IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No 6214/2010 & 19763/2010
In the matter between:

and

JUDGMENT

[2]     The Trust has limited its grounds of appeal to the following:

[3] A further ground of appeal in terms of a notice of amendment delivered on 3 February 2011 was abandoned during the course of argument when counsel for the Trust became aware that the Trust had misconstrued that portion of the reasons for the order upon which this ground of appeal was based .

[4] The Trust conceded that the defence of non-joinder of the lessee of the premises has not been raised as a ground of appeal.

WHETHER PARAGRAPH 2 OF THE ORDER IS UNENFORCEABLE AGAINST THE TRUST

[5] The Trust relies on certain authorities in support of its submission that the order is unenforceable against it. In order to place these authorities in their proper context, each will be considered in turn.

[8] The Appellate Division found that the order had been correctly granted. It was solely prohibitory in content and neither the owners nor the CPA and SAP had been required to do anything. There was thus no room for an argument that the order had been impossible of performance or. put differently, that it was unenforceable I will deal with this authority again hereunder.

WHETHER THE ORDER MADE IS MANDATORY OR PROHIBITORY

[15] Liebenberg launched her application on 25 March 2010 to interdict the Trust from performing any building or construction work on erf 2681 Paarl until such time as the requisite permission was obtained. In her founding affidavit she complained of the unacceptable noise levels being generated by a restaurant conducted on the Trust's property. In his opposing affidavit deposed to on 11 April 2010 Mr Frater, on behalf of the Trust, denied that the Trust was conducting the restaurant business known as 'Megu" and averred that the owner of the restaurant leased the premises from the Trust. Liebenberg also stated in her founding affidavit that on 11 March 2010 there was an advertisement in the local newspaper for employees for a new restaurant to be conducted on the Trust property In his answering affidavit Mr Frater admitted this and referred to the new restaurant as "an intended restaurant'. He also admitted that the extension to the existing zoning and building plans had not yet been approved. It is common cause that no approval to the zoning and the building plans had been granted right up until this matter was argued on 8 December 2010.

[16] The Trust thus knew that it would be unlawful for it to take any steps to cause or permit the operation of a restaurant until such time as the relevant approval had been obtained. It is clear however that despite this knowledge, and in the face of pending litigation in respect of its unlawful building operations, the Trust blythely proceeded to enter into a lease with a company, Windfall 32 Restaurant (Pty) Ltd ("Windfall") in August 2010 for the purpose of enabling the latter to commence its restaurant business on the premises. As set out in the reasons for my order, the representative of Windfall is not only a co-trustee of the Trust but is also the sister of Mr Frater.

[19) In the instant matter the municipality clearly sought an order enjoining the Trust to refrain from doing something (a prohibitory interdict), namely to refrain from causing or permitting the unlawful operation of a restaurant on its premises; and not to undo something (which, put differently, would be a mandatory interdict, being one which ordered the respondent to do something). The Trust argues that it is neither causing nor permitting the operation of the restaurant and that (although it acknowledges its unlawful conduct in so doing) it permitted the operation of the restaurant when it gave occupation of the premises to Windfall and concluded the lease in August 2010. It thus argues that the operation of the restaurant is accordingly being conducted in terms of an existing lease and that the Trust can do nothing to stop its operation, save by acting unlawfully.

VALIDITY OF THE LEASE

[20] The question which then arises is whether the lease itself could ever have been validly concluded between the Trust and Windfall, since, as argued by the municipality, the Trust had no lawful rights, and could thus not have passed any lawful rights to the lessee.

" 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-

(iii) during any period not being the period in respect of which such local authority has granted permission in writing for the occupation or use of such building or in contravention of any condition on which such permission has been granted; or,
(iv) otherwise than in such circumstances and on such conditions as may be prescribed by national building regulation, shall be guilty of an offence."

[23] Section 39(2) of the Land Use Planning Ordinance 15 of 1985 ("LUPO") provides that no person shall contravene or fail to comply with the provisions incorporated within a zoning scheme, and section 46 (1) of LUPO stipulates that any person who contravenes section 39(2) shall be guilty of an offence and on conviction liable to a fine not exceeding R10 000 or to imprisonment for a period not exceeding 5 years or to both such fine and such imprisonment.

[25]   In the instant matter:
25.1. The prohibition contained in section 39(2) of LUPO is clearly couched in peremptory language;
25.2. The prohibition contained in section 14(4) (a) of the National Building Regulations and Building Standards Act is similarly couched in peremptory language;
25.3. Criminal sanctions are imposed in the event that the provisions thereof are not complied with:

(a) a declaratory order that the operation of a commercial sawmill by the first respondent on the second respondents farm and the use of certain buildings for the sawmill were unlawful; (b) a final interdict prohibiting first respondent from operating a commercial sawmill on the farm and from using the buildings for the sawmill; and (c) a final interdict prohibiting the second respondent from permitting the first respondent to operate a commercial sawmill on the farm and to use the buildings for the sawmill. At the hearing of the matter, counsel for the respondents conceded that the applicant was entitled to the relief sought but asked that the interdicts be suspended pending the final determination of the respondents' rezoning application Counsel for the applicant argued that, were the court to suspend the operation of the interdicts, such suspension would be tantamount to the condonation of criminal conduct and the court thus had no discretion to suspend the operation of a final interdict.

[36.3] First and second respondents have wittingly and deceitfully established the sawmill illegally..."

[28] In this regard, I believe that it is important to bear in mind that, in the face of pending litigation to prohibit its unlawful conduct, the Trust entered into a lease with an entity represented by one of its very own co-trustees to permit the unlawful operation of a restaurant on its premises. In my view therefore, the lease cannot be regarded as a valid lease.

REMEDY AVAILABLE TO THE MUNICIPALITY IN EVENT OF NQN COMPLIANCE BY THE TRUST

[30] During the course of argument counsel for the Trust attempted to demonstrate how ineffectual the enforcement of the order would be by sketching the example of the sheriff attempting to evict Windfall under a warrant of ejectment, In my view, a warrant of ejectment has no relevance in this matter since the municipality is not armed with an order against the lessee, but with an order against the Trust which is unlawfully permitting the operation of a restaurant on its premises.

WHETHER LEAVE TO APPEAL SHOULD BE GRANTED

[32] In light of my findings and conclusions as set out above. I do not believe that there is a reasonable prospect that a court on appeal will come to a different conclusion.

[33] In the result, the Trust's application for leave to appeal is dismissed with costs, including the costs of two counsel.