Makgosi Properties (Pty) Ltd v Ficard NO

• Jurisdiction: South Africa
• Judge: Meyer J
• Judgment Date: 12 July 2016
• Citation: 2017 JDR 0352 (GJ)
• Docket Number: 2015/24249
• Court: Gauteng Local Division, Johannesburg

Meyer, J

[1]

This is an application in which the applicant, Makgosi Properties (Pty) Limited (Makgosi), seeks an interdict restraining the first, second and third respondents, Mr EH Fichard N.O., Ms DA Fichard N.O. and Ms N Kellet N.O. (the trustees), in their official capacities as the trustees of the Fichard Family Trust (the trust), and the fourth respondent, Efficiency Advertising and Marketing (Pty) Limited (EAM), from using or allowing the use of the trust property, being Portion 2 of Erf 819, Bryanston Township, Registration Division IR, Province of Gauteng and situated at 3 Portman Road, Bryanston, Johannesburg, for any purpose (and particularly not for business purposes) other than for dwelling houses as permitted and prescribed by its zoning as residential 1 in terms of the Sandton Town Planning Scheme 1980, for so long as the property is so zoned.

[2]

EAM is in occupation of the trust property, which it uses as offices in conducting a design, advertising and marketing business, with 42 employees working there. Makgosi is the owner of an adjacent property, being Erf 820, Bryanston Township, which is being used for residential purposes. The application is opposed by the trustees and by EAM. The fifth respondent is the City of

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Meyer, J

Johannesburg and the 6th - 23rd respondents are property owners in close proximity to the trust property. They are not opposing the application.

[3]

The trust property is subject to the Sandton Town Planning Scheme, 1980 (the scheme). It is zoned residential 1 in terms of the zoning provisions of the scheme, and accordingly the only purpose for which it and the buildings thereon may be used is for dwelling units, as defined in the scheme. Any other use is consequently prohibited. The use of the trust property as offices for business purposes in contravention of the scheme also constitutes an offence in terms of clause 33 of the scheme and s 58(2) of the Town Planning and Townships Ordinance 15 of 1986 (the Ordinance).

[4]

On 4 June 2014, the trust gave notice in terms of s 5(5) of the Gauteng Removal of Restrictions Act 3 of 1996 (the GRR Act) in the Provincial Gazette (No. 125) of its application to the City of Johannesburg for the removal of certain conditions in the title deed in respect of the trust property and for the amendment of the scheme by the rezoning of the trust property from residential 1 to business 4, which would give the trust as owner the right to use the trust property for office purposes (the rezoning application). Should the rezoning application be successful the use by the trust and by EAM of the trust property for business purposes would be lawful. Makgosi and the 6th to 23rd respondents objected to the rezoning application.

[5]

An 'authorized local authority', such as the City of Johannesburg, is enjoined to hold a hearing in respect of such application and the applicant, objectors and any person who made representations in respect thereof are heard at such hearing before the local authority considers and takes a decision to refuse or to grant the application on such conditions as it may deem fit. Notice of its decision must inter

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Meyer, J

alia be given in the Provincial Gazette (s 6 of the GRR Act). An approved application comes into operation on the date stated in the notice, which date, in the case where objections were lodged or representations made or the application was approved subject to an amendment, must be not less than 28 days from the date of the publication of the notice. Otherwise it comes into operation on the date of the publication of the notice, except where an appeal is lodged (s 9).

[6]

Section 7 of the GRR Act provides for an internal appeal by the applicant and any person who objected to the application and who is aggrieved by any decision of the local authority to the Townships Board, which body is to hear and consider the appeal and prepare a report for submission to the MEC (the member of the Executive Council of the Province designated by the Premier of the Gauteng Government) in which it, inter alia, recommends that the appeal be upheld or dismissed subject to any condition which it considers necessary. The MEC then considers the appeal, and dismisses or upholds it subject to any condition which he or she deems necessary. Notice of the MEC's decision is to be given without delay in inter alia the Provincial Gazette. The date of publication of this notice seems to be the date on which an approved application that unsuccessfully went on appeal comes into operation.

[7]

Makgosi launched the present motion proceedings on 3 July 2015. It was heard by me on 24 February 2016 and judgment was reserved. In the interim, on 10 June 2016, the trustees and EAM filed a supplementary affidavit. Makgosi objected to the filing thereof. I accordingly heard further argument on 24 June 2016, inter alia on whether the filing of the supplementary affidavit should be permitted. I was informed by Makgosi that it did not wish to reply should the filing thereof be permitted. The supplementary affidavit deals with occurrences post the filing of the

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Meyer, J

answering affidavit and the hearing of the matter on 24 February 2016. I consider the further evidence of such a degree of materiality in this case that its filing should be allowed. (See Porterstraat 69 Eiendomme (Pty) Ltd v P A Venter Worcester (Pty) Ltd 2000 (4) SA 598 (CPD) at 617H-I.)

[8]

It is stated therein that the Municipal Planning Tribunal of the City of Johannesburg (the tribunal) notified all the parties to the rezoning application that a hearing in respect thereof was convened for 31 May 2016, and that the hearing would be preceded by a site inspection of the trust property. The 5th to 23rd respondents withdrew their opposition to the rezoning application prior to that notification, and Makgosi remained the only objector. In opposing the rezoning application, Makgosi was represented by an attorney, Mr Roger Burman, who is a director of Makgosi's attorneys of record in these motion proceedings, Bowman Gilfillan Inc.

[9]

Prior to the commencement of the site inspection, Mr Burman informed the tribunal that, although Makgosi was not prepared to formally withdraw its objection, it had no objection to the rezoning application being approved subject to the conditions proposed by the Development Planning Department of the City of Johannesburg. The need for the site inspection thus fell away and the parties were excused from attendance. The tribunal approved the rezoning application subject to the conditions proposed by the Development Planning Department of the City of Johannesburg. The approved rezoning application will accordingly, in terms of s 9 of the GRR Act, come into operation on the date stated in the notice which is to be published by the City of Johannesburg in the Provincial Gazette. The trustees say that they have no control over the date of publication of the notice.

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[10]

[text missing] case on the subject is Setlogelo v Setlogelo 1914 AD 221 and the requisites therein stated have often been restated. They are (a) a clear right on the part of the applicant (b) an injury actually committed or reasonably apprehended and (c) the absence of any other satisfactory remedy available to the applicant.

[11]

Makgosi's locus standi must be tested against the principle stated by Solomon J in Patz v Greene 1907 TS 427, at 433, namely:

'Everyone has the right ... to protect himself by appeal to a Court of law against loss caused to him by the doing of an act by another, which is expressly prohibited by law. Where the act is expressly prohibited in the interests of a particular person, the Court will presume that he is damnified, but where the prohibition is in the public interest, then any member of the public who can prove that he has sustained damage is entitled to his remedy.'

As was pointed out by Margo J in C.D. of Birnam (Suburban) (Pty) Ltd and others v Falcon Investments Ltd 1973 (3) SA 838 (WLD), at 844F-G, the first part of the above quoted statement of the law was amplified in Roodepoort-Maraisburg Town Council v Eastern Properties (Pty) Ltd 1933 AD 87, at 96, and it was held that-

'[i]t is not necessary that the act should be expressly prohibited in the interests of the particular person who claims the interdict. It is enough if the prohibition is in the interests of a class of persons of which he is a member, and if the prohibition is impliedly in the interests of such class.'

(Also see BEF (Pty) Ltd v Cape Town Municipality and others 1983 (2) SA 387 (CPD), at 400D-H.)

[12]

It is common cause that the trust and EAM are contravening the rezoning provisions of...