Trumper Trading 166 CC v Kouga Municipality (795/2013) [2015] ZASCA 18 (18 March 2015)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 795/13

In the matter between:

TRUMPER TRADING 166 CC Appellant

and

KOUGA MUNICIPALITY Respondent

Neutral citation: Trumper Trading v Kouga Municipality (795/13) [2015] ZASCA 18 (18 March 2015)

Coram: Maya, Cachalia, Saldulker JJA and Van Der Merwe and Mayat AJJA

Heard: 17 February 2015

Delivered: 18 March 2015

Summary: Land Use Planning Ordinance 15 of 1985 – whether municipal zoning scheme regulations permit the operation of a bottle store from premises zoned as ‘special business’ without the municipality’s further consent.

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ORDER

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On appeal from: Eastern Cape High Court, Grahamstown (Schoeman and Roberson JJ sitting as court of appeal):

The appeal is dismissed with costs.

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JUDGMENT

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MAYA JA (CACHALIA, SALDULKER JJA, and VAN DER MERWE and MAYAT AJJA concurring):

[1] The central issue in this appeal is whether the Jeffrey’s Bay Municipality: Zoning Scheme Regulations (the regulations),¹ permit the operation of a bottle store from premises zoned as ‘special premises’ without the special consent of the respondent (the municipality). The question arose in an appeal brought before the Eastern Cape High Court, Grahamstown (Schoeman and Roberson JJ) against an interdict granted by the magistrate, Humansdorp (Mr FJ Van Zyl) which prohibited the appellant from conducting the business of a bottle store from its premises. The high court held that municipal consent is necessary. This appeal, brought with the leave of this court, challenges that decision.

[2] The appellant is a close corporation and sole proprietor of a bottle store which it operates on Erf 36, Paradise Beach, Jeffrey’s Bay (the premises) in terms of a liquor licence granted to it by the Eastern Cape Liquor Board in November 2008.² The regulations are applicable to the zoning and land use rights of the premises. In October 2008, the appellant’s former member applied to the respondent for special consent for the use of the premises and the buildings thereon as a bottle store, supermarket and coffee shop.

[3] The municipality refused the application ‘due to the objections received from surrounding property owners’. As it turned out, the appellant had in the meantime commenced the business of a bottle store without municipal consent and was selling liquor from the premises. When this came to the municipality’s attention, it directed the appellant to cease operating the bottle store. However, the appellant continued to trade whilst making further unsuccesful attempts until late in 2010, to obtain the consent. On 16 March 2011 the municipality instituted proceedings in the magistrate’s court to interdict the appellant from trading as a bottle store without the necessary consent.

[4] The municipality’s application was successful, as was its opposition to the subsequent appeal in the high court. There, the appellant argued, inter alia, that on a proper interpretation of the relevant zoning scheme regulations, the zoning of the premises as a ‘special business’ brought the bottle store within the ambit of ‘primary use’ businesses which are conducted without the municipality’s special consent. This was so, it contended, because this class of businesses included restaurants and licensed hotels which are more offensive than a bottle store as they allow the consumption of liquor on their premises. It would thus make no sense to require an off-sales bottle store, and not these other businesses, to obtain special consent to trade. And socio-economic factors, such as the safety and welfare of the community were irrelevant considerations as they were taken into account when the initial zoning detemination

was made³ and when the liquor licence application was considered. As indicated above, none of these submissions found favour in the high court, hence this appeal.

[5] On appeal before us, the appellant’s case narrowed to one ground. It contends that by virtue of the zoning applicable to the appellant’s premises as ‘special business’ in the regulations no consent is required to conduct the business of a bottle store. And because ‘special business’ is defined to include ‘shops’ as well as ‘similar uses’ a bottle store is a similar use as contemplated in the definition. The appellant thus did not need the municipality’s consent to operate the bottle store for which it has a valid liquor licence, so went the argument.

[6] The municipality’s power to regulate land use planning within the Jeffrey’s Bay area of jurisdiction derives from the Land Use Planning Ordinance 15 of 1985 (LUPO), in terms of which the regulations are promulgated. According to s 11 of LUPO, the general purpose of a zoning scheme (and the regulations) is to determine and provide for control over land use rights and over the utilisation of land in the area of jurisdiction of a local authority. Section 39(1) obliges local authorities to comply with and enforce compliance with LUPO itself and the provisions incorporated in a zoning scheme in terms thereof. In terms of s 39(2), no person may contravene or fail to comply with the provisions incorporated in a zoning scheme or conditions imposed in terms of LUPO. And s 46(1) makes such contravention or failure to comply an offence.

[7] The zoning, ie reservation of an erf for a specific use or uses, ‘special business’, which is applicable to the premises, is defined in the regulations as meaning ‘a site or building or structure on or in which business is conducted and includes shops, offices,⁴ financial institutions or restaurants or sites, buildings or structures for similar uses, but does not include places of assembly,⁵ institutions,⁶ public garages,⁷ industries⁸ or noxious uses’.⁹

[8] Part III of the regulations incorporates Table A which indicates the purpose for which land may be used in the various zones¹⁰ that it lists. According to the table, land and buildings thereon either have ‘primary use’,‘secondary use’ or ‘consent use’. And a ‘special business’ zoning has three use rights: (a) primary use which includes special

business, warehouse,¹¹ service station¹² and licensed hotel;¹³ (b) secondary use, which includes general residential buildings,¹⁴ place of assembly, and place of instruction,¹⁵ (irrelevant for present purposes); and (c) consent use which includes all uses other than those mentioned in (a) and (b), excluding noxious uses. Under the ‘special business’ zoning, the municipality’s special consent is required for all uses other than those categorised under primary uses.

[9] Of immediate relevance, the regulations define ‘bottle store’ as ‘a shop in which mainly alcoholic beverages are sold in the retail trade and includes an off-sales facility which is under the same management as a licensed hotel’. ‘Shop’, on the other hand, is defined as ‘a site or building, or portion of a site or building, utilised or intended to be utilised for the operation of a retail business, and includes a licensed restaurant¹⁶ and a workshop¹⁷ on the same premises, which is connected and is incidental and subordinate to the retail business, but does not include a service or filling station, bottle store, pub/tavern,¹⁸ public garage or industry’. Notably, a bottle store is expressly excluded from the definition of a shop.

[10] The question then is whether it is a ‘similar use’ to a shop as contemplated in the definition of ‘special business’ as the appellant contends it is. The words ‘similar use’ are not defined in the regulations. Counsel for the appellant submitted that in ordinary parlance, ‘similar’ means ‘of the same kind in appearance, character or quantity without being identical; having a marked resemblance or likeness’.¹⁹ Relying on this meaning, he argued that a bottle store is distinct from a ‘shop’ as defined, but nonetheless bears a close resemblance and is similar to it in the manner envisaged in the definition of ‘special business’. We were thus urged to find that the wide language of the definition of shop, and particularly the use of the word ‘includes’, suggest an intention to enlarge the meaning of the categories of business that would constitute ‘similar use’ to that of a shop. And there is thus no reason logically not to include a bottle store in the category that would fall within such similar usage, so it was argued.

[11] The appellant’s contentions seem attractive at first blush. I accept that ordinarily a bottle store would fall within the category of similar uses to that of a shop. But this conclusion ignores the admissible context provided by reading the relevant provisions in the light of the regulations as a whole.²⁰ As indicated above, a ‘bottle store’ is expressly defined in the regulations. It is also expressly excluded from the definition of a ‘shop’. In my view it is highly unlikely that the legislature would exclude a bottle store expressly from the definition of a shop but then allow it under the category of similar uses.

[12] There are other indicia in the regulations that suggest that a bottle store is not a similar use to that of a shop. Clause 4 of Part 1V of the regulations deals with the development parameters and land use restrictions applicable to each use right which

are not attached to a specific zoning and will change according to the use rights allowed in the zoning. Clause 4.6.1 contains the definition of ‘bottle store’ set out above. Clause 4.6.2 covers the relevant land use restrictions and provides that ‘[t]he land use restrictions applicable to a shop … will apply if a bottle store is allowed in the restricted business zone and the land use restrictions applicable to special business … will apply if allowed in the special business zone’. (Emphasis added.) The use of the words ‘if allowed’ amply demonstrates that a zoning of a ‘bottle store’ in a ‘special business’ zone does not automatically endow it with primary use status and discharge its obligation to seek municipal consent.

[13] In my view, the meaning which the appellant seeks to ascribe to the definition of ‘special business’ does not find support in the regulations. In the circumstances, the appellant is not permitted to conduct the business of a bottle store without the municipality’s consent. The decision of the high court was correct. The appeal must, accordingly, fail.

[14] In the result, the following order is made.

The appeal is dismissed with costs.

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MML Maya

Judge of Appeal

APPEARANCES

APPELLANT: JD Huisamen SC

Slabbert & Rossouw Attorneys, Jeffrey’s Bay

Bock & Van Es Attorneys, Bloemfontein

RESPONDENT: JJ Nepgen

CW Malan Attorneys, Jeffrey’s Bay

Phatshoane Henney Attorneys, Bloemfontein