United Technical Equipment Co (Pty) Ltd v Johannesburg City Council

• Jurisdiction: South Africa
• Judge: Preiss J, Harms J and Myburgh AJ
• Judgment Date: 29 April 1987
• Court: Transvaal Provincial Division
• Hearing Date: 29 April 1987
• Citation: 1987 (4) SA 343 (T)

Harms J:

The appellant, the respondent in the Court a quo, was interdicted and restrained from using or causing, or allowing to be I used its property, being stand 1998 in the township of Houghton Estate, Johannesburg, for business purposes, namely as offices for so long as such use is prohibited in terms of the present respondent's Town Planning Scheme 1979. The appellant was also ordered to pay the costs of the application.

The appellant is the owner of the aforesaid described property. It J uses the property contrary to the provisions of the Johannesburg Town

Harms J

Planning Scheme 1979, read with ss 30, 37 and 40 of the Town Planning and Townships Ordinance 25 of 1965 (T), for business purposes. The property is zoned for use as 'residential 1', ie it may be used only for the erection and use of one dwelling unit with its outbuildings. It is common cause that, by using the property as it does, the appellant B is committing an offence. The appellant concedes that respondent was entitled to the interdict pending the final dismissal of an application lodged by the applicant in terms of the Removal of Restrictions Act 84 of 1967. That application was for the simultaneous removal of certain conditions contained in the deed of transfer relating to the property in order to permit the property to be used for office purposes and for C an amendment to the Johannesburg Town Planning Scheme for rezoning the property from residential 1 to residential 2, which would give the owner the right to use the property for office purposes. This application to the Administrator of Transvaal was made after the filing by the present respondent of its application for an interdict. Should the application to the Administrator be successful the use by the respondent of the property for business purposes would be a lawful use. The D appellant relies upon the decision by Margo J in CD of Birnam (Suburban) (Pty) Ltd and Others v Falcon Investments Ltd 1973 (3) SA 838 (W) at 854 for its submissions relating to the discretion of a Court to grant or refuse a permanent interdict. This decision was overruled on appeal but the Appellate Division did not deal with the present issue: E Falcon Investments Ltd v CD of Birnam (Suburban) (Pty) Ltd and Others 1973 (4) SA 384 (A). In the decision of Margo J the impression is created that a Court has a general discretion to refuse an interdict altogether. In refusing to exercise this discretion in favour of the respondent the Court stated that

F 'this is not a case of vexatious or oppressive claim or where the applicants have so conducted themselves as to render it unjust to allow them more then pecuniary relief or where the claim is trivial or small and can adequately be disposed of by a small money payment, or where there is some other circumstance so exceptional as to warrant depriving the applicants from their prima facie right to an interdict. See Prinsloo v Luipaardsvlei Estate and Gold Mining Co (Pty) Ltd 1933 WLD 6, per Tindall J at 24-5; Merriespruit case supra, per Williamson J G at 524F-525G; and Lubbe v Die Administrateur, OVS 1968 (1) SA 111 (O) per De Villiers J at 115B.'

This passage creates the impression that the cases quoted are authority for a proposition that if one of the alternatives mentioned is present the court may refuse to grant an interdict. That is not a correct reflection of what these cases have held. the prinsloo case was preceded by Rivas v The Premier (Transvaal) Diamond Mining Co Ltd 1929 wld 1. In the context of considering whether the applicant had an adequate alternative remedy available, the court quoted with approval the decision in Shelfer v City Of London Electric Lighting Co [1895] 1 ch 289 (ca), more especially the views of smith lj. in Prinsloo's case the court did the same (At 24-5). In Free State Gold Areas Ltd V Merriespruit (Orange Free State) Gold Mining Co Ltd And Another 1961 (2) sa 505 (w) at 524 williamson J (as he then was) went through the same exercise.

Shelfer's case should be seen in its context. Lord Cairn's Act (21 and 22 Vict c 27) conferred upon the Court of Chancery a jurisdiction which J it did not have before, namely to award damages in lieu of an injunction. The

Harms J

Court had to consider what effect this statutory provision had upon the common law and the circumstances under which a Court would tend to award damages in lieu of an injunction. It is in that context that Lindley LJ gave as examples the instances set out in the quotation from the CD of Birnam case supra. It is also in that context that Smith LJ's B 'good working rule', quoted in the Prins...