and Townships Ordinance, 25 of 1965 (T), hereinafter referred to as "the Ordinance", rejecting appellant's town-planning amendment scheme No. 1/259 (vide1970 (2) SA 94 (T)).

I shall refer to the first respondent as "the Administrator" B and, save where the context indicates otherwise, shall throughout do so as designating the holder of that office acting on the advice and with the consent of the Executive Committee of the Province of Transvaal (sec. 1 (i) of the Ordinance). The Director mentioned in this judgment is the Director of Local Government appointed in terms of sec. 9 of Ord. 21 of 1958 (T). All references to "the Townships Board", C or, more briefly, to "the Board", relate to the body established and functioning under chap. I of the Ordinance.

Second respondent is the registered owner of stands 247 and 248 - together measuring 7500 square feet and now consolidated as stand No. 1355 - situate on the north-west corner of the D intersection of Abel Road and Tudhope Avenue, Berea, Johannesburg. Tudhope Avenue runs from north to south towards the central city area, and Abel Road from west to east. Both streets carry a considerable volume of traffic which becomes very heavy at peak hours. Berea has a high density of residential population and in the vicinity of the above-mentioned intersection there are a considerable number of E large buildings designed for and used as flats. The aforementioned stands 247 and 248 were under the City Council's town-planning scheme No. 1/1946 originally zoned as "general residential", which, inter alia, includes flats, During January, 1965 the second respondent applied to the City Council for the stands to be re-zoned to "general business". The City F Council refused the application. An appeal under the provisions of the Townships and Town-planning Ordinance, 1931, was, however, successful; and in July, 1965 the City Council was directed to prepare an amendment scheme re-zoning the stands to "general business". The City Council, as it was obliged to do, complied with this direction and prepared an amendment scheme, known as No. 1/215, to which it, however, G itself lodged an objection, dated 15th December, 1965, the material portions of which read:

"These two stands measuring 100' X 100' are situated in a purely residential area which has been developed with large blocks of flats.

The applicant's contention that there is a need for business premises in the flat area is refuted, as no part of Berea is H further than a quarter of a mile from adequate shopping facilities provided in the Hillbrow and Yeoville area.

Furthermore, the site is at an intersection on two main arterial roads leading to the northern and easern suburbs and the erection of business premises would cause serious traffic congestion.

The Council is strongly opposed to this application."

After the advertisements prescribed by the 1931 Ordinance had been complied with, a committee of the Townships Board investigated scheme No. 1/215 on 29th April, 1966. At this investigation, whereat the City Council was represented by its senior legal adviser, an inspection in

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loco of the site and its environs was held and the oral submissions of the parties were received, but no evidence was led. No record of the proceedings was kept. In August, 1966 the Administrator, functioning under sec. 46 of the 1931 Ordinance, A approved scheme No. 1/215. The decision re-zoning the stands to "general business" was notified to the City Council by letter from the Director dated 23rd August, 1966, and was subsequently proclaimed in the Provincial Gazette of 28th September, 1966. One of the conditions, framed by the City Council itself, of scheme No. 215 was that:

"A servitude 10' wide for parking purposes shall be vested in B the Council, free of all cost, along the Tudhope Avenue and Abel Road frontages of the site."

On 22nd November, 1966 the City Council resolved to proceed with an amendment scheme - subsequently known as scheme No. 1/259 - to re-zone the aforementioned two stands from "general business" to "general residential". This resolution C was taken by the City Council adopting a recommendation of its relevant committees which read:

"Although the re-zoning of the two stands from 'general residential' to 'general business' took place only recently... the said amendment of the Town-planning Scheme was, it is submitted, a mistake, and the 'general business' zoning which the two stands now enjoy is on re-examination so contrary to sound town-planning that the Scheme should be rectified before the new use is acted upon and a wrong use of land becomes established not only in isolation but also as the precedent for a wrong pattern of development in the area."

D Second respondent unsuccessfully sought to interdict the City Council from proceeding with scheme No. 1/259. The claim for an interdict was dismissed on 15th June, 1967 by TROLLIP, J., for the same reasons as appear in the judgment delivered by him the previous day in a virtually identical claim against the City E Council, namely, the case of The Firs Investments (Pty.) Ltd. v Johannesburg City Council, 1967 (3) SA 549 (W). The City Council's attitude towards the zoning of these stands in issue was further elaborated in an undated memorandum which was subsequently put before the committee of the Board enquiring into the scheme. The opening paragraph of this memorandum read:

F "In 1966 these stands were re-zoned from 'general residential' to 'general business' despite objections from the Council. Since the re-zoning was first considered by the Townships Board and Administrator, additional facts have materially altered the situation with regard to additional shopping facilities and traffic congestion."

The memorandum then continued to discuss, at some length, the shopping facilities available to the residents of the area and G the traffic congestion therein. In regard to traffic, it was inter alia averred in the memorandum that:

"The erection of shops on this most critical corner can only aggravate an already serious traffic bottleneck and is sufficient reason in itself to justify the steps taken to re-zone the property from 'general business' to 'general residential'."

The memorandum went on to concede that the impracticability of H the aforementioned 10' wide servitude was not appreciated at the time it was drafted and to aver that parking facilities at the site were grossly inadequate. The final paragraph of the memorandum read:

"To summarise the argument, the Council is of the opinion that, because there is no need for further shops or other business in the area, the serious consequences of aggravating the traffic problems at this particular intersection and the fact that the site is too small to provide adequate parking facilities, the zoning of the sites for 'general business' uses is most undesirable quite apart from the objections in general to the creation of isolated business developments in residential areas. It considers that the views expressed in this memorandum

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are valid, necessary and urgent reasons for bringing about an amendment to the Town Planning Scheme which would be not only in the interests of the Council itself and the general public, but also of the owner of these two stands."

The second respondent lodged an objection, dated 30th November, 1967, to scheme No. 1/259, inter alia, claiming that a shopping A centre on the two stands would be a great amenity and would benefit the "thousands of flat-dwellers in the immediate vicinity" and who would thus "as pedestrians" have shopping facilities within easy reach. More specifically second respondent's objections - which clearly appear to have been compiled in reply to what had been said in the City Council's resolution of 22nd November, 1966, and in the aforementioned B undated memorandum - read as follows:

"(...