Kwadukuza Municipality v Mahomedy and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Koen J
• Judgment Date: 17 March 2023
• Docket Number: 5189/2020P
• Hearing Date: 27 February 2023
• Court: KwaZulu-Natal Division, Pietermaritzburg

Koen J:

[1]

Ownership is a conglomeration of rights and obligations. The rights include inter alia the right to possession of the res owned, the right to use it, the right to hypothecate it, etc. But an owner of a res not only has rights, but also obligations. Thus, at common law, an owner may not use property in a manner that causes harm to others. In the case of immovable property an entire body of law, commonly referred to as nuisance or neighbour law, has developed, which seeks to regulate the use of immovable property to protect the rights of neighbouring owners and occupiers. As urban areas developed, the need for the additional regulation of the development and use of immovable properties came to be recognized. Laws have accordingly been enacted, at various levels of government, to regulate the development and use of properties. These laws include, for example, the National Building Regulations and Building Standards Act 103 of 1977 (the Building Act) regulating improvements to be effected on immovable property; the National Environmental Management Act 107 of 1998 (NEMA) guarding against environmental degradation of land; and the applicant's Spatial Planning and Land Use Management (SPLUMA) By-Law [1] and Problem Buildings By-Law [2] and the applicant's local municipality town planning scheme (the scheme), [3] which permit only certain uses of certain property according to their zoning.

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[2]

The first and second respondents (collectively referred to as 'the respondents') are the registered owners of the immovable property described as Erf 771 Stanger (KwaDukuza), situate at 3 King George Road, KwaDukuza (the property).

[3]

The applicant maintains that the respondents have contravened provisions of: the Building Act, in having buildings on the property without approved plans, alternatively in having allowed the buildings on the property to fall into disrepair and to become dilapidated; NEMA in permitting pollution and degradation of the property; and the SPLUMA By-Law, the Problem Buildings By-Law, and the scheme in permitting the property to be used contrary to the zoning applicable to the property.

[4]

It accordingly brought an application against: the respondents; Elite Cars, which conducted business on the property, as the third respondent; and unidentified unlawful occupiers of the property, as the fourth respondent, seeking the following relief, as set out in its notice of motion:

'1.

It is declared that it is unlawful for the respondents or any person to conduct the following activities at the property more fully described as Erf 771 Stanger (KwaDukuza) at 3 King George Road, KwaDukuza ("the property"):

1.1

repairing motor vehicles;

1.2

servicing motor vehicles;

1.3

otherwise attending to work on motor vehicles;

1.4

any activities that result in the discharge of oil onto the property; and

1.5

any activities allied to those in sub-paragraphs 1.1 – 1.4.

2.

It is declared that all immovable structures on the property are unlawful in that no building plans have been submitted for those structures.

3.

It is declared that it is unlawful to dump waste, litter and other items on the property or to permit such items to be dumped and/or stored at the property.

4.

In respect of all built immovable structures on the property, the first and second respondents are ordered to take the steps envisaged by Section 12 of the National Building Regulations and Building Standard Act, 1977 namely, to demolish those built immovable structures within 30 days of the grant of this order.

5.

In the first and second respondents fall to comply with the order in paragraph 4 above within the specified time period, the applicant is authorised to:

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5.1

enter onto the property;

5.2

demolish all built immovable structures on the property;

5.3

claim from the first and second respondents, jointly and severally, the one paying the other to be absolved, the fair and reasonable costs incurred in such demolition;

5.4

set the matter down, on the same papers supplemented as may be necessary, for a money judgment against the first and second respondents to recover the costs contemplated in paragraph 5.3 above,

6.

The respondents are interdicted from conducting the following activities on the property:

6.1

repairing motor vehicles;

6.2

servicing motor vehicles;

6.3

otherwise attending to work on motor vehicles;

6.4

any activities that result in the discharge of oil onto the property; and

6.5

any activities allied to those in sub-paragraphs 6.1 – 6.4.

7.

The first and second respondents are ordered to take all steps necessary to restore the property to the condition it was in before the illegal activities commenced at the property and the unlawful structures were erected at the property, including, but not limited to:

7.1

removing all litter and waste;

7.2

removing all motor vehicles and vehicle parts;

7.3

attending to clean up and remedy all oil spillages and related environmental pollution on the property;

7.4

report to the applicant in writing on what steps it has taken pursuant to this order within 30 calendar days of the grant of this order.

8.

If the first and second respondents fail to comply with the order in paragraph 7 above to the reasonable satisfaction of the applicant, the applicant is authorised to:

8.1

enter onto the property;

8.2

attend to the remediation work outlined in paragraph 7 above or any further remediation work reasonably required;

8.3

claim from the first and second respondents, jointly and severally, the one paying the other to be absolved, the fair and reasonable costs incurred in effecting such remediation;

8.4

set the matter down, on the same papers supplemented as may be necessary, for a money judgment against the first and second respondents to recover the costs contemplated in paragraph 8.3 above.

9.

The first and second respondents are ordered to take all steps reasonably necessary to prevent the property being used for the purposes in paragraphs 1.1 – 1.5 above and to prevent the

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unlawful erection of structures and / or buildings on the property, which steps must include fencing the property or taking other steps to ensure vagrants and other persons cannot readily access the property.

10.

Subject to paragraph 11 below, all persons using or occupying the property for the purposes set out in paragraphs 1.1 to 1.5 are ordered to vacate the property within 14 calendar days of service of this order.

11.

Service on the fourth respondent shall be by publishing this order in English and Isizulu in a newspaper circulating in the area of the property and by placing a copy of this order on a structure on the property and the 14 days shall run from the date of publication in the newspaper or placing on the structure, whichever is later.

12.

The removal forthwith of any vehicles parked on a public road, which in the opinion of a traffic officer referred to in the Road Traffic Act, is likely to cause danger or obstruction to other traffic on such public road.

13.

The first and second respondents, and any other respondent opposing the relief sought, are ordered to pay the costs of the application, jointly and severally, the one paying the other to be absolved, such costs to include the costs incurred by the applicant in procuring the reports of Mr Bundy and Mr Mendes as set out in the founding affidavit.

14.

Such further and/or alternative relief as this Honourable Court may deem appropriate.'

[5]

On 1 October 2020 an order was granted with the approval of the first and second respondents against the third and fourth respondents, which order: identified twenty four of the unlawful occupiers by name and joined them as the fifth to twenty-eighth respondents to the application; granted the relief in paragraphs 1, 3, 6, 10, 11 and 12 of the notice of motion against the third to twenty eighth respondents; adjourned the relief sought against the first and second respondents sine die; and reserved all issues relating to costs.

[6]

The applicant now seeks an order, essentially as contained in the notice of motion, against the respondents.

[7]

The application is opposed by the respondents on a number of grounds: they deny the applicant's allegation that there are no building plans in respect of the buildings on the property, or that the buildings have fallen into a state of disrepair and are unsafe or

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derelict; they deny that the site is covered in detritus and that noxious liquid waste is discharged or has been discharged in an uncontrolled manner on the property; they deny that the predominant use of the property, namely unregulated vehicle repair, is impermissible given the zoning of the property; and finally, they contend that any order granted will be ineffective as it simply will seek to achieve what the order granted against the third and fourth respondents already provides for, and which, despite attempts at enforcement, have apparently not achieved the cessation of the activities on the property, the respondents having lost control over their property. There is also a complaint that the affidavits were exchanged some time ago and that there's no evidence...