- ZZ2 challenged alleged unlawful building, occupation and land use on municipal land next to its tomato farming operation.
- The Supreme Court of Appeal found that the High Court in Polokwane had applied the law incorrectly when considering harm and alternative remedies.
- Despite those errors, the appeal court found that ZZ2 had not established that its rights were harmed or were reasonably likely to be harmed.
A major tomato farming business in Polokwane, Limpopo, has lost its bid to stop what it says are unlawful activities on municipal land next to its property.
Bertie van Zyl (Pty) Ltd, trading as ZZ2, together with its subsidiary Doornbult 624 Boerdery (Pty) Ltd, approached the High Court in Polokwane over activities happening on Portion 93 of the Farm Doornbult 624. This land is owned by the Polokwane Local Municipality.
ZZ2 and Doornbult run their farming business on neighbouring Portion 94. Doornbult owns this land and leases it to ZZ2, which uses about 200 hectares to grow tomatoes. The dispute was about what the applicants described as unlawful activities taking place on the municipality’s land.
They complained about the construction and occupation of structures, land uses not permitted under the property’s agricultural zoning, the use of a borehole and refuse pit, and alleged breaches of environmental, planning and water laws.
ZZ2 and Doornbult argued these activities could affect their property rights, servitude, and access to water needed for farming. They asked the High Court for final interdicts to prevent the municipality from allowing or continuing these activities, and to force both the municipality and the MEC for Agriculture and Rural Development in Limpopo to enforce the relevant laws.
The High Court dismissed the application. It found that ZZ2 and Doornbult had not shown actual harm from the alleged unlawful activities. The court also found that another remedy was available, and it refused leave to appeal.
High Court applied the wrong harm test
The Supreme Court of Appeal found that the High Court had made a key error in considering whether ZZ2 was entitled to a final interdict. Acting Judge of Appeal GH Bloem, who wrote the judgment, explained that anyone seeking a final interdict must show a clear right, an injury actually committed or reasonably apprehended, and the absence of a satisfactory alternative remedy.
The High Court had treated actual harm as necessary. The appeal court found this was a misreading of an earlier Supreme Court of Appeal judgment. “The High Court therefore misunderstood this Court’s statement in Exxaro and, as a result, applied the law incorrectly,” Judge Bloem said. However, this error did not mean ZZ2 was entitled to the order it wanted.
Municipality’s land-use failures
The appeal court considered evidence of alleged breaches of the Polokwane Town Planning Scheme, the National Building Regulations and Building Standards Act, National Environmental Management Act 107 of 1998, Spatial Planning and Land Use Management Act 16 of 2013, municipal planning laws, and other requirements.
The evidence showed the municipality had either broken or allowed breaches of some of these legal requirements. But showing an unlawful act was not enough. ZZ2 still needed to show that the unlawful conduct harmed one of its rights, or that such harm was reasonably likely.
The court found that ZZ2 and Doornbult had not made this link. Their experts pointed out possible legal and environmental breaches, but did not clearly demonstrate how those breaches would harm the specific rights for which ZZ2 and Doornbult sought protection.
Alternative remedy finding also overturned
The Supreme Court of Appeal also disagreed with the High Court’s finding that ZZ2 and Doornbult had a satisfactory alternative remedy. The High Court had suggested that criminal charges could be laid against those responsible for breaking the law.
The municipality did not rely on that reasoning on appeal. Instead, it argued that ZZ2 should have used appeal procedures under SPLUMA and NEMA. The Supreme Court of Appeal rejected that argument in this case.
ZZ2 had complained to the municipality, and its lawyers had called on it to act to prevent harm and enforce the relevant laws. The municipality did not respond. The appeal court found that the remedies proposed by the municipality did not offer ZZ2 a satisfactory alternative.
Errors did not change the final order
Despite finding that the High Court made significant errors in its reasoning, the Supreme Court of Appeal held that those errors did not affect the correctness of the final order. Judge Bloem said that an appeal is about the lower court’s order, not its reasons.
“An appeal is not about the reasons given in a judgment, but about the actual order of the lower court,” he said. Because ZZ2 and Doornbult had still not shown that their rights had been injured or were reasonably likely to be, the appeal court found there was no reasonable prospect the appeal would succeed.
The application for leave to appeal was dismissed. ZZ2 and Doornbult were ordered to pay the municipality’s legal costs jointly and individually.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
