Ronnies Motors (Pty) Ltd and Others v Van der Merwe and Another

• Jurisdiction: South Africa
• Judge: Jennett AJP and O'Hagan J
• Judgment Date: 25 August 1960
• Citation: 1960 (4) SA 206 (E)
• Hearing Date: 07 April 1960
• Court: Eastern Cape Division

D Jennett, A.J.P.:

The first applicant carries on a garage business upon a property owned by second applicant in the Clifton Park Township, Extension No. 1, East London. Third and fourth applicants are registered owners of lots 27 and 30 in the said Township. The conducting of a garage business upon the said property of second applicant is authorised by the title deeds and conforms to the provisions of a provisional town planning scheme.

E First respondent owns lots 24, 25 and 26. In respect of each of those lots the title deeds contain provisions which limit the use of the properties to the purpose of erection of buildings designed as shops or as shops with residential accommodation above the ground floor. In terms of the town planning scheme each of the lots in question may be used only for the erection of a 'shop' which is defined as excluding 'a petroleum filling station, public or parking garage'.

The Shell Company of South Africa agreed to purchase those properties from first respondent provided they could be used for garage purposes and first respondent applied to the East London Municipality and the G second respondent for the amendment of the conditions in the title deeds and of the provisions of the town planning scheme as they pertain to the said lots.

According to the papers the Municipal Council after a careful investigation by its Works Committee made a recommendation against the application. The Townships Board had recommended that the application be H refused. Since 1952 three similar applications by other persons in respect of other properties in the vicinity had been refused.

Despite these recommendations and the weighty grounds in support of them the application was granted by second respondent, who directed the alteration of the conditions of title of the first respondent's properties and of the provisions of the town planning scheme.

When it was pointed out that there had been no notice in terms of

Jennett AJP

sec. 35 (bis) (5) of Ord. 33 of 1934 as amended of his intention in respect of the alteration of the town planning scheme, second respondent caused a notice to be published. In that notice objections were invited. Applicants duly lodged their objection. The matter was again referred to A the Municipality whose Works Committee again strongly opposed the application. Despite this the Municipality passed a resolution approving the second respondent's alteration of the town planning scheme.

One might have expected that there would have been a spirited defence against the suggested alteration of the town planning scheme in view of the considerations that weighed against the application.

B Because so many substantial reasons existed for refusing the application originally and apparently none for granting it the Municipality had sought the reasons why it had been granted.

It appears that the ground on which the second respondent had decided to grant the application was an allegation by first respondent that he had C purchased the properties 'on the understanding that he could have a garage thereon'. Apparently it had been reported that first respondent had purchased the erven in 1948 on condition that they could be used for garage purposes but...