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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 22623/16

DATE: 08/12/2017

In  the  matter  between

WILHELMINA VAN DER MERWE                                                                        Applicant

and

HENNIE COERTZEN                                                                                First Respondent

LOUISA COERTZEN                                                                          Second Respondent

GERTRUIDA ELIZABETH VAN DER MERWE                                      Third Respondent

DAVID BOTHA BEKKER                                                                     Fourth Respondent

LIZELLE BEKKER                                                                                   Fifth Respondent

LESLIE JACOBS                                                                                    Sixth Respondent

LOUISE JACOBS                                                                              Seventh Respondent

JUDGMENT

BRAND, AJ

[1] The Applicant , Ms van der Merwe, is a private maths teacher. She teaches extra   math lessons to school children from her home, Kiepersol Villa 3,  one  of four units in the full title complex Kiepersol Villa. She has been doing so since the beginning  of 2014 when she and her husband moved  there.

[2] The Respondents  are all either  owners  of  and/or  residents  in other  of the four  units in Kiepersol Villa.

[3] For some time the  Respondents  have  been  dissatisfied  with  the  Applicant teaching her math lessons from her home inside their complex - or, at least with  the extent to which she does so. Accordingly they have sought to dissuade her from continuing as she has.

[4] The Applicant alleges that the Respondents ' efforts  in this  respect  amount  to unlawful interference in her lawful business activity  and to harrassment  of her  and her pupils, and of their parents. She seeks an  order  from  this  court prohibiting them from harrassing her  so.

[5] Like all disputes between neighbours, this one is acrimonious and seems to have become intractable, leading even to what has been experienced as veiled allegations of sexual impropriety, prompting furious and indignant responses. Unlike most disputes between neighbours, however, this one - at least this application as an aspect of it -  turns out to be relatively simple   to resolve.

[6] The order the Applicant seeks from this court is a final prohibitory interdict. The requirements for a final interdict application are trite: an applicant must show 1) a clear right; 2) an injury to that right actually committed or reasonably apprehended; 3) the absence of a satisfactory alternative remedy. [1]

[7] Obviously, the linchpin of these requirements is the existence  of  a clear right:  only once that has been established as a matter of substantive law and on a balance of probabilities on the facts, can the applicant show an actual  injury  or one reasonably apprehended to that right and no other satisfactory remedy  through which to protect and vindicate that  right.

[8] The clear right that the Applicant asserts in this matter is her right in terms of the applicable provisions of the Tshwane Town Planning Scheme, 2008 (Revised 2014) ('the Town Planning Scheme') to conduct her home business  in  the  manner that she does, with  all the activities  attendant  upon it,  such  as parking. To succeed in her application she must as first requirement establish  the existence of this right as a matter of substantive law and show that  she  possesses it on the facts, before she can seek this court's protection of that right against interference.

The Applicant's clear right

[9] The Applicant relies for establishment  of her clear right on item 6(1)  of Schedule  9 of the Town Planning Scheme,  which by implication  allows for a dwelling   such as the Applicant 's, zoned in terms of the Scheme as 'Residential2 ', to be used as a place of instruction for no more than six  persons.

[10] On the Applicant 's own version she gives math classes on week days, mostly to groups of children in the afternoon and early evening (the last class is from 18:30 to 19:30). No one group exceeds six (in fact no groups  larger than four  children  at a time are catered for), but on any given day the Applicant might in total see upwards of 16 children.

[11] The Town Planning Scheme is silent on whether the 'no more than six persons' referred to in item 6(1) of Schedule 9 is six persons together at any one time, or  six persons per day. Should the correct interpretation be the former, the Applicant 's activities _would fall within the bounds  set by the Scheme  and  would be lawful. However , should it be the latter, the Applicant would clearly  be in excess of what is allowed in terms of the Scheme, so that her conduct would be unlawful and she would have no clear right to rely  on.

[12] Both the Applicant and the Respondents obtained reports from town planning  firms on whether the Applicant's business was compliant with the provisions  of  the Town Planning Scheme. Neither of these reports ventured an  opinion  on which interpretation of the two possible ones proferred  above is the correct  one.  It remains for this court to decide the issue.

[13] In her founding affidavit, the Applicant proceeds on  the  assumption  that  the Town Planning Scheme allows for six persons at any given time, so that her classes were inside the Scheme and lawful. Mr Jacobs SC  for the Applicant  at  the hearing of this matter could also offer no more than simply the assertion that item 6(1) is open to this interpretation, so that the Applicant 's conduct is  lawful.

[14] By contrast, Mr du Plessis SC for the Respondents submitted that item  6(1) should  be interpreted  in light  of the Scheme  as a whole and in particular  in light of the purpose with which it was enacted - stated differently, in  light  of  the mischief it is intended to prevent.

[15] In this respect he referred me to item 1(7) of Schedule 9,  where  the permitted  use of a dwelling for a 'Place of Child Care' is outlined . Here also, the permitted use is limited to a number of six: 'a maximum  of six (6) pre-school  children'. Mr  du Plessis submitted that in this instance, given that children are typically left at a pre-school for the whole day, the maximum of six children clearly refers to a total  of six per day and does not allow for an unlimited number  of sessions  of care  with six children in any particular session. In this light he submitted further that it would make little sense, if a pre-school is limited to six children per day, to allow an unlimited number  of children per day to attend a place of instruction  in terms  of item 6(1), as long as there are at any given time no more than six  present.

[16] This is so, he continued , because the mischief both items 1(7) and 6(1) are intended to address is a constant and heavy flow of human traffic in and  out of  the dwelling in question, with the resultant disturbance that  would  inevitably  cause neighbours - disturbance that is incidentally also prohibited by item 5 of Schedule 9.

[18] I find this persuasive.  It seems  to me to make no sense that in seeking  to limit  the number of persons receiving instruction at a home business so as  to ameliorate any nuisance impact the business might have on neighbours , the Scheme would allow for a situation where, as long as no more than six persons are present at any given time, as many sessions as the owner of  a  home  business may care to have, may be fitted into a day. That would  be no limitation  on numbers at all. To illustrate: on the Applicant 's own  version  she  teaches groups, usually of four at a time on weekdays from after school to 19:30 in the evening (one hour sessions). This would mean that she potentially sees 20  children per day -  had she taught mornings also, at least 40.

[19] I conclude on this issue by holding that indeed item 6(1) of Schedule 9 should be read to mean that at a home place  of instruction  no more than six persons  per day may be catered for. This means that the Applicant's current practice falls foul of item 6(1) and is unlawful, so that she has no clear right to continue with it undisturbed.

[20] Should I be wrong on this, the Applicant faces another hurdle in establishing a  clear right. The Town Planning Scheme is prescriptive also with respect  to  parking that must be provided for a home business in the form of a place of instruction . Schedule 4 of the Town Planning Scheme requires that, in a complex such as Kiepersol Villa, at least 2 parking places must be provided per unit in the ordinary course of events. Should a unit be used for a home business, as in this case, an additional parking space must be provided -  that is three in  total.

[21] On the Applicant 's own version only two parking places are provided inside the complex for her unit. Should those two parking spots be occupied , parents of her pupils will park either next to the servitude entrance and egress road to  the complex (this is unlawful), or outside on the pavement next to a public park. Also   in this second respect (failure to provide the required third parking placce) is the Applicant in contravention of the Town Planning Scheme, so that her cuurrent conduct is unlawful and she has no clear right to continue with it  undisturbed.

[22] In sum, the Applicant has failed to establish as  a matter  of substantive  law  and on the facts that she possesses the clear right she seeks to rely on. Her current conduct is unlawful and she has no right  to continue  with it  in the manner  that she has up to now - she also has no recourse to this court to have this unlawful conduct protected against interference. However, should she elect to reduce her numbers and to rectify the parking problem, she would then be entitled  to  continue undisturbed (unless her conduct, of course, quite apart from the prescriptions  of the Scheme, constitutes nuisance).

[23] In this light it is unnecessary for me to deal with the remaining two requirements for a final interdict - indeed, in the absence of a clear right it is not really possible to do so.

[24] What remains is the issue of costs. The Respondents have not prayed for any special order as to costs, asking simply that costs, including the costs for employment of senior counsel should follow the result. I find no reason to depart from this, which is in any event the usual course. It is after all the Applicant who initiated and persisted with this application .

[25] Accordingly , I order as follows:

The application is dismissed with costs, including the costs of employing Senior Counsel.

 

_____________________________

JFD Brand

 

Acting Judge of the High  Court

 

 

Appearances :

 

For the Applicant:                                       Mr HF Jacobs SC

                                                                       Instructed by DP du Plessis Inc

For the 1^st,2^nd 4^th and 5^th Respondents:    Mr J du Plessis SC

                                                                         Instructed by Fourie Fismer Inc

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