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					                                       FORM A

                                                                     ECJ NO: 014/2004

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



      Registrar:        CA410/2003

DATE HEARD:                           16 February 2004

DATE DELIVERED:                       27 February 2004

JUDGE(S):                             Erasmus, Pillay and Sandi JJ

      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.

    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


                                                           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)


MUNICIPALITY                                               Respondent




[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’

(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.


[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]   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.’

      ‘(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.’

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


      (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

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



[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,

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

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.


[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

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


(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

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

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.

(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

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.

[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.

[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).


[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.

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


Pillay J:

I agree.


Sandi J:

I agree.


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