---

Not reportable

Delivered 20 June 2007

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 16278/06

In the matter between:

RD LOCHNER Applicant

and

HEUWELKOR SEWENTIEN (Pty) Ltd First Respondent

AB PRETORIUS Second Respondent

JOHN RUDDY, t/a JÉ-NAD MOTORS Third Respondent

M ROBINSON, t/a CYBER BIKE Fourth Respondent

N HOFFMANN, t/a THE LEMON TREE Fifth Respondent

CITY OF JOHANNESBURG Sixth Respondent

________________________________________________________________

JUDGMENT

________________________________________________________________

MURPHY J

1. The applicant is a lessee of part of certain premises owned by the first respondent, where she conducts a speciality meat shop trading as Carne Deli. In this application she seeks to enforce certain provisions of the Randburg Town Planning Scheme of 1976 in respect of the shopping centre situated at 63 Hans Strijdom Avenue, Linden Ext, Johannesburg and in particular the provisions relating to the provision of parking at the shopping centre.

2. The first respondent, as I have said, is the owner of the shopping centre, while the second respondent is its managing director and a shareholder. The applicant has deemed it necessary to join the second respondent who she believes is responsible for the unlawful behaviour of the first respondent and is aiding and abetting in such behaviour. The third to fifth respondents are other tenants at the centre, while the sixth respondent is the City of Johannesburg. Only the first and second respondents opposed the application.

3. The relief sought by the applicant is extensive. In the first instance she seeks an order that the first, second and third respondents be ordered within five days to make the twelve parking areas in front of the third respondent’s shop, adjacent to Hans Strijdom Avenue, available as general parking for public use. Secondly, she seeks an order that the first, second and third respondents be ordered within five days to remove certain obstacles in front of the third respondent’s show room. Thirdly, she seeks a final interdict prohibiting the third respondent from displaying vehicles on the parking areas of the shopping centre. The third respondent conducts business as a motor dealer. Fourthly, she seeks an order that the fourth respondent, a motorbike dealer, be prohibited from displaying motorbikes in the parking area in front of his shop. Fifthly, she seeks an order directing the first and second respondents, within five days of the order, to clearly outline the parking spaces at the shopping centre in white paint. Sixthly, she seeks an order directing the sixth respondent, the City of Johannesburg, within 30 days of the order, to ensure that the first and second respondents comply with the terms of Randburg Township Scheme in respect of the provision of parking. Finally, she seeks an order that the first and second respondents be ordered, within 30 days of the order or such time as the court considers appropriate, to make provision for 76 parking bays at the shopping centre. Various other prayers of the notice of motion seek to empower the Registrar or the applicant to take steps to achieve the objectives of the order in the event of the various respondents failing to comply with it.

4. The lease between the applicant and the first respondent was concluded during May 2004 and is effective from 15 June 2004. As I have mentioned, the applicant conducts a speciality meat shop from the leased premises. The applicant maintains that when she concluded the lease agreement the availability of sufficient parking space was highly relevant and an important consideration to her. In her view, sufficient parking is essential to enable customers to visit the Carne Deli. Shortly after the conclusion of the lease agreement, the second respondent identified the two parking bays in front of Carne Deli, as bays available to that business. The second respondent affixed a sign on each of these bays, in which the phrase “Carne Deli customer parking” appeared. The second respondent also identified a certain space before the backdoor of the business as space available for deliveries.

5. The applicant has made a significant investment in her business and has spent between R150 000 and R200 000 equipping the premises for use as a speciality meat shop. She has established a regular and reliable clientele and it would accordingly not be in her interests to merely abandon the premises as a result of the problems she is currently experiencing.

6. At the time the applicant commenced business at the premises there were six other tenants: The Lemon Tree, which operates as a combination between a car wash and a pub restaurant; Linen Laundry; a pet shop; a wholesaler; a pizza shop; and a BP Garage with a convenience store.

7. The third respondent, who trades as Je-Nad Motors, commenced business at the premises shortly after the applicant in early September 2004. He has erected six canopies on the area next to the pavement adjacent to Hans Strijdom Avenue and uses this area, comprising of twelve parking bays, permanently as a display area for motor vehicles. In addition, he displays motor vehicles on the parking areas in front of his shop.

8. The pizza business next to the applicant’s shop has been replaced by the fourth respondent, who conducts a motorcycle business from the premises. He uses the parking area in front of his shop to display his motorcycles. He has subsequently left the premises and a bakery now operates from his premises.

9. The Lemon Tree originally operated as a coffee bar and car wash. In recent time it has started doing business as a sports pub showing sports matches. At any time it can accommodate up to 60 people and more, and sometimes does so from 10:00 until late in the evening. The turnover in parking occupied by the customers of the pub is slow, as would be expected from customers visiting a pub.

10. The premises that were previously occupied by the pet shop are currently being converted into two premises, where a physiotherapist and photographer are intending to operate.

11. The applicant has painted a convincing picture that the parking situation is dire and that it is having a negative impact upon her business. The shopping centre is adjacent to a busy highway and it is critical that customers of the shop have some place to park. This is often not possible by virtue of the manner in which the first respondent appears to have allocated the parking between the different tenants and particularly because so much of the parking is being used by the third respondent for the purposes of displaying his motor vehicles.

12. The crux of the applicant’s case is that the respondents are depriving her of undisturbed possession of her premises as a result of insufficient parking bays. She contends that because the centre does not have sufficient parking for her and her customers the first respondent is not complying with the Randburg Town Planning Scheme of 1976. She claims furthermore that the problem is exacerbated by the fact that the lines of the parking bays are not properly demarcated.

13. The applicant predicates her entitlement upon both the lease and the Town Planning Scheme. Her contractual claim is to the effect that the provision of adequate parking facilities is essential to the successful operation of her business and she would not have concluded the lease agreement had such parking facilities not been available. Her claim premised upon the Town Planning Scheme relies on the relevant provisions of the Scheme which require six parking bays per 100 m² of shops. She calculates that, if the standard in the Scheme is applied to the shopping centre, the first respondent is obliged to provide 76 parking bays when in fact only 27 are currently provided for. She accordingly seeks that additional parking bays be made available to ensure compliance with the provisions of the Scheme.

14. The respondent has raised three points in limine, which I will discuss in due course.

15. The starting point, in my opinion, is to have regard to the applicability of the provisions of the Randburg Town Planning Scheme.

16. The currently applicable Town Planning Ordinance, is the Town Planning and Townships Ordinance 15 of 1986 as amended by proclamation 1 of 1992 and 161 of 1994. Section 18 of the Ordinance empowers local authorities to prepare a town planning scheme in respect of all or any land situated within its area of jurisdiction. Section 19 provides that the general purpose of a town planning scheme shall be the coordinated 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.

17. The current Randburg Town Planning Scheme of 1976 was proclaimed some years before the adoption of the current Ordinance. Nevertheless, the Ordinance is of application to the area. The Town Planning Scheme was proclaimed as such in terms of Administrator’s Notice 1746 of 29 December 1976. The area it is applied to is the area of jurisdiction of the erstwhile Randburg Municipality. The area became the Northern Metropolitan sub-structure, followed by the Randburg Transitional Local Municipality and then, upon the dissolution of these local authorities, it falls under the City of Johannesburg and Metropolitan Municipality in terms of the Municipal Structures Act of 1998.

18. The relevant provision of the Town Planning Scheme, upon which the applicant relies, is Clause 29. It reads as follows:

“Any person purposing to erect a building in the area shall provide and maintain at his own expense and to the satisfaction of the council, parking for motor vehicles on the site in the ratio as set out in table “H”. “

19. Table “H” looks as follows:

_______________________________________________________________________

Use of Building Minimum parking area to be provided

_______________________________________________________________________

Shops 6,0 Parking spaces per 100 m² of floor area

Showrooms 3 Parking spaces per 100 m² of floor area

Business premises (other than

offices, warehouses and medical

consulting rooms). 1 Parking space per 100 m² of floor area

Industrial Buildings, Noxious

Industrial Buildings 1 Parking space per 100 m² of floor area

Hotels 30 Parking spaces plus 1 parking space per

dwelling unit.

Residential Buildings 1,25 covered parking spaces per dwelling unit

of 2 bedrooms and less; 1,5 covered parking

spaces per dwelling unit of 3 or more bedrooms.

1 Parking space for every 2 dwelling units for

visitors

Places of Public Worship,

Social Halls and Places of

Amusement 1 Parking space for every 5 seats

Offices 2,5 parking spaces per 100 m² of nett office

floor area

Medical Consulting Rooms 6 Parking spaces per doctor, dentist or

Veterinary Surgeon

Other uses except dwelling

houses 1 Parking space per 100 m² of floor area

Public Garage 6 Parking spaces per 100 m² of workshop floor

area; 4 Parking spaces for every lubrication or

washing bay; 2,5 Parking spaces for every

100 m² of office/store floor area.

Buildings in the service

industrial area See Clause 14 proviso (xxiv).

20. The Town Planning Scheme further provides that the council may at its sole discretion relax the provisions of clause 29 in special circumstances or may accept payment of the sum of money in lieu of all or some parking to be provided which in their opinion would be sufficient to provide and maintain the same number of parking spaces in the vicinity of the site; or it may consent to the building owner providing elsewhere the required number of parking spaces.

21. With reference to the building plans of the shopping centre, the applicant has calculated that the total on-site parking requirement in terms of table “H” is 76 parking spaces and contends that this requirement is breached in that in effect only 11 parking spaces are available at the premises, although there are in fact 27, most of which are being used for the purposes of the motor vehicle dealership.

22. Before the applicant can succeed on this basis, she is required to satisfy the court that clause 29 of the Township Scheme is indeed of application. As I read clause 29, table “H” is only of application where a person proposes to erect a building in the area. The first respondent has filed affidavits by two town planning experts who both confirm that table “H” is not applicable to the premises on the basis that the pre-existing policy was that the provision of parking bays for tenants and customers of shopping centres applied only in respect of buildings built after 1976. The experts state that the building plans with regard to the shopping centre were approved during 1973 before the Town Planning Scheme of 1976 came into operation. They further gave the opinion that only new business premises or external extensions to existing business premises or shopping centres were targeted by the scheme. Thus, if new centres were established or existing centres were significantly or substantially upgraded and altered, then the requirements of table “H” would come into operation. The first respondent therefore submits that having regard to the business plans of the centre, there have been no significant external extensions to the existing building structure and therefore table “H” is not of application.

23. The averment that neither it nor its predecessors have externally extended the existing building structure, which structure was erected prior to the scheme coming into operation, is set out in the first respondent’s answering affidavit. This averment is not denied by the applicant in reply. It is accordingly the submission of the first and second respondent that there is no obligation upon it to provide 6 parking bays per every square metre of shop as required by table “H”.

24. At first glance there appears to be much merit in the respondent’s interpretation of clause 29. The requirement is directed to the future as is evident from the use of the words “proposing to erect a building”. The requirement also makes practical sense in that it aims to regulate parking for the future in respect of new buildings or buildings that are going to be significantly changed. A requirement that existing buildings would have to meet the parking requirement set out in table “H” would be onerous and in many instances would require existing land owners and shopping centres to knock down buildings to fulfill the parking requirements.

25. However, Ms Robinson, who appeared for the applicant, put up a challenging case that the intention was indeed to require compliance with table “H” even where lesser or internal alterations were effected to buildings. She referred to various definitions in the Town Planning Scheme in support of her submission. Thus, the phrase “erection of a building” is defined as to include “structural alterations or the making of any addition to a building”. It is common cause that the shopping centre underwent certain internal adjustments during 1981, as appears from certain building plans filed at that date, and that currently the previously existing pet shop is being converted in a photographer’s studio and physiotherapist consulting rooms. These internal adjustments, Ms Robinson submitted, constitute the erection of a building in terms of the definition in that they involve certain structural alterations and thus, she argued, table “H” has become of application.

26. I am unable to agree with the interpretation advanced by Ms Robinson. Although it is possible to interpret the expression “structural alteration” to include internal adjustments and re-structuring of a building, the term should be interpreted noscitur a sociis. That is, the expression “structural alteration”, having as it does a wide meaning, should be restricted under the influence of the words with which it is associated in the definition. While it is correct that an alteration of or change to the inside of a building affects the internal organisation or arrangement of the parts of a building, and thus literally would constitute a structural alteration, the expression as it is used in the Town Planning Scheme, may have a narrower meaning when construed with the apparent purpose of the provision in mind. The term “structural alteration” could widely embrace any change to a building or it could be restricted to alterations that are similar to an erection of a building or any addition to a building, such being the other activities identified within the definition. To resolve then the ambiguity as to whether the legislature intended all alterations to have the consequence that a land owner would be required to provide parking, the term or expression must be weighed against the overall objective of the Scheme.

27. In De Villiers v Cape Law Society 1937 CPD 428 at 431 recognition was given to Voet’s justification for departing from the literal meaning of a phrase in certain circumstances. Voet stated it thus:

“The legislature’s wish to depart from the proper signification of the words can be gathered from the antecedent or subsequent words of the law, from its preface, its conclusion, and the like; also from the reason of the law underlying the law itself; also from the fact that the words, if accepted in their proper signification would involve an absurdity, an impossibility, a defect or a meaning not sufficiently suitable for carrying out the thing intended.”

28. The imposition of the parking requirements in table “H” each time a tenant or owner in Randburg effected an internal adjustment to their business premises would not necessarily amount to an absurdity. However, it would unquestionably lead to an unreasonable and unjust result in many circumstances. A shop owner who knocked down an internal wall to extend his display area without any impact on the external appearance or use of the building would be required to incur additional expenditure of many hundreds of thousands of rand to comply with the parking requirement. The obvious injustice would be that the landlord would incur a significant cost not in contemplation at the time he concluded the lease. In keeping with the general presumption that the legislature does not intend unfair, unjust or unreasonable results to flow from an enactment, where two meanings may be given to a provision, and one meaning would lead to harshness and injustice, the court generally should opt for the meaning that has the less harsh consequence.

29. It would be, in my opinion, harsh, anomalous and unreasonable to require every landowner in Randburg who effects a small internal adjustment to its premises to then incur a substantial cost providing parking spaces, which in the present case would in fact require the landowner to knock down existing structures. Such could not have been in the contemplation of the legislature.

30. Ms Robinson has made something of the fact that the existing and previous Town Planning and Townships Ordinances applicable to the area provide for compensation where landowners might be affected by the requirements of the scheme which either directly or indirectly cause a diminution in value of the property by virtue of the operation of the provisions of the scheme. I am not persuaded that such a right would go far enough to redress the drastic consequences of the interpretation preferred by the applicant. The relief sought by the applicant, as I have said, would have the effect of significantly altering the layout of the shopping centre and would impact on the rights of all the tenants to occupy their existing premises and to conduct their businesses. Some would have to close down to make way for parking. The potential financial consequences would be extreme for the sixth respondent. Accordingly, in my opinion, it could not have been in the contemplation of the sixth respondent, or its predecessor, that when it introduced the parking requirements it would be expected to pay substantial amounts of compensation every time a landowner effected an internal adjustment to its business premises.

31. The purpose of clause 29 is to ensure that new shopping centres erected after 1976 provide adequate parking. New shopping centres would include not only newly erected centres but existing centres which are substantially altered through the addition of additional buildings or structural alterations tantamount to the erection of a new building. In such instances the planning regulations intend that as part of the approval process for the erection of such structures adequate provision is made for parking. The intention was not to regulate the past but to regulate the future. Clause 29 sensibly recognises that it would be practically difficult to impose such parking requirements in relation to existing buildings where no provision had been made. Practically, as already discussed, it would mean knocking down existing buildings or structures to make space or a plethora of applications for exemption.

32. In the result, therefore, I am not persuaded that the clause 29 imposes any obligations on the first respondent to meet the requirements of table “H” by virtue of the internal alterations effected in 1981 or currently being effected in converting the pet shop into a physiotherapy practice and photographic studio. Consequently, the applicant has no right to enforce table “H” and to require the first respondent to provide 76 parking bays in terms of the Randburg Township Scheme.

33. I turn now to consider whether the applicant can insist on any parking entitlement in terms of the lease. Counsel argued that the provision of adequate parking facilities is essential to the successful operation of the applicant’s business and she would not have concluded the lease agreement had such parking facilities not been made available. The submission is to the effect that the first respondent has failed to adequately maintain the premises and that the parking areas are not clearly delineated. In so doing, it was submitted, the first respondent has failed to place the applicant in beneficial occupation of the premises and the part thereof leased by her. It is further suggested that by permitting the third respondent to place a barrier in front of the one side of his showroom, the first respondent has limited the number of parking spaces available to customers and businesses on the premises. The problem is allegedly exacerbated by the fact that the first respondent permits the third respondent to use parking spaces on all sides of the showroom to advertise and display his vehicles for sale.

34. In terms of clause 3 of the lease the object of the lease is “the rental of a part of the property situated at 63 Hans Strijdom Drive, Lynden Ext, Randburg, better know as shop- ........... of the shopping centre that exists on this property”. This clause, read with the other provisions of the lease, identifies the subject of the lease as the premises or the shop. There is no clause expressly dealing with parking or the payment of rent for parking bays. The other provisions of the lease make it clear that the applicant has an obligation to use the property as a going concern for no purpose other than retail. She also undertakes to customise the premises. Similarly she is obliged to insure the glass and contents of the premises, while the lessor is obliged to insure the building and the structure of the premises. These clauses indicate that the parties had the shop in contemplation. Nowhere in the written terms of the lease is there any reference to parking. With regard to parts of the shopping centre that are not part of the premises, the tenant undertakes not to commit any acts within or around the premises that are illegal or in breach of any duties imposed by legislation. Likewise, she undertakes not to commit a breach of the conditions of title or the town planning scheme under which the lessor holds the premises. Beyond this there are no specific rights or obligations in relation to parts of the property that do not constitute the premises.

35. The applicant avers that after the commencement of the lease the second respondent identified the two parking places in front of her shop as being for the exclusive use of her business and a board was put up stating “Carne Deli Parking”. She maintains that she accepted that these parking places form part of the lease and thus were part of the premises. The respondents accept that the applicant was informed that she could use the two parking bays, but say this was no more than a courtesy provided to the applicant as a tenant. They also admit that the first respondent did place the two boards reflecting the name of the applicant’s business. However, the second respondent avers that neither he nor the first respondent have any control over who parks in those parking bays. Nevertheless, the second respondent seems prepared to concede that such bays are indeed reserved for the applicant. However, he ultimately takes the position that he has no obligation to ensure that they are used for that purpose.

36. Generally, a landlord, in addition to his duty to give possession and occupation of a premises in a proper state of repair, is required to maintain the property both externally and internally in good and tenantable repair and condition during the currency of the lease. He must maintain it in a condition reasonably fit for the purpose for which it was let. I am satisfied that in making the parking spaces available and putting up the boards indicating that they are for the exclusive use of the customers of the applicant, the first and second respondents have complied with their obligations in terms of the lease. It is difficult to see what more could be expected of them. In any event, the applicant seeks no direct relief in this regard in the prayers of the notice of motion. On the assumption that the applicant has permission to use the parking bays, it would be for her to enforce her rights in that regard in relation to third parties.

37. Insofar as it has been submitted that the provision of the two parking bays is insufficient, I would say the following: On the applicant’s version there are 27 parking spaces available at the shopping centre of which she is entitled to use 2. Were the provisions of table “H” applicable, there would be 76 of which, on her calculation, she would be entitled to 6. Six parking bays out of 76 would give her an entitlement to 7.8% of the parking space available. She currently enjoys 2 of 27 parking bays being 7.4% of the space available. Thus, accepting that table “H” is not of application, the ratio she enjoys, albeit inadequate, is fair in the circumstances.

38. For the foregoing reasons, although the court has some sympathy with the applicant’s difficulties, there is no legal basis either in the Township Scheme or the lease for granting the applicant the relief she seeks. Accordingly, it is unnecessary to consider or determine the point in limine regarding the alleged mis-joinder of the second respondent, who in any event will be entitled to his costs by virtue of the result. With regard to the second point in limine, that is the relief sought against the third respondent to the effect that the relief is not competent, here too it is unnecessary to decide the matter. The parking bays concerned, being those on the pavement area in front of the showroom, constitute a registered servitude of right of way for road widening purposes in favour of the local authority. Apparently, the sixth respondent has granted the first respondent permission to allow the third respondent to use the servitude. There is some dispute as to whether that use is limited to the display of vehicles or whether it could also be used for parking purposes. Because the applicant has not established any basis for an order compelling the first respondent to make such spaces available either to her or the public in general, there is no need to determine the matter.

39. In the result, the application is dismissed with costs.

JR MURPHY

Date Heard:24 May 2007

For the Applicant: Adv RM Robinson, Johannesburg

Instructed By:Aucamp & Cronje Attorneys, Johannesburg

For the Respondent:Adv W Wannenburg, Johannesburg

Instructed By: Gideon Pretorius Inc. c/o Hack, Stupel & Ross, Pretoria

---