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Crimson Sunset Property Bantry Bay (Pty) Ltd v City of Cape TOwn (12850/10)  ZAWCHC 238 (26 May 2011)
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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO.: 12850/10
In the matter between
CRIMSON SUNSET PROPERTIES BANTRY BAY (PTY) LTD …..........................Applicant
THE CITY OF CAPE TOWN …........................................................................Respondent
JUDGMENT DELIVERED ON 26 MAY 2011
 On the 25lb October 2010 the City of Cape Town (hereinafter referred to as the Respondent or City) launched a conditional counter-application against Crimson Sunset Properties Bantry Bay (Pty) Ltd (the Applicant) for a declaratory relief and an interdict preventing the Applicant from occupying the building. The Applicant opposed the counter-application on the basis that the failure to join other directors is fatal to the success of the declaratory relief and final interdict sought by the Respondent.
 The factual background in this matter is largely common cause. The Applicant is the owner of erf 822 Bantry Bay. The property was purchased for purposes of accommodating the Robertson family in June 2006. The building plans in respect of construction of the house were approved by the Respondent on 31 July 2007 in terms of section 7 of National Building Regulations and Building Standards Act 103 of 1977 (hereinafter called the Building Act or NBR Act). The property is zoned General Residential Use Zone, Sub-Zone R9. for erection of a double dwelling house consisting of 3 storeys, basements and mezzanines. In September 2008 the City approved amendments to the plans. Before these plans were approved, the Applicant's architect was informed of the requirements of the applicable Zoning Scheme Regulations for the City of Cape Town, promulgated under the Land Use Planning Ordinance 15 of 1985 (hereinafter referred to as LUPO). The architect amended the plans in order to comply with the requirements applicable to a double dwelling house. Consequently, the Applicant was not obliged to seek approval from the City for any departures in terms of LUPO. In March 2009 the Applicant submitted an application to the City for approval of the conversion of the building from a double dwelling house to a block of flats, containing five units (for convenience sake the application is referred to as application No 2) The Applicant required departures to be granted by the City in respect of the setback and permissible coverage requirements. Where a departure is sought in accordance with section 15(2)(a) of LUPO and the City's Notification Policy of Land Use Development Application dated 6 August 2009, the City advertises the application and seeks the comment of interested and affected persons that are in its opinion adversely affected thereby, including neighbours, before making a decision on such applications for a departure.
 During the site inspection at the property on 31 March 2009, it was observed that the Applicant was proceeding with the construction of a five unit block of flats, not a double dwelling house in terms of the approved plans This was done without the necessary notice required to be given to the interested and affected persons, or the necessary approval having been granted by the City. These deviations from the approved plans were specified in a "cease deviation" notice issued on the 14,h April 2009 to the Applicant (in terms of regulation A25(7) and A25(10) of National Building Regulations (hereinafter referred to as NBR) The Applicant did not heed the deviation notice. Again on the 30,h April 2009 the City issued a notice in terms of regulation A25(b) to cease all unauthorised building work on the premises with immediate effect, as the then building erected, deviated materially from the approved plans. On the 3'° June 2009, the Applicant submitted other plans (i.e. amendment plans) to the City in respect of various "departures" it sought in respect of the approved plans for a double dwelling house (hereinafter referred to as application No. 3). Applications 2 and 3 mentioned above were subsequently withdrawn by the Applicant after the City's advice that they were contradictory. The Applicant undertook to perform certain remedial/demolition work on the premises in order to revert to a double dwelling approved plan. This related to internal deviations that were listed by the City in its cease deviation notice. On the 10"1 September 2009 the Applicant submitted a fourth (4) application to regularise the remaining deviations in respect of existing dwelling approval.
 On the 15th September 2009. a site inspection revealed that the Applicant continued to build not in accordance with the approved plan, but also concealed its building activities. At a November 2009 meeting between the City and the Applicant's representatives who wanted to bring new plans, indicating what would be demolished in order to comply with the approved already granted plan. On discovery that a departure application was required in respect of the setbacks and that the City was unable to issue an occupancy certificate prior completion of the departure process and approval of the plan in accordance with the NBR Act. They (Applicant's representatives) would not demolish portions of the mezzanine levels if that was not enough for the City to grant an occupancy certificate before December 2009. On the 20th November 2009. at a site inspection the non-approved building construction continued. The construction was completed and the house was ready for occupation in December 2009. The Applicant (through its legal representatives), on the 9in December 2009. made a written undertaking that it would not occupy the building without giving the City three weeks' notice. On the 28,h January 2010, the Applicant submitted application No 5 to the City. The application sought for the City's consent to various departures from the zoning scheme regulations which apply to a double dwelling house. The purpose was to regularise the building works already erected. The Robertson family moved in April 2010 without notifying the City, contrary to its undertaking to the City (i.e. three weeks' notice). On the 20,n August 2010. at a council meeting, a unanimous decision was taken to refuse the Applicant's application for departures. Mr J P Smith recused himself when an item concerning erf 822, Bantry Bay was discussed and deliberated on. He was not part of the decision taken. It is unfortunate that there were negative political media reports about Mr J P Smith and Mr Robertson Mr Robertson has appealed against the Council's decision.
 At the commencement of the counter-application, the Respondent indicated that it was abandoning prayer 2 (joinder of directors) in its notice of motion in the counter-application. The court is required to determine the following, whether:
(i) in the absence of a certificate of occupancy, issued in terms of section 14(1) of the National Building Regulations and Building Standards Act 103 of 1977 (the NBR Act), or written permission given by the City in terms of section 14(1A), the occupation of erf 822. Bantry Bay is lawful;
(ii) to grant or not a final interdict to the Respondent against the Applicant.
 A. The following sections in the National Building Regulations and Building Standards Act 103 of 1977 are relevant in this matter.
4. Approval by local authorities of applications in respect of erection of buildings.
Any person erecting any building in contravention of the provisions of subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding R100.00 for each day on which he was engaged in so erecting such building.
Certificates of occupancy in respect of buildings.
A local authority shall within 14 days after the owner of a building of which the erection has been completed, or any person having an interest therein, has requested it in writing to issue a certificate of occupancy in respect of such building -
(a) issue such certificate of occupancy if it is of the opinion that such building has been erected in accordance with the provisions of this Act and the conditions on which approval was granted in terms of section 7, and if certificates issued in terms of the provisions of subsection (2) and where applicable, subsection (2A), in respect of such building have been submitted to it;
[Para (a) substituted by s7(a) of Act 62 of 1989]
14(1A) The local authority may at the request of the owner of the
building or any other person having an interest therein, grant permission in writing to use the building before the issue of the certificate of occupancy referred to in subsection (1), for such period and on such conditions as may be specified in such permission, which period and conditions may be extended or altered, as the case may be, by such local authority;
[Subsection (1A) inserted by s7(b) of Act 62 of 1989].
14(4)(a) The owner of any building or, any person having an interest therein, erected or being erected with the approval of a local authority, who occupies or uses such building or permits the occupation or use of such building -
a certificate of occupancy has been issued in terms
of subsection (1)(a) in respect of such building;
in so far as it is essential for the erection of such
any period not being the period in respect of which such local
authority has granted permission in writing for the occupation
of such building or in contravention of any condition on which such
permission has been granted;
(iv) otherwise than in such circumstances and on such conditions as may be prescribed by national building regulation, shall be guilty of an offence
[Para (b) deleted by s7(d) of Act 62 of 1989].
24 General penalty clause.
Any person convicted of an offence under this Act in respect of which a fine or imprisonment is not expressly provided for, shall be liable to a fine not exceeding R4 000.00 or to imprisonment for a period not exceeding 12 months.
[S24 substituted by s11 of Act 62 of 1989].
B. The following sections of the National Building Regulations are relevant:
"Any person who, having obtained approval in terms of the Act for the erection of any building, deviates to any material degree from any plan, drawing or particulars approved by the local authority shall, except where such deviation has been approved, be guilty of an offence."
"Whether or not a notice contemplates in sub-regulation (6) has been served, the local authority may serve a notice on the owner of any building contemplated in sub-regulation (4) or (5). ordering such owner to rectify or demolish the building in question by a date specified in such notice."; and
"Where any building, excluding a temporary building, is being or has been erected without the prior approval contemplated in section 4(1) of the Act, the local authority shall serve a notice on the owner of such building, calling upon him to obtain the approval, in writing, as required by the Act, by a date specified in such notice."
C. The following important sections of the Land Use Planning Ordinance,
1985 are applicable in this case:
Section 15(2)(a) provides:
"The said town clerk or secretary shall -
cause the said application to be advertised if in his opinion any person may be adversely affected thereby;"
Section 36 provides:
"(1) Any application under Chapter II or III shall be refused solely on the basis of a lack of desirability of the contemplated utilisation of land concerned including the guideline proposals include in a relevant structure plan in so far as it relates to desirability, or on the basis of its effect on existing rights concerned (except any alleged right to protection against trade competition).
(2) Where an application under chapter II or III is not refused by virtue of the matters referred to in subsection (1) of this section, regard shall be had, in considering relevant particulars, to only the safety and welfare of the members of the community concerned, the preservation of
the natural and developed environment concerned or the effect of the application on existing rights concerned (with the exception of any alleged right to protection against trade competition)."
Section 39 provides:
"1. (a) the provisions of this Ordinance or, in so far as they may
apply in terms of this Ordinance, the provisions of the Townships
Ordinance, 1934 (Ordinance 33 of 1934);
(b) the provisions incorporated in a zoning scheme in terms of this Ordinance, or
(c) conditions imposed in terms of this Ordinance or in terms of the Townships Ordinance. 1934,
and shall not do anything, the effect of which is in conflict with the intention of this subsection.
2. No person shall -
(a) contravene or fail to comply with -
(i) the provisions incorporated in a zoning scheme in terms of this Ordinance,
(ii) conditions imposed in terms of this Ordinance or in terms of the Townships Ordinance. 1934,
except in accordance with the intention of a plan for a building as approved and to the extent that such plan has been implemented, or
(b) utilise any land for a purpose or in a manner other than intended by a plan for a building as approved and to the extent that such plan has been implemented.
a local authority in the opinion of the Administrator fails to
perform or to exercise satisfactory its duties or powers in
subsection (1). the Administrator may, after notice to such local
authority withdraw any approval or authorization granted
local authority, perform the said duties, exercise the said
and recover from such local authority any amount spent by him in this connection or instruct the local authority as to the steps to be taken by it in order to ensure compliance with subsection (1). and such instruction shall in law override any decision of the council of the said local authority."
Section 44 provides:
"1. (a) An applicant in respect of an application to a council in terms of this Ordinance, and a person who has objected to the granting of such application in terms of this Ordinance, may appeal to the Administrator, in such manner and within such period as may be prescribed by regulation, against the refusal or granting or conditional granting of such application.
(b) A person aggrieved by a decision of a council in terms of this section 14(1), (2), (3), (4)(d) or (5) or section 16(2)(b) or 40(4)(c) may appeal to the Administrator in such manner and within such period as may be prescribed by regulation against such decision.
(c) A person aggrieved by a decision of a council in the application of section 18 may similarly appeal to the Administrator against such decision.
(d) For the purposes of sections 15(3), 17(3) and 24(3) provision may be made by regulation therein referred to for a right of appeal to the Administrator in the manner prescribed by such regulation.
2. The Administrator may, after consultation with the Council concerned, in his discretion dismiss an appeal contemplated in subsection (1)(a), (b), (c) or (d) or uphold it wholly or in part or make a decision in relation thereto which the Council concerned could have made.
3. For the purposes of this Ordinance -
(a) an application referred to in subsection (1)(a) shall be deemed to have been granted or conditionally granted or refused by the Council concerned in accordance with action taken by the Administrator under the provisions of subsection (2);
(b) a decision referred to in subsection (1)(b) or (c) shall be deemed to be a decision of the Council concerned in accordance with action taken by the Administrator under the provisions of subsection (2); and
(c) a decision made by the Administrator under the provisions of subsection (2) shall be deemed to have been made by the Council concerned."
Section 46 provides:
"1. Any person who -
(a) contravenes or fails to comply with a provision of section 23(1), 33(12) or 39(2) or
(b) threatens, resists, hinders or obstructs, or uses foul, insulting or abusive language towards a person in the exercise of a power under section 41 or refuses or fails to answer to the best of his ability a question put to him in terms of the said section,
shall be guilty of an offence and on conviction liable to a fine not exceeding R10 000.00 or to imprisonment for a period not exceeding five years or to both such fine and such impnsonment
2. A person convicted of an offence under this Ordinance who after such conviction continues with the conduct in respect of which he was so convicted, shall be guilty of a continuing offence and on conviction liable to a fine not exceeding R100.00 in respect of each day on which he so continues or continued therewith
Reference to section 6 of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) was made. An unlawful occupier is defined as "a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997. and excluding a person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act, 1996 (Act 31 of 1996)." Section 6 - Eviction at instance of organ of state
(1) An organ of state may institute proceedings for the eviction of an unlawful occupier from land which falls within its area of jurisdiction, except where the unlawful occupier is a mortgagor and the land in question is sold in a sale of execution pursuant to a mortgage, and the court may grant such an order if it is just and equitable to do so, after considering all the relevant circumstances, and if -
(a) the consent of that organ or state is required for the erection of a building or structure on that land or for the occupation of the land, and the unlawful occupier is occupying a building or structure on that land without such consent having been obtained; or
(b) it is in the public interest to grant such an order.
2. For the purposes of this section, 'public interest' includes the interest of the health and safety of those occupying the land and the public in general.
3. In deciding whether it is just and equitable to grant an order for eviction, the court must have regard to -
(a) the circumstances under which the unlawful occupier occupied the land and erected the building or structure;
(b )the period the unlawful occupier and his or her family have resided on the (and in question; and
(c) the availability to the unlawful occupier of suitable alternative accommodation or land.
4. An organ of state contemplated in subsection (1) may, before instituting such proceedings, give not less than 14 days' written notice to the owner or person in charge of the land to institute proceedings for the eviction of the unlawful occupier.
5. If an organ of state gives the owner or person in charge of land notice in terms of subsection (4) to institute proceedings for eviction, and the owner or person in charge fails to do so within the period stipulated in the notice, the court may, at the request of the organ of state, order the owner or person in charge of the land to pay the costs of the proceedings contemplated in subsection (1).
6. The procedures set out in section 4 apply, with the necessary changes, to any proceedings in terms of subsection (1).
 Mr Budlender SC, for the Respondent, submitted that after Applicant's plans had been approved, the Applicant submitted to the City a further application for approval of the "conversion" of the building from a double dwelling house to a block of flats.
 Mr Potgieter SC. on behalf of the Applicant, conceded that indeed an
application was made in this regard. He pointed out that pursuant to further professional advice, this idea was abandoned and the application was withdrawn.
 Mr Budlender submitted that during a site inspection at the building on 31 March 2009, it was clear that the Applicant proceeded with the construction of five unit block of flats and not a double dwelling house in terms of the approved plans. He pointed out that this was done without giving the interested and affected persons the necessary notice or the necessary approval been granted by the City.
 Mr Potgieter countered this argument by submitting that the Applicant never
abandoned the intention to construct a double dwelling house on the property and the construction work proceeded on the basis of the approved building plans. He argued that any implication in the founding affidavit that the Applicant was in fact erecting a
block of flats or was concealing the fact that it was doing so was without any
 Mr Budlender submitted that the unlawful deviations construction on the property continued despite a notice of "cease deviation" issued by the City on the 4th April 2009. He further submitted that on 30th April 2009 the City was compelled to issue another notice, which instructed the Applicant to cease immediately all unauthorised building work on the premises. The Applicant submitted a 3fd application to the City regarding its rider plan, which was later withdrawn by the Applicant. The Applicant undertook to correct the wrong regarding the internal deviations in the building. This was followed by a 4lh application for regularising the remaining deviation in the building. Mr Budlender further pointed out that a site inspection on the 15th September 2009 revealed that the Applicant had not stopped to build not in accordance with the approved plans. The November 2009 meeting, resulted in the Applicant's representatives refusing to demolish the deviations plan. A 5,h application was launched to the City on 28th January 2010 (for regularising the work already done in the building). The Applicant is now waiting for the outcome of its appeal, (see para 4 above)
 Mr Potgieter strongly argued that the departures in the building were minor and
could be easily rectified. However, he did not give reasons why the Applicant failed to rectify them. He pointed out that even the Respondent's planning department had recommended its approval.
 Mr Budlender countered Mr Potgieter's submissions by arguing that if the departures were minor as the Applicant would like this court to believe, there could have been no need for this application (5,h application). The Applicant could have easily rectified the errors and build in accordance with the approved plans.
 Mr Budlender submitted further that the departures taken together, that is cumulatively are substantial. In support of his argument, he relied on an affidavit by one of City officials (Mr Gregory Philip September) which stated the following:
"Ad paragraph 38 thereof:
37.2. Furthermore, in order to render the building complaint with the approved plans, substantial demotion work would have to be effected. I deny that the reduction of the mezzanine level from 33% to 25% will not interfere with the occupation of the property. I attended a site inspection with Bennie Schoeman and the Applicant's architect, Heidi Zollner, at which we discussed the possibility of demolishing the unlawful portions of the building. They explained that this would be very difficult, because of the way in which the offending aspects relate to the structure.
37.3. To achieve compliance with the approved plans, the walls separating rooms and floors would have to be demolished and then re-erected, the building edges would have to be opened, and holes would have to be cut through concrete slabs reinforced with steel rods. This is substantial work, and would be a very dusty and messy business. I rather doubt that the occupants of the building would choose to live in it during such substantial construction."
 I am of the view that Mr Budlender is correct in his submission that the deviations/departures were of substantial nature. I disagree with Mr Potgieter that the departures were trivial. The failure by the Applicant to furnish reasons for not complying, is in my view, a simple indication that the deviations were not minor.
 Mr Budlender submitted that unless and until a certificate of occupancy or a temporary permission is issued in accordance with section 14 of NBR Act, it is unlawful for the Applicant to occupy or use the building. He pointed out that the PIE Act (Prevention of illegal Eviction from and Unlawful Occupation of Land Act 19 of 1988, hereinafter referred to as PIE Act) is not applicable in this matter as the Applicant is not an unlawful occupier. Consequently, section 6 of PIE Act is not applicable. He submitted further that sections 14(4)(a) and 24 of the NBR Act provide for criminal remedy, which is not an effective alternate remedy. The Applicant's conduct constitutes a criminal conduct, which the court has no discretion but to enforce the law. Should the court decide to exercise its discretion, he submitted that it should take into consideration the lack of good faith shown by the Applicant's directors, in occupying the building without the necessary occupancy certificate and the breach of the Applicant's undertaking to the City.
 In reply, Mr Potgieter submitted that this matter revolves entirely around the eviction of the family out of the land. He pointed out that section 6 of the PIE Act must be complied with. He argued further that there is no indication before this court that the Respondent attempted to use the criminal remedy provided by the NBR Act, alternatively that the Respondent found the criminal remedy not effective. Mr Potgieter strongly argued that to evict the Robertson family from the house is high-handed, oppressive and disproportionate.
 Mr Budlender submitted that the Applicant continued constructing the building illegally, not in accordance with the approved plan despite the City's several objections and instructions to stop the same. He requested the court to grant the final interdict which the City is seeking.
 Mr Potgieter submitted that even if there were technical breach, the court should exercise its wide discretion to refuse the granting of a final interdict. He pointed out that it would not be fair, just and equitable for a final interdict to be granted in these circumstances. He submitted that even if a final interdict is granted, the circumstances of this case warrant the suspension of any final interdict pending the final determination of the departure application to be heard on 8 April 2011.
 Mr Budlender submitted that the suspension of final interdict would in effect amount to condonation of criminal conduct by the Applicant. The Applicant has clearly indicated that it has absolutely no respect for the law [of this country]. In such circumstances, Mr Budlender argued that the court has no discretion to suspend the operation of a final interdict.
[21 ] In Bitou Local Municipality v Timber Two Processors 2009(5) SA 618 (C) at 625G-626A, the court said the following in para 31 and 32;
"It appears to me that a court does have the discretionary jurisdiction, in exceptional circumstances where it would be just and equitable, to suspend the operation of its orders. It is not uncommon that orders are suspended by our courts. In Huiseman and Others v Port Elizabeth Municipality 1998(1) SA 477 (E)  2 ALL SA 458. the court ordered a stay of 20 days to enable the appellants to put their affairs in order. See also Dunbar v Rossmaur Mansions (Pty) Ltd 1946 WLD 235; and Johannesburg Consolidated Investments Co v L K Investments and Others 1947(2) SA 465 (W) [para 31].
However, in the event of a court finding that a respondent is guilty of criminal conduct, I am of the view that no discretion exists (except possibly where the contravention may be regarded as de minimis) to suspend the operation of a final interdict prohibiting such conduct. In this regard, I am in respectful agreement with the decisions in United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987(4) SA 343 (T) at 347G; and Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC 2004(2) SA 81 (SE) at 11 OF (para 94) As held by Harms in the United Technical Equipment case (above), the suspension of an interdict in these circumstances would be tantamount to a court abrogating its duty as an enforcer of the law.' [para 32]
I associate myself with the sentiments expressed by the court above.
 The continued construction of the building not in accordance with the approved plan constituted criminal offences under the following;
(a) Section 4(4) of the NBR Act makes it an offence to erect a building in contravention of s4(1);
(b) Section 14(4)(a)(i) and (iv) of the National Building and Building Standards Act 103 of 1977. that is. occupying a building without occupational certificate issued in terms of subsection 14(1)(a) in respect of such building;
(c) Section 24 of NBR Act deals with fine after conviction, that is, a fine not exceeding R4 000.00 or to imprisonment for a period not exceeding 12 months;
(d) The material deviation from an approved building plan, not to comply with the Respondent's notices or instructions to cease construction done not in accordance with approved plan are offences under A25(5). A25(6) and A25(11) of the National Building Regulations, promulgated under the National Building Act;
(e) Section 39 read with section 46 of LUPO makes it a criminal offence to use land in a manner not allowed or permitted by relevant zoning scheme.
These transgressions of the law cannot be regarded as trivial.
 I am of the view that the Applicant failed to give justifiable reasons for not complying with the approved plan in constructing the building. The explanation for occupying the building without giving the Respondent three (3) weeks' notice in accordance with the Applicant's undertaking is untenable. The circumstances of this case are such that I do not have any discretion to suspend the operation of the final interdict for the following reasons:
the court would be condoning the Applicant criminal conduct and abrogating the court's duty as an enforcer of the law;
that would be contrary to public policy, that is, undermining confidence of ratepayers and citizens in the ability of the Respondent and the court in fulfilling their constitutional and statutory obligations;
it is the duty of the Respondent and the court to safeguard the constitutional rights and interests of ratepayers and citizens in a lawful, reasonable and fair manner; and
all the citizens and the ratepayers of this country are expected to respect and obey the by-laws without exception, no one is above the law irrespective of the individual status.
 In the circumstances, I find that the Respondent has established a clear right, where the Applicant's Mr Robertson and his family moved into the building without the necessary permission or certificate. The continuation of unlawful conduct by the Applicant in contravention of the NBR Act and LUPO and scheme regulations, meet the requirements of injury reasonably apprehended. There is no appropriate or adequate alternative remedy available to the Respondent, in preventing the Applicant from continuing with the unlawful occupation of the property.
 In the result, the following order is made:
1. In the absence of a certificate of occupancy issued by the City in terms of section 14(1) of the National Building Regulations and Building Standards Act 103 of 1977 or written permission given by the City in terms of section 14(1 A) thereof, the occupation of Erf 822, Bantry Bay, is unlawful.
2. The Applicant is prohibited from using or occupying the building erected on Erf 822, Bantry Bay by permitting any person to occupy it. unless and until a certificate of occupancy is issued by the City in terms of section 14(1) of the National Building Regulations and Building Standards Act 103 of 1977 or written permission is given by the City in terms of section 14(1 A) thereof.
3. The Applicant is ordered to pay the costs on the scale as between attorney and client