Emilel Investments (Pty) Ltd v Maria Gioconda Linda Giorgia Silvestri and Others

The appellant, Emilel Investments (Pty) Ltd, operated the Gianluca Vialli Soccer Centre on the grounds of Sea Point High School in Cape Town, on erven 718 and 1445 Sea Point. The property was owned by the Western Cape Provincial Government and had been used as a school for over 126 years. The centre consisted of two five-a-side astroturf soccer pitches with floodlights and a clubhouse. The governing body of the school leased the property to Victory Tickets, which sub-let it to the appellant for ten years with two renewal options, at an annual rental of R100,000. The appellant redeveloped the property at a cost of approximately R2 million. From June 2010, corporate soccer league games commenced and the facilities were hired out for five-a-side football events. The property was zoned general residential under the City of Cape Town Zoning Scheme Regulations promulgated under the Land Use Planning Ordinance 15 of 1985 (LUPO). The first to third respondents, owners of properties adjoining the school, applied for an interdict on the grounds that the use of the property breached zoning regulations and constituted a common law nuisance.

• Whether the operation of a commercial five-a-side soccer centre on school property zoned general residential constituted a breach of the City of Cape Town Zoning Scheme Regulations
• Whether the use of the property fell within the definition of 'place of instruction' which required the City's consent as a consent use
• Whether the historical use of the property as a school conferred zoning rights that extended to the appellant's commercial soccer operations
• Whether the court should suspend the operation of an interdict prohibiting unlawful use of property
• Whether the applicants' delay in bringing the application justified depriving them of costs despite their success

The appeal was dismissed with costs. The cross-appeal was upheld with costs. The order of the High Court was replaced with an order declaring the operation of the soccer centre and craft market unlawful, directing the first and fourth respondents to cease the activities forthwith, and ordering them to pay the applicants' costs including the cost of two counsel and qualifying fees.

The binding legal principle established is that the use of property zoned general residential for commercial purposes, such as operating a five-a-side soccer centre for hire and spectating, contravenes zoning scheme regulations where such use is not a permitted use and the required consent has not been obtained. A 'place of instruction' in sport, which requires consent as a consent use in a general residential zone, means a facility where the primary purpose is instruction rather than participation or spectating by the public. Accrued zoning rights under previous regulations survive regulatory changes but are limited to the specific use that existed under the previous scheme and do not extend to new commercial users. The unlawful use of property for part of the day cannot be rendered lawful by the lawful use of the same property at other times. Section 39(2)(a) of LUPO prohibits any person from contravening zoning scheme regulations, and this prohibition binds all users including those operating under agreements with entities that have accrued rights.

The court made several non-binding observations: (1) It noted that the tenth respondent (the property owner) indicated it would only apply for rezoning to the extent necessary for educational and school-related activities, and could not be compelled to apply for rezoning. (2) The court observed that the fact that some members of the public supported the soccer centre could not justify the continuation of an illegal state of affairs. (3) The court commented that a court will seldom interfere on appeal with costs orders of the court below, but interference was warranted in this case due to the incorrect exercise of discretion. (4) The court noted that before launching the application, the applicants had to ascertain the identity of the appellant, ownership of the property, relevant zoning provisions and different legal interests of various organs of state, which explained the time taken before launching proceedings. (5) The court observed that the South African Schools Act does not release schools from compliance with other laws, citing Die Ferdinand Postma Hoërskool v Die Stadsraad van Potchefstroom & others [1999] 3 All SA 623 (T).

This case is significant in South African town planning law as it clarifies the application of zoning scheme regulations under LUPO and emphasizes strict compliance with land use restrictions. It establishes that: (1) commercial use of property must comply with applicable zoning regulations regardless of the historical or primary use of the property; (2) the definition of 'place of instruction' requires that the primary purpose be instruction rather than commercial participation or spectating; (3) accrued zoning rights are narrowly construed and do not automatically extend to new users or commercial activities; (4) the use of property by a particular entity for unlawful purposes cannot be excused by the lawful use of the same property at other times; and (5) other legislation permitting use of school facilities does not override zoning regulations. The judgment reinforces the principle that zoning regulations are binding on all persons and that courts will not readily suspend interdicts prohibiting unlawful land use absent proper justification.