THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1315/2016

In the matter between:

ESQUIRE CONSULTING AND MARKETING CC   FIRST APPELLANT
CHRISTO STOCKENSTRÖM                                 SECOND APPELLANT
GERHARDUS HAGER DREYER NO                        THIRD APPELLANT
(IN HIS CAPACITY AS TRUSTEE OF THE
G H DREYER FAMILIE TRUST, IT7829/02)
FRANCIS DELINA DREYER NO                           FOURTH APPELLANT
(IN HER CAPACITY AS TRUSTEE OF THE
G H DREYER FAMILIE TRUST, IT7829/02)
SIX FIFTEEN INVESTMENTS (PTY) LIMITED     FIFTH APPELLANT
THOMAS ROBERT PEACOCK EDWARDS             SIXTH APPELLANT
MARTHINUS JAKOBUS RUDOLF MARX        SEVENTH APPELLANT
DR IVAN MARX MEDFORUM                               EIGHTH APPELLANT
INCORPORATED
BHARATKUMAR KANTILAL MEHTA                   NINTH APPELLANT
ASHLEY HODEN PARKER NO                                TENTH APPELLANT
(IN HIS CAPACITY AS TRUSTEE OF
THE ASHLEY PARKER FAMILY TRUST
TM 5789/1994)
BEVERLEY JOAN PARKER NO                      ELEVENTH APPELLANT
(IN HER CAPACITY AS TRUSTEE OF
ASHLEY PARKER FAMILY TRUST
TM 5789/1994)
ALAN ROLAND COUSINS NO                            TWELFTH APPELLANT
(IN HIS CAPACITY AS TRUSTEE OF THE
ASHLEY PARKER TRUST TM 5789/1994)

CORNELIS ABRAHAM TROSKIE NO       THIRTEENTH APPELLANT
(IN HIS CAPACITY AS TRUSTEE OF
THE BOET TROSKIE KINDERS TRUST
TMP 1447/2015)
STEPHANUS FRANCOIS NEL NO             FOURTEENTH APPELLANT
(IN HIS CAPACITY AS TRUSTEE OF
THE BOET TROSKIE KINDERS TRUST
TMP 1447/2015)
JACOBUS GERHARDUS TROSKIE NO         FIFTEENTH APPELLANT
(IN HIS CAPACITY AS TRUSTEE OF
THE BOET TROSKIE KINDERS TRUST
TMP 1447/2015)
CEDRIC JOHN PETERSON NO                      SIXTEENTH APPELLANT
(IN HIS CAPACITY AS TRUSTEE OF
THE BOET TROSKIE KINDERS TRUST
TMP 1447/2015)
JEMMA ANN SURRIER                             SEVENTEENTH APPELLANT

and

SEA GLADES HOLDINGS (PTY) LTD                    FIRST RESPONDENT
NEVIL LEIGHTON HULETT                              SECOND RESPONDENT
KOUGA MUNICIPALITY                                        THIRD RESPONDENT
EASTERN CAPE LIQUOR BOARD                    FOURTH RESPONDENT

Neutral citation:  Esquire Consulting and Marketing CC v Sea Glades
Holdings (Pty) Ltd (1315/2016) [2017] ZASCA 167 (30 November 2017)

Coram:
Ponnan, Bosielo, Leach and Mathopo JJA and Ploos van Amstel
AJA

Heard:
10 November 2017

Delivered: 30 November 2017

Summary:  Simultaneous applications for rezoning and subdivision of land
brought under the Land Use Planning Ordinance 15 of 1985, Cape (LUPO):

subdivision granted but rezoning of certain erven to business deferred for
further information: later application brought for rezoning of those erven to
business: this construed as part of original application that had been deferred:
two year utilisation period envisaged in s 16(2)(a) of LUPO therefore not
applicable: property in any event utilized for business purposes as envisaged by
LUPO within that period: claim for an interdict based on allegation that
property‟s use for business purposes was illegal accordingly dismissed.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Port Elizabeth
(Goosen J sitting as court of first instance):

The appeal is dismissed with costs.

________________________________________________________________
JUDGMENT
_____________________________________________________________

Leach JA (Ponnan, Bosielo and Mathopo JJA and Ploos van Amstel AJA
concurring)

[1] The principal issue that has to be decided in this matter is whether the
immovable property owned by the first respondent and more fully described as
erf 3306 Sea Vista, in the Kouga Municipality (erf 3306) is zoned for business
purposes under the Land Use Planning Ordinance 15 of 1985, Cape (LUPO).

The appellants contend it is not and that the respondents ought therefore to have
been interdicted by the court a quo from using it for a business purpose. The
respondents adopt the contrary standpoint. The outcome of this appeal turns on
the resolution of this issue.

[2] The appellants are either the owners of immovable property, or the
trustees of trusts which own immovable property, in what is known as Marina
Village, in which erf 3306 is also situated. Marina Village, in turn, forms part of
the well known St Francis Bay Marina at St Francis Bay, Eastern Cape. The
development of Marina Village, which is described as being the final phase of
the St Francis Bay Marina, was carried out by the first respondent which
appears to be the alter ego of its managing director, the second respondent. The
first respondent is also the registered owner of erf 3306.

[3] In December 2015, the appellants applied to the Eastern Cape Division of
the High Court, Port Elizabeth for an order interdicting and restraining the
respondents from conducting any business whatsoever on erf 3306. They
alleged that the first and second respondents were in the process of establishing
a restaurant business on erf 3306 which, they alleged, was contrary to the
existing town planning scheme and zoning of the property. At the same time,
they sought an order interdicting the fourth respondent, the Eastern Cape Liquor
Board, from issuing the first and second respondents with a liquor licence for
the premises. The third respondent, the Kouga Municipality, within whose
municipal area the St Francis Bay Marina falls, was also joined as an interested
party although no relief was sought against it. For convenience, I intend to refer
to the third respondent simply as „the municipality‟. Both it and the fourth
respondent played no active part either in the proceedings in the court a quo or
before this Court.

[4] Although the appellants initially sought interim urgent relief, this was
later abandoned and by the time the matter came before the court a quo they
sought final relief. This was strenuously opposed by the first and second
respondents. The court a quo ultimately concluded that the appellants had not
established that it was unlawful to conduct a restaurant on the erf in question in
terms of its current zoning. Accordingly, it dismissed the appellants‟ application
with costs, although it subsequently granted leave to appeal to this Court.

[5] To resolve the current dispute regard must be had to the history of
erf 3306. In many respects, this history is shrouded in mystery due to
deficiencies in the papers filed in the proceedings, but what can be gleaned from
what was alleged is the following. What is now known as Marina Village
originally formed part of what was more fully described as „The Remainder of
Portion 32 of the Farm Goedgeloof No 745, St Francis Bay‟, a property zoned
for agricultural use. The first respondent desired to develop a portion of this
farm in order to extend the already existing St Francis Marina. Its proposal in
this regard involved the excavation and construction of a canal linking into an
existing canal of an earlier development of the Marina; the creation of an island
surrounded by water; and the subdivision of the property into various erven,
mostly residential.

[6] In order to give effect to this proposed development, the first respondent
applied to the municipality under s 16 of LUPO for a rezoning of the land it
wished to develop and, under s 24 of LUPO, for the subdivision of the property.
I should immediately record that ss 22(1)(a) of LUPO provides that no
application for subdivision involving a change of zoning may be considered
„unless and until the land concerned has been zoned in the manner permitting of
subdivision‟, But s 22(1)(b) goes on to provide that this shall not preclude
applications for rezoning and subdivision being considered simultaneously. The

first respondent therefore simultaneously applied for subdivision and rezoning.
These applications appear to have been supported, inter alia, by a drawing dated
September 2001 bearing the number SFM/LH/501. Unfortunately neither the
applications nor this drawing were included in the papers filed in the court
below, but the first respondent‟s allegation in a supplementary affidavit (p 266)
that such plan was identical to a plan annexure NLH 12 (p 271) dated August
2003, is not disputed (all the appellants disputed was that this latter plan was not
attached to the 2001 applications, which in the light of it being dated 2003 is
obvious). As appears from this plan, the respondents sought the sub-division of
the land it wished to develop and its rezoning to reflect 148 erven (62 canal
erven and 86 non-canal erven) to be zoned as residential, one canal erf and two
private space erven to be zoned as „Open Space II‟, various roads to be zoned as
„Transport Zone II‟ and two further erven (reflected on the plan as the disputed
erf 3306 as well as erf 3295) to be zoned as „Business Zone II‟. Of the 148
residential erven, it appears that the respondent applied for certain of them to be
zoned as „Residential Zone I‟ and others as „Residential Zone II‟ but these
details are unknown and are not relevant to the present dispute.

[7] In any event, on 13 December 2001 the municipality considered these
applications and resolved as follows:
„(i)
That the subdivision of a Portion of the Remainder of Portion 32 of the Farm
Goedgeloof No 745 be approved in terms of Section 25 of Ordinance 15 of 1985 the
Land Use Planning Ordinance subject to the following conditions:
(a)
The subdivision be according to drawing No SFM/LH/501 dated September 2001
subject to condition (b):
(b)
That the subdivision makes provisions for the following land uses:

1.
Residential Zone I

-
62 Canal erven – average size – 117m2

-
86 Non-canal erven – average size – 899.3m2

2.
Open Space Zone II

-
1 Canal Erf

-
2 Private Open Space Erven

3.
Transport Zone II

-
Roads
. . .
(ii)
That the land use applications for Residential Zone II and Business Zone II be
deferred in order to obtain more detail thereon from the applicant . . .‟

[8] Quite what happened in respect of the application to rezone certain of the
erven as „residential zone two‟ is uncertain but, as I said, those erven are of no
relevance to the present dispute. What is of importance in regard to erven 3306
and 3295, is that the decision to defer their zoning flies in the face of ss 22(1)(a)
of LUPO which, as already mentioned, provides that no application for
subdivision involving a change of zoning may be granted until the land
concerned has been zoned „in a manner permitting of subdivision‟. In the case
of those two erven the municipality put the cart before the horse, so to speak, by
first granting the subdivision and leaving the rezoning for later decision. Be that
as it may, the legality of this resolution has never been challenged and, on the
strength of well-known authority, the municipality‟s administrative decision in
this regard must stand.

[9] Armed with this resolution, the respondents proceeded to construct the
necessary canals to extend the marina, subdivided the erven in terms of the
approval, built roads, laid on infrastructure such as water, sewage and drainage,
and generally conducted themselves as if the Marina Village development had
been finally approved. But of course it had not and there was still the
unresolved question of the zoning of erven 3306 and 3295.

[10] To deal with this, instead of amplifying their already existing application
for rezoning, the respondents, by way of a fresh application, applied to the

municipality for those erven to be rezoned as „Business Zone II‟. This
application was eventually approved by the municipality on 23 September 2004.
By the time this was done, the provision of bulk services necessary for the
development had already been provided, subdivision of the erven had taken
place and at least certain of the residential properties had been sold to new
owners. Pursuant to the rezoning in September 2004, the general plan of the
subdivision of the development was finally approved on 17 October 2005.

[11] The first and second respondents submitted various site development
plans for Marina Village, and in April 2006 the municipality further approved a
site development plan for the property involving a mixture of land uses. In
respect of erf 3306 the plan reflected mooring jetties being provided in a
mooring basin created out of a large segment of the erf immediately adjacent to
a canal being submerged under water. It also provided for fishermen‟s cottages,
a slipway, shops, a restaurant, a village square, an oyster bar, a boat club house,
and parking and loading facilities. Aerial photographs taken in 2007 showed
that although the mooring basin had been constructed by then, no jetties had yet
been installed.

[12] As often happens in developments of this nature, disputes and tensions
arose between the respondents, as developers, and landowners in their
development. Although the precise troubles are not necessary to detail, one
dispute related to the provision of mooring facilities for landowners. Eventually
a so-called „settlement agreement‟ was concluded between the first respondent
and an organisation known as the Marina Village Homeowners Association.
The latter was represented at the time by the second appellant in these
proceedings; he being an attorney and landowner in the Marina Village (he is
also the appellants‟ attorney of record and he and his wife are the sole members
of the first appellant.) That agreement, dated 9 August 2008, dealt inter alia with

matters such as moorings to be erected on erf 3306 and the right of landowners
in Marina Village to use such moorings, the site development plan for erf 3306,
and the right of the homeowners association to have access to the commercial,
business and leisure facilities developed on erf 3306.  It was pursuant to this
that floating jetties came to be built in the mooring basin.

[13] It is clear from the terms of this agreement that the second appellant
regarded erf 3306 as having been zoned for business purposes. However, in
October 2015, when he learned that a restaurant was being built on the property,
he took offence to what he stated in the founding affidavit was „an unlawful
invasion of the appellants‟ privacy and right to peaceful and undisturbed
possession of their properties‟ likely to disturb the tranquil atmosphere of the
„peaceful residential character of Marina Village and surrounding residential
properties‟ – all of which is somewhat rich when one knows that he had known
for years the property was zoned for business purposes. In any event, the second
appellant immediately engaged the services of a town planner, Mr C J J Els of
Pretoria, and the two of them went to St Francis Bay and trawled through the
records of the municipality to see if they could find a way to attempt to stop the
development on erf 3306. They thereafter consulted with senior counsel in
Pretoria and prepared papers for an urgent application in which they sought to
interdict the respondents from proceeding with the construction of the
restaurant. At some stage the other appellants were drawn in to support the
application.

[14] The argument the appellants came up with was this:
(a)
The property had been subdivided by way of the municipal resolution of
21 December 2001;
(b)
By 23 September 2004 when the municipality approved the rezoning of
erf 3306, bulk services had been installed by the respondents and at least one

land unit had been registered as envisaged by s 27(1) of LUPO, so that the
subdivision of 21 December 2001 had by then already been deemed to be
confirmed under s 27(3);
(c)
In these circumstances the rezoning affected by the municipality‟s
decision of 23 September 2004 was what the parties referred to as a „standard‟
rezoning in which there was no related subdivision – in contrast to a rezoning in
terms of a substitution scheme in which there is always a related subdivision of
the property concerned;
(d)
Section 16(2)(a)(i) of LUPO, which deals with standard rezonings,
provides that such a rezoning lapses within a period of two years in the event of
the land concerned not being „utilised as permitted in terms of the zoning
granted by the said rezoning‟ within that period;
(e)
As erf 3306 had not been utilised for business purposes within two years
from the date of its rezoning for business purposes in September 2004, or so the
appellants contended, such rezoning had lapsed (of which they had been
unaware until the second appellant‟s investigations in November 2015);
(f)
The construction of a restaurant was consequently illegal in that it
offended the municipal zoning scheme in terms of which, so the argument went,
the property was zoned as residential.

[15] On this basis the appellants contended that, as neighbouring landowners,
they had a clear right not to have a restaurant built in their midst which would
be infringed if an interdict was not granted preventing its construction and use
on erf 3306. In a well-considered judgment the court a quo, after having
subjected the facts and the various provisions of LUPO to detailed scrutiny and
analysis, rejected this argument. It is not necessary for present purposes to
analyse its judgment, particularly as the appellants on appeal raised two
essential disputes for this court‟s decision – first, whether s 16(2)(a)(i) of LUPO
was of application as the appellants alleged and, secondly, whether there had in

fact been a utilisation of erf 3306 for business purposes after it had been
rezoned for such use in 2004 as the respondents contended. It was accepted that
if either of these issues was decided against the appellant, the appeal must fail.

[16] The appellants‟ argument in regard to the first of these issues echoed that
set out in para 14(a)-(c) above. I have difficulty with the argument that the
entire subdivision and rezoning of erf 3306 was effected by the municipality‟s
decision of 21 December 2001. It may well be that the municipal resolution of
that date was not challenged, and the rezoning and subdivision of, say, the
residential erven may well have been confirmed under s 27(3), but I cannot
accept that the same can be said in respect of erf 3306. One cannot be blind to
the fact that the rezoning of that erf was deferred by the municipality at that
time and, as I have already pointed out, LUPO requires the rezoning of a
property to be effected either before or simultaneously with its subdivision. To
pretend that this had in effect been done, even though it had not, would sanction
the very situation which the lawgiver had wished to prevent, and undermine the
principle of legality – compare Cool Ideas 1186 CC v Hubbard & another 2014
(4) SA 474 (CC) paras 52-53. Even if the decision of 21 December 2001 stands,
I therefore do not see how the deeming provisions of s 27(3) LUPO can be
applied to a subdivision not lawfully effected under the provisions of that
ordinance.

[17] No final decision on this need be taken, however, as on the facts it seems
to me that what in fact occurred, as the municipality indeed intended, was that
although the subdivision and rezoning was approved in respect of certain of the
erven, the simultaneous applications for subdivision and rezoning relating to
erven 3306 and 3295 were effectively postponed for a final decision thereon to
be taken later. It is significant that the municipality, in considering the
subsequent rezoning application, considered it to be part of the initial

application for rezoning that had been determined together with the subdivision
application in December 2001. At a meeting of its Standing Committee for
Works, Planning and Development held on 24 August 2004, (p 77 and
following) a recommendation to approve the rezoning of erf 3306 was passed.
The minutes of the meeting record that reference was made to the decision of
December 2001, that „the Council had referred the proposed Business Zone . . .
back subject to formal application and Site Development Plans indicating
proposed uses being submitted‟ and that the subsequent application for rezoning
had therefore been submitted for that purpose. In these circumstances it would
be splitting technical hairs, in my view, to hold that the subsequent application
was a wholly fresh proceeding and did not form part of the initial application.

[18] Accordingly, the decision on 23 September 2004 to approve the rezoning
of erf 3306 brought finality in respect of the earlier application for subdivision
that, for all practical purposes, had been approved in principle in December
2001 and then put on hold by reason of there being no finality in respect of the
rezoning of erven 3306 and 3295. In these circumstances, the argument that
subdivision of erf 3306 had been effected before 2004, so that the subsequent
application for rezoning was a standard rezoning application attracting the
provisions of s 16(2) of LUPO, must fail.

[19] On this basis alone, as the two year period in s 16(2) upon which the
appellants have hung their hat, does not apply, the appeal must fail. But for the
sake of completeness, and even if that was not the case, there seems to me to
have been a clear utilisation of erf 3306 as permitted in terms of the business
zoning before a period of two years from the rezoning for business had elapsed.

[20] In this regard the appellants alleged in their founding affidavit deposed to
in 2015 that the erf „has not been used as a shop or as a restaurant until date

hereof‟ and that the construction work that had begun that year constituted „the
first concrete indications of an intention by the first and second respondents to
utilise erf 3306 for any of the purposes authorised by “business zone II”‟.
Bearing in mind that s 2(xxx) of LUPO contains the definition that
„“utilisation”, in relation to land, means the use of land for purposes of the
improvement of land, and “utilise” has a corresponding meaning‟, this is a
somewhat simplistic view of what was in issue. In the light of this definition,
even if s 16(2) was of application, it was not necessary for the erf to have been
used as a shop or as a restaurant during the two year period as alleged by the
appellants – it was sufficient if the land was used for purposes of improvement
for use in terms of its permitted zoning.

[21] And that is precisely what the respondents did. By 2004 it had excavated
a substantial portion of the property to create the mooring basin which
effectively forms part of a canal that was created; by 2006 the canal walls,
required to accommodate the area of the restaurant, had been constructed as had
the foundations for the deck of the restaurant which is now been built; and by
that time a wooden walk way had been built to join the restaurant deck.

[22] The appellants argued that this evidence was unsatisfactory as it had been
forthcoming in supplementary affidavits filed at the eleventh hour. While that is
so, the appellants never sought an opportunity to respond which they could
easily have done had they disputed the allegations. But more importantly, as
already mentioned it is common cause that by 2004 the respondents had
provided the basic amenities and infrastructure for the development, including
erf 3306. They had therefore effected improvements upon that erf with the
intention for it to be used for business purposes, as had been envisaged in the
initial simultaneous applications for rezoning and subdivision.

[23] It was argued on behalf of the appellants that the fact that this basic
infrastructure had been provided should be ignored as it had been put in place
before the application for rezoning was approved in September 2004, whereas
the only period of relevance was the two year period immediately after that
event. This argument cannot be accepted. The bulk services were provided to
erf 3306 in the clear anticipation that its ultimate rezoning would be approved,
which it was. It seems to me to matter not that the infrastructure had been
installed prior to approval of the rezoning, which resulted in the respondents not
having to provide it thereafter. The fact remains that by the end of the two year
period relied upon by the appellants, the improvements had been effected as
part of the development of the erf for the business purposes for which it had
been rezoned.

[24] In these circumstances the second issue relied upon by the appellants
must be determined against them as well. They therefore failed to prove their
case that the building of a restaurant was unlawful, and their application was
correctly dismissed by the court a quo.

[25] The appeal is dismissed with costs.

______________
L E Leach
Judge of Appeal

Appearances:

For the Appellant:

J P Vorster SC
Instructed by:

Stockenström Fouché Inc Attorneys, Pretoria

McIntyre Van Der Post Attorneys,

Bloemfontein

For the 1st and 2nd Respondent:
G J Friedman
Instructed by:
Friedman Scheckter
Attorneys, Port
Elizabeth

Matsepes Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED
IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
30 November 2017
Status:
Immediate
Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

ESQUIRE CONSULTING AND MARKETING CC & OTHERS
V
SEA GLADES HOLDINGS (PTY) LTD & OTHERS

The appellants are owners of immovable property in what is known as the
Marina Village, an extension of the St Francis Bay Marina in the Eastern Cape.
They applied to court for an order interdicting and restraining the first and
second respondents from building and conducting a restaurant business on
another erf in the Marina Village, contending that to do so would be contrary to
the existing town planning scheme and zoning of the property. The basis of their
contention was that the property concerned had not been zoned for business
purposes but was, rather, zoned for residential purposes. Their application in the

Eastern Cape High Court was dismissed, and they appealed to the Supreme
Court of Appeal.

In a judgment delivered today, the Supreme Court of Appeal reviewed the
history of the zoning of the erf in question. This showed that there had been an
application by the respondents to subdivide the property which is now known as
the Marina Village into various residential and other erven and to zone the
erven so subdivided accordingly. This was done in respect of s 22(1)(b) of the
Land Use Planning Ordinance 15 of 1985, Cape (LUPO) which states that
although s 22(1)(a) of LUPO provides that no application for subdivision
involving changes zoning may be considered unless and until the land
concerned had been zoned in the manner permitting of subdivision, this shall
not preclude applications for rezoning and subdivision being considered
simultaneously. Unfortunately when it came to approval of the simultaneous
applications for rezoning and subdivision, the municipality granted the
subdivision in December 2001but, in respect of the application for certain of the
erven to be rezoned as business, postponed the matter for further information.

To deal with this, instead of amplifying their already existing application for
rezoning, the respondents applied afresh for rezoning of certain of the erven
which had been subdivided as aforesaid. This application was finally approved
in September 2004 when the erf in question was zoned for business, which
would include a restaurant.

Things were largely allowed to lie fallow until, some 11 years later, in 2015, the
respondents commenced building a restaurant on the erf in question. The

appellants then applied for the interdict. They argued that the subdivision had
been effected in December 2001; that this was deemed to have been confirmed
by the municipality under s 27(3) of LUPO before the approval of the
application for zoning of the disputed erf as business was granted in 2004;  that
s 16(2)(a)(i) of LUPO provides that a rezoning lapses within two years in the
event of land concern not being utilised as permitted in terms of the zoning, and
consequently that the 2004 zoning had lapsed as the property had not been used
for business purposes for more than two years before construction began on the
restaurant in 2015.

The Supreme Court of Appeal dismissed this argument. It held that the
municipality, in considering the rezoning application which was granted in
September 2004, considered it to be part of the initial application for rezoning
that had been approved in December 2001. Accordingly the decision of
September 2004 to approve the rezoning brought finality in respect of the earlier
applications for subdivision and rezoning, and that the two year period provided
for in s 16(2) of LUPO was therefore of no application. It found that in any
event the land had been used for purposes of improvement within the two year
period after the rezoning of the property so that even if s 16(2) had been of
application, its rezoning had not been lapsed.

The appeal was therefore dismissed, with costs.