City of Johannesburg v Cantina Tequila

The respondents operated a restaurant and bar business on property zoned 'Special' in Sandton, situated at Unit 13 Valley View Centre, Campbell Road, Fourways (Erf 1918 Witkoppen Extension 85 Township). The property was subject to the Sandton Town Planning Scheme, and specifically the amendment scheme 02-1649, which listed primary use rights including: offices, showrooms, motor showrooms, public garages, hotels, and specialized extensive retail facilities. The respondents had also erected a corrugated iron structure at the entrance to and enclosing the outside patio of the restaurant without the municipality's written approval. The City of Johannesburg brought an application to interdict the respondents from conducting the restaurant and bar business on the basis that it contravened the zoning scheme, and to order demolition of the unauthorized structure. The respondents contended that because hotels (which were a permitted primary use) typically have restaurants and bars, a standalone restaurant and bar should also be permitted. They also argued that the municipality had consented to the restaurant use based on a letter responding to a query.

• Whether the Sandton Town Planning Scheme, properly interpreted, permits the operation of a standalone restaurant and bar business on property zoned 'Special' where 'hotels' are listed as a primary use right but 'restaurants' and 'places of refreshment' are not
• Whether ancillary uses that may be part of a permitted primary use (such as a restaurant being part of a hotel) can be read into the list of primary rights as standalone uses
• Whether the municipality's response to a query about permissible uses constituted formal consent for the operation of a restaurant business
• Whether the corrugated iron structure erected without approval constituted a 'building' requiring written approval under the National Building Regulations and Building Standards Act 103 of 1977

The appeal succeeded with costs including the costs of two counsel. The high court's order was set aside. The first and second respondents were interdicted and restrained from using the property for the purpose of a restaurant or bar. The respondents were ordered to forthwith cause the demolition of the corrugated iron structure. Failing compliance within one week, the sheriff was authorized to attend to the demolition and removal of rubble. The respondents were ordered to pay the costs of demolition and removal of rubble, jointly and severally, and the costs of the application, jointly and severally.

Where a town planning scheme lists specific primary use rights that a property owner may exercise without consent, those rights must be interpreted according to their plain and unambiguous language. An ancillary use that may legitimately accompany a permitted primary use (such as a restaurant being part of a hotel) does not entitle a property owner to conduct that ancillary use as a standalone operation. A court may not, under the guise of avoiding absurdity, ignore clear legislative language or improperly substitute its will for that of the lawmaker simply because of any perceived harshness or lack of wisdom. A court is entitled to find an interpretation absurd only 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. The conscious exclusion of a defined use (such as 'place of refreshment' which includes restaurants) from a list of permitted uses indicates the lawmaker's intention to prohibit that use. A non-binding response to a query about permissible uses does not constitute formal consent or approval for a land use, particularly where the municipality expressly states it is not bound by the information provided.

The court observed that although it may appear odd that primary rights include hotels but not restaurants and bars, this omission is not so glaring or out of kilter with the purpose of the scheme that it can be said 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. The court also noted that at best for the respondents, the municipality gave them a non-binding opinion on their prospects for approval of a restaurant - nothing more.

This case is significant in South African town planning law as it establishes important principles regarding the strict interpretation of town planning schemes and zoning rights. It clarifies that primary use rights in zoning schemes must be interpreted according to their plain language and that ancillary uses associated with a permitted primary use cannot automatically be extended to standalone operations. The judgment reinforces the principle that courts must not substitute their own policy preferences for those of the lawmaker under the guise of avoiding absurdity. It also clarifies the distinction between non-binding opinions provided by municipalities in response to queries and formal consent or approval for land uses. The case provides guidance on when a court may depart from the plain language of a statutory provision to avoid absurdity - only when an omission is so glaring or inconsistent with the overall purpose that it could not have been contemplated.