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					                                       FORM A
                FILING SHEET FOR EASTERN CAPE JUDGMENT

                                                                     ECJ NO: 014/2004

PARTIES: EDWARD FALCONER NO                                          1ST APPELLANT
         HENRY FALCONER NO                                           2ND APPELLANT

          AND

          NELSON MANDELA METROPOLITAN MUNICIPALITY                   RESPONDENT


REFERENCE NUMBERS -
      Registrar:        CA410/2003


DATE HEARD:                           16 February 2004

DATE DELIVERED:                       27 February 2004

JUDGE(S):                             Erasmus, Pillay and Sandi JJ

LEGAL REPRESENTATIVES -
Appearances:
      for the State/Plaintiff(s)/Applicant(s)/Appellant(s): RG Buchanan SC
      for the Accused/Defendant(s)/Respondent(s):           NJ Mullins SC

Instructing attorneys:
      Plaintiff(s)/Applicant(s)/Appellant(s):              Neville Borman & Botha
      Defendant(s)/Respondent(s):                          Soni Inc.



CASE INFORMATION -
    Nature of proceedings :          Full Bench Appeal

      Topic:                         Interdict – Use of property contrary to Town
                                      Planning Regulations

      Keywords:                       Land Use and Planning Ordinance 15 of 1959
                                      (Cape) – Zoning Scheme Regulations – failure to
                                       comply with conditional consent for rezoning –
                                      use of property unlawful and interdicatable –
                                      offence – discretion of court to condone – local
                                      authority obliged by Ordinance s 39(1)(b) to
                                      enforce own regulations
                                          2


IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)


                                                           CASE NO: CA410/03

                                                           DATE DELIVERED:

In the matter between:

EDWARD McKAY FALCONER N.O.                                 First Appellant
(in his capacity as a Trustee of the Pitlowie
Property Trust)

HENRY FALCONER N.O.                                        Second Appellant
(in his capacity as a Trustee of the Pitlowie
Property Trust)

and


NELSON MANDELA METROPOLITAN
MUNICIPALITY                                               Respondent


                                     JUDGMENT



ERASMUS J:


INTRODUCTION


[1]    The two appellants appear in their representative capacities as the


trustees of a trust. I refer to them collectively as ‘the appellant’.




[2]    The appellant comes before Court with leave of the Supreme Court of


Appeal to appeal to the ‘Full Court of the South Eastern Cape Local Division’
                                          3


(which presumably is intended to be this Court); leave having been refused it


by the Judge (Nepgen J) against whose judgment the appeal lies. Paragraph


1 of the order issued in that judgment is as follows:


              ‘The respondents are prohibited from utilising erven 1706 and
              1707 Walmer, Port Elizabeth, for business purposes and in
              particular as a restaurant until such time as the respondents
              have complied with the conditions applicable to –
              1.1     Town Planning Amendment TPA 3461 A1;
              1.2     Council’s Special Consent SC 37/99’



(I refer to the two erven as ‘the property’). Paragraphs 2 and 3 of the order
are not relevant at this stage. Paragraph 4 relates to costs.




THE FACTS AND THE LAW


[3]    The factual and legal background to the proceedings in the court a quo


concern the efforts of the appellant over a number of years – commencing in


January 1997 - to obtain the right to operate a restaurant selling liquor on the


property which is situated in a residential suburb within the municipal area of


Port Elizabeth.     The history is fully chronicled in the affidavits of the officials


of the respondent who dealt with the matter.        It is not necessary however to


deal with the whole of that lengthy and involved process as only two steps


taken in the course thereof are of immediate and real relevance.
                                            4


[4]   On 31 January 1999 the appellant lodged with the respondent an


application to have the property rezoned from ‘Residential 1’ to ‘Business 3’


under the Port Elizabeth Zoning Scheme Regulations (the application was


allocated the number TPA 3467 A1). At the same time appellant applied to


the council of the respondent for special consent to operate a restaurant on


the property (this was allocated the number SC 37/99).




[5]   On 6 September 1999 the Town Planning and Loan Use Committee of


the respondent approved application TPA 3467 A1, subject to certain


conditions (I mention two thereof):


      ‘(v)     a site development plan in accordance with Clause 11 of the
               Port Elizabeth Zoning Scheme indicating the measures that are
               proposed to minimise the impact of the proposed use on the
               adjacent properties shall be submitted for approval by the City
               Engineer prior to the submission of any building plans.’
      and

      ‘(vii)   building plans, in terms of the National Building Regulations,
               showing the change in use and layout of the parking area shall
               be submitted for approval by the City Engineer before the new
               use rights are exercised.’
                                           5


In terms of the regulations, the rezoning as Business 3 permitted the property


to be put to ‘primary use’, viz offices, medical uses, dwelling units, or


residential buildings.




[6]     On 19 September 2000 the council of the respondent confirmed the


recommendation of its executive committee that it approve application SC


37/99 for special consent that the property be put to its ‘secondary use’, viz


as a restaurant for on site consumption of food; subject to certain conditions


(I mention two thereof):


      ‘(i)    all development conditions as contained in TPA 3461 A1 shall
              apply;


      and


      (iii)   building plans, in terms of the National Building Regulations,
              showing the change in use and layout of the parking area shall
              be submitted for approval by the City Engineer before the new
              use rights are exercised.’


[7]     It is clear that these ‘conditions’ imposed on the rezoning and the


special consent in effect constituted preconditions to the operation of a


business in the form of a restaurant on the property; in other words, without
                                        6


compliance with the ‘conditions’ the rezoning and the special consent would


not become effective at all.




[8]    The matter turns on the fulfillment, or rather non-fulfillment, of these


preconditions.




THE UNLAWFULNESS ISSUE


[9]    It is common cause that neither a site development plan nor any


building plans were ever approved by the respondent in accordance with the


official process in place for such approval. This is an elaborate operation


involving a number of officials in different departments of the respondent, as


explained by Mr. Welgemoed, the senior estates officer in the Department of


the Director of Administration.    Apparently the site development plan is a


prerequisite to the approval of the building plans.




[10]   The appellant contends that one Toyer, an employee of the respondent


and at the time a technical controller in the Town Planning Department,
                                       7


advised one Hickman, who was appellant’s architect and agent, that the site


development plan was approved.       Hickman confirms this, Toyer denies it.


Nepgen J found it not proper to decide the dispute of fact arising between the


two of them on the papers without hearing oral evidence. Welgemoed deals


with the issue, he explains why Toyer simply did not have the necessary


authority to approve the site development plan. It would mean that any


intimation by Toyer to Hickman could not and would not have been the official


‘approval by the City Engineer’ contemplated in the condition stipulated in


para (v) of the rezoning approval TPA 3467 A1 (para [5]).




[11]   Whatever the position regarding the site development plan might be,


there is no factual or legal dispute on the papers or in the appeal in regard to


the building plans: they were never approved by the respondent. It follows


that a precondition for the rezoning of the property as Business 3 (TPA 3467


A1), as well as for the special consent for restaurant use (SC 37/99), was


never fulfilled; therefore neither ever took or had any effect. This then is the


crux of the case:     the appellant is unlawfully operating a restaurant on
                                      8


premises zoned for residential use only, and has been doing so for a number


of years. And that really is the end of the matter, except for the new approach


adopted on appeal by Mr. Buchanan who appears for the appellant.




THE COURT’S DISCRETIONARY POWERS


[12]   In seeking to avoid the consequences of the miscarriage of the


rezoning and the special consent, counsel does not rely on the contentions


raised in the Court a quo in this regard. He submits instead that Nepgen J


should have exercised his discretion and declined to issue the interdict sought


by the respondent. He contends that the officials of respondent based their


decision not to approve the plans on their belief that the premises were


already being used illegally in that liquor was being sold there. In this they


were in error, he submits, for on proper interpretation of the Port Elizabeth


town planning scheme, special consent for the secondary use of the property


as a restaurant does not either expressly or implicitly limit the use to an


unlicenced restaurant; if therefore the Liquor Board approves a licence for the


sale of liquor on the premises,    the property may be used as a licenced
                                        9


restaurant. (The Liquor Board did issue such a licence, but left the question


whether liquor could be sold on the particular premises to the local authority).


Counsel contends that because the officials of the respondent should have


approved the site development plan and the building plans submitted by


appellant, the Court a quo should have exercised its judicial discretion in


favour of refusing the application for an interdict brought by the respondent.


Mr. Mullins, who appears for the respondent, challenges Mr. Buchanan’s


interpretation of the scheme. I need not however decide the question and will


for purposes of this judgment accept the correctness of Mr. Buchanan’s


interpretation. However the leap from this point to the point of allowing the


appeal faces a number of obstacles, three of which are insurmountable in my


view.




(a)     The nature of the proceedings


[13]    I am unpursuaded that the principles governing common law interdicts


apply to the present proceedings, in particular the principle that the court in


granting or refusing an interdict exercises discretionary powers.        In the
                                      10


absence of approval of appellant’s building plans, neither the rezoning of the


property to Business 3 nor the special consent that the premises could be


used as a restaurant ever took effect. It follows that from the moment that the


appellant commenced business it was in breach of the Port Elizabeth Zoning


Scheme Regulations which are in force in terms of s 7(1) of the Land Use


Planning Ordinance 1985 (Ordinance 15 of 1985).




[14]   Appellant’s actions therefore constituted and continue to constitute a


contravention of s 39(2)(a)(i) of the Ordinance which in terms of s 46(1)(a) is


rendered a criminal offence punishable by a fine or imprisonment, or both


such fine and such imprisonment. What is more, s 39(1)(b) decrees that


every local authority shall enforce compliance with the provisions incorporated


in a zoning scheme in terms of the Ordinance.           This means that the


respondent was by law obliged to take the action which it did in instituting


these proceedings. In view of the fact that the appellant was in clear breach


of the zoning regulations, the Court a quo had no option but to grant the order


sought by the respondent. By submitting that we should hold that Nepgen J
                                      11


should nonetheless have declined to do so, Mr. Buchanan is in effect


suggesting that this Court permit the patent commission of a criminal offence


by the appellant, and to prohibit the respondent from complying with its


statutory obligations. This course is quite unacceptable to me.




(b)    Procedural considerations


[15]   On the papers, Nepgen J was not called upon, either expressly or by


necessary implication, to exercise his discretion in the manner and for the


reasons now suggested by counsel for the appellant. In the notice of appeal,


the appellant does not raise as a ground of appeal that Nepgen J erroneously


refused or neglected to exercise his discretion in its favour. In the absence of


special circumstances and without an application to amend the notice of


appeal, it will be improper for us to entertain a point on appeal which is not


properly before court.
                                       12

(c)    The grounds for exercising a discretion


[16]   Even if Nepgen J had the discretion suggested by Mr. Buchanan, it is


by no means clear that he would or should have exercised those powers in


favour of the appellant.     The exercise of a discretion involves a value


judgment going beyond the immediate issue of unlawfulness, with less


emphasis on the incidence of the onus. The unlawfulness of the appellant’s


actions is determined on the narrow basis of non-fulfillment of the


preconditions for the operation of the rezoning and the special consent to use


the premises for a restaurant. The underlying but real issue between the


parties is about the sale of liquor on the property.     But for that activity by


appellant, the rezoning and special consent would no doubt have gone


through long ago. This aspect therefore impacts with considerable force on


the question of the Court’s exercise of its discretionary powers.




[17]   The appellant’s initial application in January 1997 for rezoning was


advertised in the local press.     Respondent received a large number of


objections, in particular to the application for special consent to operate a
                                         13


licenced establishment.     The main objection to the application was that a


licenced restaurant would adversely affect the residential nature of the


neighbourhood.     In response, the appellant through its attorneys informed


respondent that there was no question of facilities being used in such a


manner as ‘to negatively impact on the residents of the area’. On 31 January


1999 the appellant brought the fresh applications for rezoning and for special


consent to operate a restaurant. The report motivating the application was


prepared by Hickman on behalf of appellant. He declared that the appellant


wished to operate ‘a high quality and upmarket licensed restaurant’ which would


‘cater for an exclusive and upmarket clientele of the highest character, and offering


the best in quality and ambiance’. The application was again publicised and


once again a large number of objections were received, again directed not as


much at the rezoning but at the application to operate a restaurant in


particular a licenced one. Appellant responded along the lines of the earlier


motivation. It further stated that many of the objections were misconceived in


referring inter alia to the proposed restaurant as a ‘pub and grub’ outlet.
                                        14


[18]   Despite the absence of approval, the appellant proceeded with


renovations and commenced trading as early as December 2000, and has


been operating ever since as a licenced restaurant of some sort. The


restaurant however metamorphosized into something somewhat less elegant


and decorous than that presented in the motivation reports. Mr. Welgemoed


describes the present business as ‘nothing more than a drinking hole, the main


purpose being to sell as much alcohol to as many people as possible for as long as


possible’.   It seems that the establishment is essentially a ‘pub and grub’.


Welgemoed states that the respondent continues to receive complaints in


regard to the restaurant and the misbehaviour of its patrons. Appellant does


not dispute that the present establishment is not what was ’envisaged’ in the


application, but claims that ‘the nature of the restaurant has changed over a period


of years having regard to the needs of the market and the requirements of the


appellant’s customers’. What is clear is that the very situation which respondent


was from the outset anxious to avoid in the interest of sound town planning,


has in fact developed on the property. In view of its conduct in the matter, it


certainly cannot be said that the appellant has acted in good faith throughout.
                                          15


[19]   Most importantly to my mind, the appellant carries on business in


disregard of the zoning regulations. Before it requests the Court to exercise a


discretion in its favour, it should first purge itself of its unlawful conduct.




[20]   In all the circumstances I do not think that Nepgen J would have


exercised a discretion in favour of appellant had he been called upon to do so


(which he was not).




FINDING


[21]   I find the Court a quo was clearly correct in holding that the business


conducted by appellant on the premises was unlawful. This finding makes it


unnecessary to consider the other grounds on which the Court a quo issued


its orders. I further find that there is no merit in the argument raised on appeal


that the Court a quo should have declined to issue those orders in the


exercise of its judicial discretion.
                                       16


[22]   In the result, the appeal is dismissed with costs.




__________________________
A.R. ERASMUS
JUDGE OF THE HIGH COURT
DATE:



Pillay J:


I agree.




_________________________
R. PILLAY
JUDGE OF THE HIGH COURT



Sandi J:


I agree.




_________________________
B. SANDI
JUDGE OF THE HIGH COURT

				
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