THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 775/11
Not reportable
In the matter between:

CITY OF JOHANNESBURG                                                                   Appellant
and
CANTINA TEQUILA                                                                  First Respondent
BOWLWEB INVESTMENTS CC                                          Second Respondent

Neutral citation:   City of Johannesburg v Cantina Tequila (775/2011) [2012]
ZASCA 121 (20 September 2012).
Coram:
Brand, Lewis, Cachalia, Bosielo and Theron JJA
Heard:
6 September 2012
Delivered:
20 September 2012
Summary:     Where a Town Planning Scheme includes among its primary
rights the conduct of a hotel business, the scheme cannot be interpreted to
permit a stand alone restaurant and bar.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from:  South Gauteng High Court, Johannesburg (Kolbe AJ sitting as
court of first instance):
The appeal succeeds with costs including the costs of two counsel. The
order of the high court is set aside and the following order is substituted in its
place:
‘(a)
The first and second respondents are interdicted and restrained from
using or causing or permitting the use of Erf 1918 Witkoppen Extension 85
Township, Registration Division IQ, Gauteng and situate at Unit 13 Valley View
Centre, Campbell Road, Fourways (the property), for the purpose of a restaurant
or bar.
(b)
The first and second respondents are ordered to forthwith cause the
demolition of the corrugated iron structure erected at the entrance to and
enclosing the outside patio of the property.
(c)
Failing compliance in full by the respondents with the terms and provisions
of the order in para (b) above within one week from date hereof, the sheriff of the
court is authorised and directed to attend to the necessary demolition and the
removal of the rubble arising from the demolition.
(d)
The first and second respondents are ordered to pay the costs of and in
connection with the necessary demolition and removal of the rubble, jointly and
severally.
(e)
The first and second respondents are ordered to pay the costs of this
application, jointly and severally.’
The date contemplated in (c) above is the date of this court’s order.

________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA (Brand, Lewis, Bosielo and Theron concurring):

[1] This is an appeal against a decision of the South Gauteng High Court
(Kolbe AJ) dismissing an application by the appellant, a metropolitan
municipality, to interdict the respondents from conducting a restaurant and bar
business on a property in Sandton allegedly in contravention of the Sandton
Town Planning Scheme (the scheme). The high court upheld the respondents’
assertion that the business did not contravene the scheme. The appellant seeks
to reverse this finding and comes before this court with leave of the high court.
The essential dispute between the parties is whether the scheme, properly
interpreted, permits the operation of a restaurant and bar business on the
property.

[2] The municipality’s authority to regulate land use within the Sandton area
comes from the Town-Planning and Townships Ordinance 15 of 1986. The
principal instrument for carrying out this function is a town-planning scheme.1 The
general purpose of a town-planning scheme – sometimes referred to as a ‘zoning
scheme’ – must be directed towards:
‘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.’2

1 Provided for in Chapter II.
2 Section 19.

[3] Clause 12 of the scheme is relevant to this appeal. Appendix III to this
clause indicates the purposes for which land may be used or on which buildings
may be erected and used. The property that is the subject of this dispute is
zoned ‘Special’ in terms of the scheme. This means that the property may be
used only for the special purposes identified in the scheme. These special
purposes are referred to as ‘primary rights’ or more appropriately as ‘primary use
rights’ – as the municipality refers to it – and may be exercised without the
consent or permission of the municipality. Certain other rights referred to as
consent rights may be exercised with the consent of the municipality – an issue
that is relevant to the respondents’ alternative contention discussed below at
paras 10-12.

[4] The annexure to the scheme, referred to in the papers as the amendment
scheme 02-1649 (the amendment scheme), identifies the following primary use
rights and consent rights that are applicable to this property.
‘Offices, showrooms, including motor showrooms, public garages and motor cities,
hotels, specialised extensive retail facilities including factory shops, value centres, flea
markets, home and garden improvement centres and DIY centres, and with the consent
of the local authority, light industrial/commercial purposes, places of amusement, places
of instruction, recreational purposes as may be permitted with the written approval of the
Council and which do not create any nuisance, noise, dust, smoke or smells.’ (Emphasis
added.)

[5] It is apparent from a plain reading of the amendment scheme that the
primary land use rights identified do not include a restaurant or bar. However,
one of the rights identified is that of a hotel. The high court upheld the
respondents’ contention that because hotels usually also have restaurants and
bars it follows that the amendment scheme also permits stand alone restaurants
and bars. The learned judge reasoned that it would lead to absurdity and

anomaly to interpret the primary use rights to exclude a restaurant or bar
because this would mean that a hotel would not be able to have, as an ancillary
use, a restaurant or bar.

[6] I disagree with this approach. The language of the clause is plain and
unambiguous. It permits only identified primary use rights, not any other uses.
Significantly, excluded from the identified uses is any reference to a ‘place of
refreshment’, which the scheme defines as including a restaurant, but not a bar.3
This must mean that drafters of the amendment scheme probably consciously
excluded any ‘place of refreshment’ – including a restaurant – from the clause.

[7] Had the restaurant and bar business been part of a hotel, there would
have been merit in the submission that the business is ancillary to the hotel, and
does not detract from the primary right of a hotel. But it does not follow that
because a restaurant and bar may be part of the ancillary uses of a hotel, they
may also be read into the list of primary rights, as the high court found.

[8] A court is entitled to find that an interpretation is absurd if an omission is
so glaring or out of kilter with the overall purpose of the scheme that the result
could simply not have been contemplated. But a court may not, under the guise
of a concern to avoid absurdity, ignore the clear language of a provision simply
because of any perceived harshness or lack of wisdom.4 Nor may it construe the
provision in a manner that the language does not permit, for in so doing it is
improperly substituting its will for that of the lawmaker.

3 ‘Place of refreshment’ includes a restaurant, tea room and coffee house, the retail sale of meals
and refreshments, fresh produce, cold drinks, foodstuffs and reading matter, but excludes a hotel,
residential club, drive-in restaurant and boarding house, and also excludes the sale or supply of
liquor other than at tables at which an ordinary meal (as defined in the Liquor Act No 87 of 1977)
is being actually supplied to customers.’
4 Geue & another v Van der Lith & another 2004 (3) SA 333 (SCA) para 15.

[9] By concluding that a restaurant and bar should be added to the
lawmaker’s list of permissible uses so as to avoid absurdity and anomaly, the
learned judge improperly substituted her will for that of the lawmaker. Although it
may appear odd that the primary rights include hotels but not restaurants and
bars, I do not think that this omission is so glaring or out of kilter with the purpose
of the scheme that it can be said that such a result could never have been
contemplated. On the contrary there may be sound policy reasons why the
lawmaker would permit hotels but not bars and ‘places of refreshment’ such as
restaurants. It follows that the high court erred in its conclusion that the primary
use rights in the scheme permitted the conduct of the business of a restaurant
and a bar.

[10] The respondents contend in the alternative that even if the scheme did not
permit these uses, the municipality consented to the first respondent conducting
a restaurant business on the property. There is no factual basis for the
contention.

[11] These are the facts: On 30 March 2006 Mr H P Roos, a town planner,
wrote to the municipality on behalf of the respondents to enquire whether a bottle
store, butcher or restaurant is included in the list of permissible uses or whether a
rezoning or consent use application would be required for these uses. The
municipality responded to the ‘query’ in the following terms:
‘Your query dated 30 March 2006 regarding the inclusion of bottlestore, butcher and
restaurant in the current zoning, was discussed [at] a Planning Permission Meeting
(PPM) held on the 11 May 2006.
Based on the information provided, the above uses are included in terms of the
approved rights.
The applicant’s attention is drawn to the following:

This information does not bind the Municipality in anyway whatsoever to approve any
application on the subject property.

The information in the above regard should not be seen or interpreted as approval in
principal of any application that may follow suit on the subject property.’

[12] Relying on this exchange of correspondence, the respondents contend
that the municipality’s response amounted to a formal approval or consent for a
restaurant on the property. The contention is utterly without any merit: first, the
letter from the town planner was not an application for the approval of a
restaurant business, but merely a ‘query’ as to permissible uses under the
scheme; second, the municipality conveyed the information to the respondents
specifically on the basis that it was not bound to approve any future application
based on this information. At best for the respondents the municipality gave them
a non-binding opinion on their prospects for approval of a restaurant – nothing
more.

[13] What remains is a dispute over whether the respondents must demolish a
structure clad with corrugated iron, which they erected at the entrance to and
enclosing the patio of the restaurant, without the municipality’s permission.

[14] In terms of s 4 of the National Building Regulations and Building
Standards Act 103 of 1977, no structure that falls within the ambit of the definition
of a building may be erected without the written approval of the local authority.
No approval was obtained for the erection of the structure. The Act defines a
building as including:
‘(a) any other structure, whether of a temporary or permanent nature and irrespective of
the materials used in the erection thereof, erected or used for or in connection with –

(i) the accommodation or convenience of human beings or animals;
. . .’

[15] The structure obviously falls within the definition of a ‘building’. However,
the high court refused to order the demolition of the structure after it found that
there was a dispute of fact on the papers as to whether the structure was a
building or merely a pergola, for which permission was not required, as the
respondents contended. Counsel for the respondents wisely did not press this
contention before us as it too is devoid of any merit.

[16] In the result the following order is made:
The appeal succeeds with costs including the costs of two counsel. The
order of the high court is set aside and the following order is substituted in its
place:
‘(a)
The first and second respondents are interdicted and restrained from
using or causing or permitting the use of Erf 1918 Witkoppen Extension 85
Township, Registration Division IQ, Gauteng and situate at Unit 13 Valley View
Centre, Campbell Road, Fourways (the property), for the purpose of a restaurant
or bar.
(b)
The first and second respondents are ordered to forthwith cause the
demolition of the corrugated iron structure erected at the entrance to and
enclosing the outside patio of the property.
(c)
Failing compliance in full by the respondents with the terms and provisions
of the order in para (b) above within one week from date hereof, the sheriff of the
court is authorised and directed to attend to the necessary demolition and the
removal of the rubble arising from the demolition.

(d)
The first and second respondents are ordered to pay the costs of and in
connection with the necessary demolition and removal of the rubble, jointly and
severally.
(e)
The first and second respondents are ordered to pay the costs of this
application, jointly and severally.’
The date contemplated in (c) above is the date of this court’s order.

________________
A CACHALIA
JUDGE OF APPEAL

APPEARANCES

For Appellant:
J Both SC (with him A W Pullinger)

Instructed by:

Moodie & Robertson, Johannesburg

Claude Reid Inc, Bloemfontein

For Respondent:
L G F Putter

Instructed by:

Kuilman Mundell & Arlow, Johannesburg

Webbers, 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:
20 September 2012
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.

CITY OF JOHANNESBURG v CANTINA TEQUILA

The Supreme Court of Appeal (SCA) today held that the primary use rights in the Sandton
Town Planning Scheme do not permit Cantina Tequila and Bowlweb Investments cc (the
respondents) to conduct the business of a restaurant and a bar on their hotel property in
Sandton. The SCA upheld an appeal by the City of Johannesburg against an order of the
South Gauteng High Court, Johannesburg, dismissing its application to interdict the
respondents from conducting the business.

The property was zoned ‘Special’ in terms of the scheme, which meant that it may be used
only for the special purposes identified in the scheme.  These were referred to as ‘primary
rights’ or more appropriately as ‘primary use rights’. Certain other rights, which may be
exercised with the consent of the municipality, were referred to as consent rights. The
annexure to the scheme identified the primary use rights and consent rights that were
applicable to the property. These included, amongst other things, hotels but excluded a

restaurant or a bar. In dismissing the application the high court reasoned that it would lead
to absurdity and anomaly to interpret the primary use rights to exclude a restaurant or bar
because this would mean that a hotel would not be able to have, as an ancillary use, a
restaurant or a bar.

The SCA held that the language of the clause containing the primary use rights was plain
and unambiguous. It permitted only identified primary use rights, not any other uses. The
SCA stated that by concluding that a restaurant and a bar should be added to the
lawmaker’s list of permissible uses so as to avoid absurdity and anomaly, the high court
had improperly substituted its will for that of the lawmaker. It then made the finding
referred to above. The SCA also dismissed the respondents’ alternative argument that the
municipality had consented to Cantina Tequila conducting a restaurant business on the
property as having no factual basis. It further ordered the respondents to demolish the
corrugated iron structure which they had erected at the entrance to and enclosing the patio
of the restaurant without the municipality’s consent.