The Firs Investments (Pty) Ltd v Johannesburg City Council

• Jurisdiction: South Africa
• Judge: Trollip J
• Judgment Date: 14 June 1967
• Court: Witwatersrand Local Division

A Trollip, J.:

This is an application for certain declaratory orders and consequential interdicts.

The first dispute between the parties arises in the following way.

The applicant is the registered owner of stands 5 and 30 R.E. Rosebank, B having become such on the 24th January, 1964. The stands adjoin one another. They are located between Oxford Road and Cradock Avenue, immediately to the north of the existing shopping and business centre in Rosebank. An old building is erected on them, which is used as The Firs Residential Hotel. The stands were first zoned under the respondent's C original town planning scheme for 'general residential' and 'special residential' purposes respectively. In 1960 the respondent refused the then owner's application to have stand 30 R.E. re-zoned to 'general residential', as well as his later application to have both re-zoned to 'general business'. Both those decisions were upheld on appeal, the first by the Administrator, the second by the Townships Board.

D On 26th May, 1964, the applicant, now having acquired them, applied to the respondent to have both re-zoned for 'general business'. This was refused. On 30th October, 1964, the applicant appealed to the Townships Board under sec. 46 bis of the Town Planning Ordinance, 11 of 1931. That appeal was upheld and the respondent was directed to prepare an amended E scheme for such re-zoning of the stands. That was done, the amended scheme being submitted to the Administrator on 29th June, 1965. Thereafter the Townships Board on 24th September, 1965, heard objections thereto, including those of the respondent. Despite those objections the Administrator ultimately approved the amended scheme. Proc. 221 in the Provincial Gazette of 3rd August, 1966, formally proclaimed the amended F scheme re-zoning the stands for 'general business' subject to certain conditions.

The town planning department of the respondent considered and reported on this re-zoning to the Council meeting on 22nd November, 1966, inter alia, as follows:

'Despite the large number of objections from residents in the area and the strong protest lodged by the Council, a notification dated 5th G August, 1966, was received from the Director of Local Government advising that the Administrator had approved of the rezoning of these stands to 'general business'.

Although the rezoning of the two stands from 'general residential' to 'general business' took place only recently in the circumstances described above, 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.'

H It recommended that the respondent should take the necessary steps to amend the re-zoning from 'general business' to 'general residential'. The respondent at its meeting on that date resolved to adopt that recommendation and thereafter took and is taking steps to implement it.

On 8th December, 1966, the applicant, through its attorneys, objected by letter addressed to the respondent against its proposed action, contending

Trollip J

that it was unlawful. The respondent joined issue with the applicant; hence this application for a declaratory order and interdict against the respondent.

The Town Planning Ordinance, 11 of 1931, as amended, was repealed by A Ord. 25 of 1965, which came into operation on 1st January, 1966. At that stage the applicant's application for re-zoning was still pending and under consideration by the Administrator. He eventually approved and proclaimed that re-zoning in August, 1966, after the new Ordinance had come into operation. According to sec. 93 (1) of the latter, as amended, any pending application had to be completed as if the new Ordinance had B not been passed, but, having been so completed, according to sec. 97 (2) thereof, it then 'shall be deemed to have been done under the corresponding provision of this Ordinance', i.e. the new Ordinance. Obviously, too, the steps now taken and proposed to be taken by the respondent to have the re-zoning amended must be governed by the new C Ordinance. Consequently the whole dispute falls to be dealt with under the 1965 Ordinance.

The relevant details of that Ordinance will be examined presently, but their broad effect can be summarised thus: as in the previous Ordinance, too, elaborate provision is made for the preparation, approval and proclamation of a town planning scheme for all or any land situated D within the municipality. The right and duty of initiating such a scheme generally rests with the local authority, but the right of final approval and proclamation vests in the Administrator. The first proclaimed scheme is known as the original scheme (sec. 18 (2)). That scheme can thereafter be amended, the procedure being substantially the E same as for the original scheme. It, too, only becomes effective on approval and proclamation by the Administrator. It is known as the amendment scheme (sec. 18 (3)). The original plus amendment schemes are known as the town planning scheme in operation (sec. 18 (4)). I think that it is clear, and indeed it was common cause, that such a scheme can thereafter be again amended in the same way. That is the effect of sec. F 18 and the whole Ordinance. That is precisely what the respondent is now seeking to do. The applicant, however, contends that lawfully it cannot do so, because -

(a)

its sole purpose is to obtain a reconsideration by the Administrator of the same matter and a reversal of his previous decision thereon, which is a misuse of its power to amend; and/or

(b)

G the Ordinance implies that some such degree of finality attaches to the Administrator's decision that is sufficient in the present circumstances to preclude the respondent from re-opening the matter.

In regard to (a), Mr. Kentridge, for the applicant, relied on the principle that the Court will restrain a local authority if, while H ostensibly confining itself within the scope of its powers, it nevertheless acts for ulterior reasons or motives which ought not to influence its judgment (see African Realty Trust v Johannesburg Municipality, 1906 T.S. 908 at p. 913). The same principle has been expressed in other cases, albeit in different language. Thus in van Eck, N.O. and van Rensburg, N.O v Etna Stores, 1947 (2) SA 984 (AD) at p. 998, per DAVIS, A.J.A.:

Trollip J

'If the person exercising the power avowedly uses it for some purpose other than that for which alone it has been given, he acts simply contra legem: where, however, he professes to use it for its legitimate purpose, while in fact using it for another, he acts in fraudem legis.'

A Per VAN DEN HEEVER, J.A., at p. 522B in Broadway Mansions (Pty.) Ltd v Pretoria City Council, 1955 (1) SA 517 (AD):

'The question is simply, did the respondent have the power purported to be exercised? Where a power is granted for a specific purpose it cannot be used for a purpose other than that for which it was intended . . . In relation to such other purpose the power does not exist.'

B And, according to FAGAN, C.J., in Administrator, Cape v Associated Buildings Ltd., 1957 (2) SA 317 (AD) at p. 325, an ulterior reason or motive for the purpose of applying the principle would be one which played a substantial part in influencing the local authority's decision, but which the Ordinance did not, expressly or impliedly, entitle it to take into account.

C The respondent's power to initiate an amendment to the amended scheme is contained in sec. 18 (1). It reads:

'A local authority may on its own initiative or shall, if so required by the Administrator, prepare and submit to the Director, within such time as the Administrator may stipulate and in accordance with the provisions of this chapter, a town planning scheme in respect of all or any land situated within the municipality and, with the consent of or if required by the Administrator, specified land outside such municipality.'

D The purposes of a town planning scheme are set out in sec. 17. The relevant provisions are as follows:

'(1)

For the purposes of this Chapter, a town planning scheme shall have for its general purpose a co-ordinated and harmonious development of the area to which it relates in such a way as will most effectively tend to promote health, safety, good order, amenity, convenience and general welfare as well as efficiency and economy E in the process of such development and such a scheme may include any replanning or redevelopment of such area.

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