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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: M726/2019

In the matter between:-

LISA MONEY                                                                        Applicant

and

PIERRE NAUDE t/a THE YACHT VIEW GUESTHOUSE      First respondent

THE TRUSTEES FOR THE TIME BEING OF

THE PHILLIP NAUDE EIENDOMME TRUST (IT 435/07)      Second respondent

JANINE ARMER                                                                     Third respondent

THE MADIBENG LOCAL MUNICIPALITY                              Fourth respondent

FMM SNYMAN, AJ:

Introduction

[1]        The applicant seeks an interdict to prohibit the first, second and third respondents from operating a guest house from the property situated adjacent to her property in a prime spot in Hartbeespoort town, next to the Hartbeespoort Dam.

[2]         Hartbeespoort is a small resort town in the North West Province situated on the slopes of the Magaliesburg mountain and on the banks of the Hartbeespoort Dam. Hartbeespoort is the collective name of a few smaller towns situated around the Hartbeespoort Dam,  including  the   towns  of Schoemansville, Meerhof, lfafi, Melodie etc. Due to its location and proximity to both Johannesburg and Pretoria, it is a popular town for week-end breakaways and holiday homes.

[3]          The applicant, Lisa Money (Money) seeks the following substantive relief:

3.1                    That the first respondent is interdicted from using, and the second respondents are interdicted from allowing the first respondent to use the property known as the "Remaining Extent of Erf 827, Schoemansville Township, Hartbeespoort located in the Madibeng Local Municipality and held under Title Deed T39710/2008 situated at 33 Karel Street, Schoemansville, Hartbeesboort" for the purposes of conducting the business of a guest house  and/or backpackers lodge.

3.2                   The conditions under which the mentioned property are allowed to be used, are:

3.2.1              Having obtained the necessary and official re-zoning of the property from "residential" to "business"; and

3.2.2              With consent given by the Council of the Madibeng Local Municipality as stipulated in terms of Condition (g) of the title deed of the second respondent (the Trust);

3.3                   That the first respondent is interdicted from using, and the Trust is interdicted from allowing the property  to be used  as a guesthouse save with the abovementioned consent and appropriate zoning in terms of the Hartbeespoort Town Planning Scheme, 1993 as amended;

3.4                    That the fourth respondent (the local authority) is ordered to take such measures  as may be within its power to enforce the provisions of the title deed condition and the town planning scheme; and

3.5                    Costs of the application including that of the postponement of 9 October  2020  of two  counsel  where  employed, on an attorney and client scale jointly and severally.

(4)               The first  respondent (Naude) is a beneficiary of the second respondent, the Phillip Naude Eiendomme Trust (IT 435/07). Naude is married to the third respondent and he also is one of the trustees of the Trust.

(5)               The local municipality has filed a notice to abide by the decision of the Court.

(6)               It is prudent to mention that Naude and his wife do not permanently reside at the property, but in the Western Cape Province: more specifically in a town named the "Strand" and they conduct a non-profit organisation in Somerset West (which is 7,5km from the Strand). Money similarly does not reside at her property on a permanent basis, but in Sandton, Johannesburg. Naude submitted that the absence of permanent residency should be taken into account; ostensibly arguing it as a factor to mitigate the "nuisance" factor experienced by Money. Permanent residence of either party, however, is not a relevant issue to be taken into account in the determination of this application.

First appearance

[7]          Naude, his wife and the Trust made use of the services of an attorney in compiling and filing an opposing affidavit and heads of argument, which was drawn by counsel.  Naude appeared  in Court in person on 9 October 2020. He requested a postponement on the basis that his attorneys had withdrawn on 29 September 2020. In anticipation of the postponement, Naude addressed an e-mail to the attorneys of Money on 7 October 2020 requesting a postponement on the basis that his attorneys withdrew and he intended to obtain other attorneys. Being one day before the hearing and in the absence costs being tendered, Money did not agree to a postponement.

[8]          The applicant subsequently opposed the application for postponement when Naude applied for same in Court. Naude requested that the matter be postponed for two to three months, to enable him to secure the funds to obtain legal representation to oppose the application. He contended that the funds for legal representation were to be secured from the operation of the guesthouse. On 9 October 2020 after hearing argument, I granted a postponement to 23 October 2020 and reserved the costs of the postponement.

[9]          When the matter was argued on 23 October 2020, Naude again appeared in person and indicated that he continues to lack sufficient funds to afford the services of an attorney and counsel to argue the matter. He appeared on behalf of the first, second and third respondents and was duly in possession of the necessary resolutions to appear in their stead.

Factual background

[10]      Naude has been operating the guesthouse since November 2018, aptly named "The Yachtview Guesthouse". At the time of this application Naude had continued to operate the guest house from the property and expressed his unwavering intention to continue doing so.

[11]        As set out in paragraph 3 above, the relief sought by Money is mainly to obtain a final interdict to prohibit Naude from operating a guesthouse on the property in the absence of (a) proper zoning of the property and (b) consent given by the Council of the Madibeng Local Municipality in terms of the relevant condition in the title deed of the Trust. This condition reads as follows:

"That until a village or town council has been established in this township, no shop or business premises of any description whatsoever shall be opened or erected on this Erf.  After a village or town council shall have been established, shops or business premises shall be opened or erected only with the consent of such village or town council."

[12]        In addition to the conditions set out in the title deed, the operation of the guest house is also in contravention of the Hartbeespoort Town Planning Scheme, 1993 which was adopted pursuant to Part A of Chapter II of the Transvaal Town Planning and Townships Ordinance, 15 of 1986 ("the zoning scheme").

[13]          It is common cause between the parties that the operation of a guesthouse from the property is against both the zoning scheme and the title deed condition. In accordance with the applicable zoning scheme, the use of the property is indicated as "residential 1". The definition of "residential 1" of the zoning scheme determines the use of such a property as that for dwelling houses. In terms of the zoning scheme, the property on which the guesthouse is situated, would have to be classified from "residential" to that of "special" in order to legitimately conduct the business of a guesthouse. The property is not to be used for any other purpose than it is duly zoned for.

[14]         The guesthouse (or backpackers lodge) seems to be quite a large operation as it advertises the capability of accommodating up to 45 people in 8 rooms and boasts amenities which include a large entrance hall, high volume ceiling, 2 lounges opening with a sliding door onto a veranda which overlooks the swimming pool and well-kept garden. It also has free wi-fi and barbeque facilities.

[15]         Money addressed a complaint to the local municipality on 8 January 2019 in which she complained of the "Illegal establishment of a backpackers lodge on  consolidated  Erf 1/827 ..." No response was received. Another neighbour, a certain Mr Nass, complained to the municipality on 28 May 2019 by sending an e-mail requesting the authorities to "look into the matter as a matter of urgency as .... objections made to Mr Naude are not being taken into account as he continues to expand his operation." Again there was no response received from the municipality.

[16]          At the end of April 2019, Money complained directly to Naude by sending him a text message in relation to the misbehaviour of the guests staying at the guesthouse. The operation of the guest house became a thorn in the side of Money and several of the other neighbours around the property. The complaints related to the behaviour of the guests in the guesthouse and it included loud music, excessive use of alcohol, noise up to the early hours of the morning and parking of the guests' vehicles in unauthorised spaces. Several other issues, not directly irrelevant to this application, was also  complained  about. Naude denies that there can be any bad behaviour of the guests in the guesthouse, as he enforces a strict policy with rules against noise and the other problematic conduct of the guests. These rules were prominently displayed throughout the guesthouse and guests sign the rules to indicate their awareness and compliance with the rules.

[17]         Naude's wife applied for a protection order against the owner of one of the neighbouring properties in terms of section 3(4) of the Protection from Harassment Act, 17 of 2011 in the Magistrates' Court during July 2019. These proceedings are irrelevant to this application, but the affidavit by Naude's wife sheds light on the magnitude of the business of the guesthouse. In the documents filed, Naude's wife declared that the guesthouse had 5 employees and more or less 20 guests at any given time.

[18]          Being left with no assistance from the municipality and having obtained no satisfying response from Naude, Money enlisted the assistance of her attorneys and on 9 July 2019 a letter was addressed to Naude detailing the following:

18.1        Money's complaint of noise and nuisance emanating from the guest house; and

18.2        That Naude was requested to provide Money with the re­ zoning application to the municipality (if any) as well as the required consent stipulated in the title deed of the property.

[19]         After no response was received to the aforementioned communication, a further letter from the attorneys were addressed to Naude on 2 September 2019 demanding that the unlawful business as conducted on the premises be closed. Again no response was received. At the end of October 2019 Money's husband and her father visited the town planning division of the local municipality. It was confirmed that the property has not been re-zoned and no consent has been granted as required in the title deed condition.

[20]         In the answering affidavit, Naude admits that neither the zoning regulations nor the title deed permission has been obtained. He admits that the guesthouse is operated from the property, but denied that it is a nuisance and he held the view that the matter could and should have been salvaged between the neighbours themselves. He stated in his answering affidavit that he had submitted a re-zoning application to the municipality in April 2019, he has consulted with a city planner and "did not foresee any problems whatsoever to obtain the permission of (sic-the municipality)". This assumption that the municipality would grant the re-zoning application was made by Naude on the basis that the property is situated amongst many other guesthouses situated around the property. Naude argued that there were at least 10 other guesthouses in the close vicinity of Yacht View Guesthouse.

[21]         During January 2020 it became clear to Naude that the city planner that he had tasked, vanished in thin air and Naude's payment to the city planner was for nought.  He then appointed a consultant to attend to the re-zoning application.

[22]         This application for re-zoning of the property from "Residential 1" to "Special" was made in terms of section 56 of the Madibeng Spatial Planning and Land Use Management By-law. In his founding affidavit, Naude states that this application was submitted to the municipality on 31 January 2020. However, the document attached to the opposing affidavit in support of this allegation is one page referring to several documents attached to this one page and the page is stamped  by the Madibeng Local Municipality on 28 November 2019. None of the annexures are attached, and it seems to me that these annexures would be essential to have insight in a prima facie case on the prospects of success in the re-zoning application.

[23]           Naude's stance on the matter appears to be that the application for rezoning in itself entitles him to conduct the business of a guesthouse on the property. This position was argued by Mr Naude and he states in the answering affidavit: ".. .and thus, should I be able to supply the rezoning application, the applicant will then accept that the business will be lawfully conducted on the  property, on  the  premise that such an  application for rezoning was lodged."

[24]         At the time that this matter was argued, neither the re-zoning application from residential to commercial, nor the permission as required in the trust deed was obtained. It was not disputed that these applications were submitted. I accept that the applications have been submitted to the Municipality but no response have been received from the Municipality.

The Regulations and Legislation

[25]        The Town-Planning and Townships Ordinance, 15 of 1986 (the Town-Planning Ordinance) was assented to on 18 December 1986 and commenced on 10 June 1987. This Ordinance is applicable in Gauteng, North West and Limpopo Provinces and stipulates the purpose of town planning schemes in section 19 to be the following:

"the general purpose of a town-planning scheme shall be the co-ordinated and harmonious development of the area  to which it relates in such a way as will most effectively tend to promote the health, safety, good order, amenity, convenience and general welfare of such area as well as efficiency and economy in the process of such development."

[26]        The Town-Planning Ordinance aims to establish and promote co­ ordinated and harmonious development of the area with the purpose to promote health, safety, good order and other issues together with development of the economy in such development.

[27]         Section 58(2) of the Town-Planning Ordinance provides that "[a}ny person who contravenes or fails to comply with a provision of an approved scheme ... shall be guilty of an offence." This section  states in no uncertain terms that the failure to comply with the terms stipulated in the Town-Planning Ordinance is not merely a misdemeanour or contravention but non-compliance is expressly determined to be criminal conduct. This is a clear indication of the seriousness with which the local government regards non-compliance with the Town-Planning Ordinance.

[28]         The criminal conduct and the seriousness of non-compliance with the legislative framework is furthermore echoed in section 58 of the Spatial Planning and Land Use Management Act, 16 of 2013, which reads as follows:

"58 Offences and penalties

(1)                  A person is guilty of an offence if that person-

(a)                   contravenes section 38 (3);

(b)                   uses land contrary to a permitted land use as contemplated in section 26 (2);

(c)                    alters the form and function of land without prior approval in terms of this Act for such alteration;

(d)                   hinders or obstructs any inspector in the performance of any function in terms of this Act;

(e)                   wilfully disrupts the proceedings of a Municipal Planning Tribunal or of a person holding a public hearing or conducting an investigation for the purposes of this Act."

[29]        The Spatial Planning and Land Use Management Act, 16 of 2013, (SPUMLA) is national legislation of which the aim is set out in the pre-amble thereof to be the provision of a uniform, recognisable and comprehensive system of spatial planning and land use management which is to be established throughout the Republic of South Africa to maintain economic unity, equal opportunity and equal access to government services. The system of spatial planning and land use management is deemed to promote social and economic inclusion. The purpose of SPUMLA is stipulated expressly in Section 25(1) thereof as follows:

"A land use scheme must ... determine  the use and development of land within the municipal area to which it relates in order to promote-

(a)           economic growth;

(b)           social inclusion;

(c)           efficient land development; and

(d)           minimal impact on public health, the environment and natural resources."

SPUMLA thus prescribes that any land use scheme shall develop the area with the express purposes of economic growth and efficient land development, to name two of the specified purposes.

[30]         Section 26(1) and (2) of SPUMLA furthermore dictates that the adopted land use scheme will have the force of law and bounds all land-owners to  utilise  the  land  only  for  the  purposes as permitted by the relevant land scheme. It reads as follows:

"(1) An adopted and approved land use scheme-

(a) has the force of law, and all land owners and users of land, including a municipality, a state-owned enterprise and organs of state within the municipal area are bound by the provisions of such a land use scheme;

(2)                Land may be used only for the purposes permitted­

(a)                by a land use scheme;

(b)                by a town planning scheme, until such scheme  is replaced by a land use scheme ..."

[31]         The abovementioned prescripts leave no doubt as to the importance  of the land use scheme and the consequences in the event that land, or property situated on the land, is not utilised in the manner in which it is regulated to do so. It is clear that the Legislature places a high premium on the application of town ordinances and the proper, regulated use of all land and property situated on such land.

Arguments presented

[32]          It was argued, rightly so, by Mr Moultrie on behalf of Money that Naude's conduct in operating the guest house without proper authority or correct zoning is nothing other than criminal conduct. The argument was that this conduct is being executed in flagrant disregard of the Town-Planning Ordinance and the relevant Town Ordinance. Mr Moultrie further argued that Naude is effectively asking the Court to condone criminal behaviour and endorse continuation of the criminal act.

[33]        The argument was made that Naude should pay costs on a punitive scale, on the basis that he persisted with his actions even after knowing it amounts to criminal conduct, that he forced the applicant to approach Court as he clearly intends to continue operating the guesthouse, and that it should be clear to him that there is absolutely no defense to justify his actions of illegally operating the guesthouse.

[34]          In relation to the postponement, it was further argued on behalf of Money that the costs of the postponement  should also be paid by Naude on a punitive scale, as it is his own conduct that caused the postponement.  He did not provide the Court with any information as to the steps he had taken to obtain legal counsel and that the matter could have been disposed of on the first appearance. Factually there is no difference in the position that Naude was in at the time of the first appearance, as compared to the second appearance. The argument was that Naude probably had been aware that he is not going to obtain legal representation and he only wished that the matter should "go away" without doing anything about it. The argument was further that it is this attitude that Naude displayed throughout the events from the start: similar to the actions of an ostrich putting his head in the sand and hoping that the circumstances will change by itself.

[35]         In the heads of argument filed on behalf of Naude it was argued that the Court should exercise its discretion in favour of Naude. The argument presented on behalf  of Naude  is that  the Court has a discretionary power to exercise even in  the  instances where all the elements of a final interdict were  proven.  Mr Moultrie argued that the Court would only have a discretion to condone criminal conduct  in the cases  that  would  be regarded as "de minimus non curat lex" and that this application certainly did not constitute de minimus conduct.  The term "de minimus non curat lex" is described in the Trilingual Legal Dictionary by V. G. Hiemstra and H. L. Gonin, Juta, Pretoria,  Second Edition Mei 1986, to originate from Greek mythology in  the  saying "Jupiter has no leisure to attend to trivial things". (Cf. J. M. T. Labuschagne sub hac inscript. Acta Juridica 1973 291 sqq).

[36]          The argument presented by Naude can be  summarised  as follows. He has attempted to obtain authority to conduct the business of the guesthouse from the local municipality  as  long ago as from 2018. The operation of the guesthouse commenced more or less in the  year  2017  already. He argued that it would be unfair if he is to be penalised for the tardy  and cumbersome lack of action in a bureaucratic process to obtain the necessary permission from the municipality to operate the guesthouse. He argued that he should not be the only one to be "punished" since the municipality should have provided  reasons  why  the  re­ zoning has not been done yet. He said he is living with his wife in the Strand and they  operate  a  non-profit  organization  (NPO) in Somerset West. Naude said he and his wife are also very involved in charity work in Cape Town. This argument I understood to be in support of eliciting sympathy from the Court.

[37]         Naude argued that the operation of the guesthouse was initiated with the purpose to create a peaceful place in memory of his late father He mentioned that he has now appointed a town planning company to see to the re-zoning of the property and the necessary permission as required in the Trust Deed.

[38]         In his defense, he argued that there is no less than 10 guesthouses around the Yacht View Guesthouse and the process of obtaining the permission and re-zoning would probably be purely procedural and administrative of nature, as the application for rezoning has overwhelming merits on the basis that it is situated in a prime spot and amongst so many other guesthouses. He strongly denied that his neighbors could be negatively affected to such an extent that it would justify court proceedings. He argued that he does not allow alcohol on the premises and that he has implemented measures of control in the guesthouse. This is contained as strict rules enforced by the guesthouse manager, which rules require that the guests are required to sign an undertaking that they will comply with the rules, prior to their arrival at the guesthouse.

[39]          Mr Naude argued that he did everything in his powers to appease his neighbors including Money, in addressing their complaints: he implemented the undertaking to comply with the rules that the guests signed before arrival, he removed the bunk beds and only left double beds and employed a full time guesthouse manager. He argued that the international Covid 19 pandemic affected the guesthouse business to such an extent that he is left with nothing. In Court he said that "everything is drained, I have no money left".

[40]         In relation to the costs of the application Naude argued that he did inform the applicant's attorneys that he needed time to get a lawyer and he should not have to pay the applicant's costs as he has no money. In support of the latter statement  Naude repeated that his wife works for a NPO Charity for children in Somerset West and that he receives money from his wife. Mr Naude was not willing to take the Court into his confidence despite direct enquiries as to the source of finances that he and his wife use as living expenses, come from. He persisted in his attempt to create the impression that the guesthouse is his only source of income.

[41]          It was argued by Mr Moultrie that Naude is a seasoned business man who has several businesses and was the director  of several companies. Naude denied that those business and companies were active and that any income is derived from it.

Legal principles

[42]          The authority of the local municipality as well as the duty of municipal planning is in fact a Constitutional obligation to the relevant local municipality. It was stated by the Constitutional Court in Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another [2008] ZACC 12; 2009 (1) SA 337 (CC) that:

''The zoning of land and the question whether sub-division should be allowed in relation to any land is essentially  a planning function in terms of Schedule 4 and Schedule 5 to the Constitution ... Our Constitution requires municipal planning to be undertaken by municipalities."

[43]      In the matter of Johannesburg Municipality v Gauteng Development Tribunal and Others 2010 (2) SA 554 (SCA) it was found that:

"It is clear that the word "planning", when used in the context of municipal affairs, is commonly understood to refer to the control and regulation of land use, and I have no doubt that it was used in the Constitution with that common usage in mind."

[44]         The aforementioned matters clearly emphasise the importance of town planning and municipal duties. Since the authority of town planning is rooted in the Constitution, it follows that transgressions against such municipal planning, more specifically non-compliance with the zoning thereof, should not be easily overlooked by law enforcement.

[45]          The continued operation of the Yacht View Guesthouse in the absence of proper zoning, constitutes criminal conduct on the basis of the legislation referred to in paragraphs 25 to 30 above. In the matter of Bitou Local Municipality v Timber Two Processors CC and Another 2009 (5) SA 618 (C) it was found by Fourie, J that any condonation of acts which constitutes criminal conduct, would be tantamount to a Court abrogating its duty as an enforcer of law. The only instance in which the Court would be excused for condoning criminal conduct, would be where the acts are de minimus of nature.

[46]         In determining whether the operation of the guesthouse in the absence of proper zoning and permission is de minimus,  it would be required from the Court to take an objective view to balance Naude's conduct against the consequences caused by such conduct. The first to third respondents deny that the conduct of the guests of Yacht View Guesthouse are troublesome. This is, in my view, a baseless denial as none of the first to third respondents are witnessing the conduct of these guests. They have appointed a guesthouse manager. The applicant makes out an overwhelming case of the disturbances and difficulties experienced by her, and other neighbours, in the conducting of the guesthouse. I agree with the submissions made by Mr Moultrie that the actions of the first to third respondents do not qualify to be de minimus.

[47]            Having established that the conduct of the respondents in the operation of the guesthouse is unlawful and not de minimus, there is no discretion to be exercised by this Court in refusing the relief claimed.

[48]          In a different context, but on the same principle relating to the Courts view of condoning criminal conduct, it was found by Keightley, AJ (as she then was) in the matter of Ex parte MS and Others 2014 (3) SA 415 (GP) as follows in paragraph 33

"[33] In the absence of clear provisions to the contrary, a court would normally  be slow to interpret a statute so as to give the court a power to condone, and even to encourage, unlawful and criminal conduct by giving retrospective effect to an agreement linked to a prohibited act."

[49]          In application of the aforesaid principle, this Court cannot give permission, retrospective or otherwise, to allow criminal conduct to continue.  If this Court were to dismiss the application, it would be tantamount to turning a blind eye to unlawful conduct.

[50]          In the matter of Telkom SA SOC Ltd v Cape Town (City) and Another 2020 (1) SA 514 (SCA) Telkom requested the local municipality in the City of Cape Town to change the zoning of a property, to a zoning that allowed it to erect telecommunications station. Telkom proceeded to erect the station after submitting their application but before the local municipality has approved the application. Litigation between Telkom and the municipality ensued, which resulted in this matter in the Supreme Court of Appeal. Ultimately it was confirmed that the premature erection of the station of Telkom has infringed the bylaw governing zoning and Telkom was required to satisfy an administrative penalty before it continued with its application for rezoning.

[51]           It is trite that the Court has a discression in granting an interdict, but the above principles effectively diminish the Courts power to not grant an interdict as requested by the applicant

The interdict

[52]        Even though the Court has a very limited discretion to exercise in the granting of this interdict, I deem it necessary to enquire into the requisites of an interdict in establishing whether such requirements have been met by the applicant.

[53]          The requirements for a final interdict are trite and well established in our law as it stems from the matter of Setlogelo v Setlogelo 1914 AD 221 at 227. The Constitutional Court has recently confirmed these requirements in the matter of Masstores (Pty) Ltd v Pick 'n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) on page 620 as follows:

"The requirements for a final interdict are usually stated as

(a)                a clear right;

(b)                an injury actually committed or reasonably apprehended; and (c) the lack of an adequate alternative remedy."

[54]          It was held in Hotz and others v University of Cape Town 2017 (2) SA 485 (SCA) in paragraph [29] at 496H - 497A/B that there was no general discretion bestowed on the Court to refuse relief once an applicant in an application for an interdict had established the three abovementioned requirements for the grant of an interdict. The scope, if any, for refusing the relief was limited. This is in line with the matters referred to above in relation to the limited discretion that this Court has in refusing the relief on the basis that the interdict will prevent the continued criminal acts.

[55]         The requirements will be discussed individually to establish whether the applicant has proven each of the requirements for a final interdict on a balance of probabilities

A clear right

[56]          It was argued on behalf of Money that the clear right of the applicant stems from the title deed condition and proper zoning of the property to conduct a business from the property. The applicant indeed has a clear right that neighbouring properties would be utilised in terms of the proper zoning. It is common cause that the property is not being used in accordance with its zoning.

[57]          In the answering affidavit Naude denied that Money has a clear right, which legal position was conceded in the heads of argument drawn by counsel. In argument, Naude relied on a "general practice" that the business can continue until the municipality has made a final decision and any appeal against the decision has been disposed of. This argument is in contradiction with the legal principles and this argument has been found invalid in the Telkom matter as referred to above.

[58]           Although disputed 1n the answering affidavit, it was wisely conceded in the heads of argument filed on behalf of the first to third respondent that Money has the right to rely on Naude's infringement in conducting a guesthouse from the property which is zoned as residential.

[59]         The applicant has thus satisfied the requirement in proving that she has a clear and established right.

Infringement of the right

[60]         Money had to prove an infringement of the clear right, whether this infringement was actually committed or the infringement was reasonably apprehended. It is common cause that the property is zoned as "residential" but is utilised as a business in the form of a guesthouse.

[61]          In the heads of argument filed on behalf of Naude it was conceded that Money's right was infringed.

[62]          The facts speak for itself that the applicant has met this requirement as well.

Alternative remedy

[63]          Money has to establish the absence of an alternative remedy. It was argued by Naude that Money has an alternative  remedy and that she should, and still could, oppose the rezoning application which is currently being processed by the Municipality.

[64]         It is indeed so that the applicant is free to oppose the re-zoning application, but that would not be alternative relief to obtaining an interdict as sought. The process of the re-zoning would afford the neighbours of the property to be re-zoned, an opportunity to raise their concerns. This, however, is not a suitable alternative remedy in the exercise of her rights.

[65]         The application bears evidence of numerous attempts to have Naude comply with the zoning restrictments  of the property. She has sent messages by cellphone and e-mail urging Naude to address her complaints. She has resorted to attorneys who sent letters of demand to Naude. It is clear that Naude's attitude, even in Court when the matter was argued, was that the complaints are not valid and that he has no intention of seizing the operation of his business as a guesthouse.

[66]        I am satisfied that the applicant has no suitable alternative remedy than to approach the Court, as she did.

Conclusion

[67]      Money has proven, and is consequently  entitled to the relief sought in the notice of motion.

[68]      In addition to Money being entitled to the interdict as sought, the operation of the guesthouse in conflict with the zoning of the property, amounts to criminal conduct by Naude. As mentioned, the Court cannot view this conduct as de minimus and as such the Court has very little discretion to refuse an interdict sought to

prevent continued criminal conduct.

[69]         The applicant has requested a punitive cost order against the first to third respondents on the basis that Naude persisted with the operation of the guesthouse. The argument advanced on behalf of the applicant was that she was forced to approach the Court for relief, and that Naude then, despite his conduct being unlawful, opposed the application which resulted in the application having to be argued in Court. I agree with Mr Moultrie that such conduct should not be overlooked.

[70]          When the matter was postponed on 9 October 2020 costs were reserved. I requested Mr Naude to obtain legal advice in relation to the prospects of successfully opposing the application. Naude's cavalier disregard of the law and the fact that only a bare denial was made that he cannot afford to pay legal costs and he failed to take the Court into his confidence about his financial position, leaves me with the inference that there Is sufficient funds of which origin he was not willing to disclose.

[71]          In the matter of City of Tshwane Metropolitan Municipality v Grobler and Others 2005 (6) SA 61 (T) the respondents conducted a funeral undertaking and morgue business  from their residence, which was zoned 'special residential'. The business was found in conflict with the zoning of the property and the respondents persisted with their conduct and intended to proceed to do so.

[72]          In relation to an appropriate cost order, it was found by Southwood, J as follows:

"[12] This deliberate flouting of the law in the face of lawful attempts by the applicant to perform its statutory duty warrants a special costs order. To permit such conduct would result in anarchy, particularly in a city where it is notorious that contraventions of the scheme, in circumstances such as the present, are widespread. The applicant's position regarding costs may be compared to that of the Law Society in disciplinary matters - see Prokureursorde van Transvaal v Landsaat 1993 (4) SA 807 (T) at 8151 - 8160. There is no good reason why the applicant should be out of pocket when it performs its statutory duty of enforcing the scheme. Had the applicant requested costs on the scale as between attorney and own client I would have given serious consideration to such an order."

[73]           I find that the Grabler matter is completely comparable with the matter in casu. The difference is that the Municipality was the applicant in Grabler, where Money is a citizen who seeks to have her rights protected. I find that a proper case has been made out to warrant a punitive cost order.

Order

[74]         On the basis of the above, I grant the following order:

i           The first respondent Is interdicted from using, and the second respondents are interdicted from allowing the Remaining Extent of Erf 827, Schoemansville Topwnship, Hartbeespoort located in the Madibeng Local Municipality and held under the Title Deed T39710/2008 ("the title deed), situated at 33 Karel Street, Schoemansville, Hartbeespoort ("the property") to be used for the purposes of a business premises of whatsoever nature save with consent given by the Council of the Madibeng Local Municipality in terms of condition (g) of the title deed ("the title deed condition");

ii          . The first respondent 1s interdicted from using, and the second respondents are interdicted from allowing the property to be used for the purposes of a guesthouse save with the special consent given by the Council of the Madibeng Local Municipality in terms of the Hartbeespoort Town Planning Scheme, 1993, as amended ("the town planning scheme");

iii.        That the fourth respondent is ordered to take such measures as may be within its power to enforce the provisions of the title deed condition and the town planning scheme as may be within its power;

iv.        That the first to third respondents are ordered to pay the costs of the applicant, jointly and severally, the one paying the other to be absolved, on a scale as between attorney and own client, such costs to include those consequent upon the employment of two counsel where so employed;

v.         That the costs in order (iv) above include the costs of the applicant occurred in the postponement on 9 October 2020.

FMM SNYMAN

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES:

DATE OF HEARING: 23 OCTOBER 2020

DATE OF JUDGMENT: 23 DECEMBER 2020

COUNSEL FOR APPLICANT:      ADV MOULTRIE

COUNSEL FOR RESPONDENT:    PIERRE NAUDE (IN PERSON)

ATTORNEYS FOR APPLICANT:     MAREE & MAREE ATTORNEYS

11 AGAAT AVENUE

REVIERA PARK MAHIKENG

INSTRUCTED BY:

COWAN-HARPER-MADIKIZELA ATT.

136 SANDTON DRIVE

SANDHURST, SANDTON

IN PERSOSN:

PIERRE NAUDE

ERF 827

33 KAREL STREET SCHOEMANSVILLE

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