THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 308/2015

In the matter between:
EDUCATED RISK
INVESTMENTS 165 (PTY) LTD

First Appellant
FIFTH SEASON INVESTMENTS 99 (PTY) LTD   Second Appellant
LAGERWEY INVESTMENT
COMPANY (PTY) LTD

Third Appellant
NEL, NICOLAAS JACOBUS T/A
N J NEL DEVELOPMENTS

Fourth Appellant
and
EKURHULENI METROPOLITAN
MUNICIPALITY

First Respondent
LIDWALA CONSULTING ENGINEERS
(SA)(PTY) LTD

Second Respondent
REA DIRA REFUSE SERVICES CC

Third Respondent

Neutral citation: Educated Risk Investments 165 (Pty) Ltd v Ekurhuleni
Metropolitan Municipality (308/2105) [2016] ZASCA
67 (20 May 2016)

Coram:
LEWIS, THERON, WALLIS and MATHOPO JJA and
VICTOR AJA
Heard:
11 May 2016
Delivered: 20 May 2016
Summary: Town planning scheme – interpretation thereof – dwelling
house – what constitutes – local authority proposing to permit temporary
informal houses to be constructed on land zoned Residential 1 where
dwelling houses could be constructed without further consent – informal
houses satisfied the zoning requirements – scheme also empowered the
local authority to use land for purposes not in accordance with zoning
where it deemed it beneficial to the community or surrounding area.

ORDER

On appeal from:  Gauteng Provincial Division, Johannesburg (Mabasele
J, sitting as court of first instance)
The appeal is dismissed with costs.

JUDGMENT

Wallis JA (Lewis, Theron and Mathopo JJA and Victor AJA
concurring)
Introduction
[1] An informal settlement, known to its residents as Everest or
Gugulethu, is situated in Payneville Extension 3 on the outskirts of the
town of Springs. It is roughly triangular in shape and bounded on two
sides by a mine dump and a slimes dam and on the third by a railway line
and major road. It has no potable water supply, no refuse removal, no
sewage reticulation system, no electricity and no tarred roads. The slimes
dam gives off radon gas, a source of radiation, at levels that exceed
acceptable norms and pose a threat to the health of the residents. It is one
of 56 informal settlements in Gauteng that have been earmarked for
urgent attention. It is the responsibility of the first respondent, the
Ekurhuleni Metropolitan Municipality (Ekurhuleni), within whose area of
jurisdiction the settlement falls, to find means of addressing these
conditions. The primary source of its obligations is the right of access to
adequate housing that the residents of the settlement enjoy in terms of

s 26(1) of the Constitution and the obligation of the state in terms of
s 26(2) to achieve the progressive realisation of that right. Those
obligations are further reflected and given more detailed content in Part 4
of the Housing Act 107 of 1997.  But it is rightly also concerned with the
residents‟ right to dignity in terms of s 10 of the Constitution and their
right to an environment that is not harmful to their health and wellbeing
under s 24(a) of the Constitution.

[2] Ekurhuleni is the owner of another property, Payneville Extension
1, situated approximately a kilometre away along the boundary road,
which is some 63 hectares in extent and an approved township. As
originally approved it consisted of 756 erven, excluding parks and streets,
of which all bar four were designated as Residential 1 in terms of the
Springs Town Planning Scheme, 1996 (the Scheme). That zoning
permitted the erection of one dwelling house per erf.1 It also permitted the
sub-division of an erf provided that no portion created by such sub-
division would be less than „40% of the prevailing size of the surrounding
erven‟.2  On 8 February 2012 and in the exercise of powers vested in
Ekurhuleni under s 92 of the Town Planning and Townships Ordinance,
15 of 1986 (the Ordinance), the Acting Area Manager: City Development
approved the sub-division of a number of the erven in Payneville
Extension 1 to create an additional 363 erven. As there was no
amendment to the zoning under the Scheme these additional erven were
all zoned Residential 1.

1 Clause 19 of the Scheme.
2 Clause 19.3(i) of the Scheme.

[3] In June 2011 Ekurhuleni commenced the construction of sewage
and water reticulation services on Payneville Extension 1. As part of the
work it erected toilets on a number of erven. Its intention, once this work
was complete, was to permit a number of families resident in Payneville
Extension 3 to move to Payneville Extension 1 and to erect informal
dwellings on each of the residential erven for which a toilet had been
provided. This would enable remedial work to be done on Payneville
Extension 3 that would include the erection of basic houses, to which
those residents could then return. Furthermore, as funds became available
from various sources, Ekurhuleni intended to undertake the further
development of Payneville Extension 1 involving the surfacing of roads,
electrification and the construction of similar basic houses. But in the
meantime the people moved from Payneville Extension 3 would be living
in better and healthier circumstances, until their return to Payneville
Extension 3, or until they were allocated houses and elected to remain in
Payneville Extension 1.3

[4] Commendable as this may appear on the surface, the appellants,
three companies and an individual, Mr Nicolaas Nel, who was the
principal deponent on all their behalves, said that it was unlawful and
sought appropriate relief to prevent Ekurhuleni from proceeding to
implement their plans. They contended that the further sub-division of the
erven in Payneville Extension 1 was unlawful because it was not directed
at complying with the Scheme, but was a device to circumvent it and to
enable the establishment of an informal settlement on the property instead
of a residential development. They said that such use was inconsistent
with the zoning of the property as Residential 1 and amounted to a

3 The plan appears to have been developed in conformity with the concept of incremental housing.

rezoning by stealth. Furthermore they contended that it would be
unlawful for anyone to be permitted to occupy any part of Payneville
Extension 1 until there had been compliance with all of the conditions
attaching to the initial proclamation of the township and the approval of
the further sub-division. These conditions related to the various matters
that Ekhuruleni intended to leave until a later date as and when funding
becomes available.

[5] The reason for the appellants adopting this stance was that they
owned properties in an adjacent township, Strubenvale Extension 2. They
claimed, although this was disputed and was not in any way
substantiated, to have spent about R100 million on developing the
township for the purpose of providing formal housing aimed at the lower
and middle income groups. They said that since the erection of toilets on
Payneville Extension 3 they had had numerous complaints from
purchasers and persons who had previously expressed interest in
purchasing properties in Strubenvale Extension 2, and some of these had
indicated that they would not purchase properties there because of its
proximity to an informal settlement. The structures that had been built,
that is, the toilets, were described in the heads of argument as „unsightly
and objectionable‟ and were said to disfigure the area. It was submitted
that if this were permitted to continue it would derogate from the value of
their development and potentially cause them enormous losses.

[6] There was no via media between these two views. Ekurhuleni
wished to pursue its plans, in fulfilment of its obligations to the residents
of Payneville Extension 1, by allowing some of them to move to
Payneville Extension 1 to erect their homes there until Payneville
Extension 3 was rehabilitated and they could be provided with formal

housing. Resources were and are a problem and precluded it from
immediately formalising the development of either township, save in the
incremental manner that they planned. The appellants for their part did
not, and do not, want an informal settlement on the neighbouring
property. Their position was summarised in the heads of argument in the
following terms:
„… if the first respondent were moving the residents of Payneville Extension 3 into
brick and mortar houses it had already built on the property, and after due compliance
with the sub-division conditions, there would be no issue with the legality of
[Ekurhuleni‟s] conduct.‟
In other words the appellants raised no objection to the development of a
formal, fully serviced township with conventional brick and mortar
houses on Payneville Extension 1. Their objection was to it becoming,
albeit temporarily, an informal settlement lacking such services.

Litigation history
[7] The appellants launched an urgent application before the South
Gauteng High Court, Johannesburg (the High Court) on 7 November
2012. It sought an interim interdict to prevent Ekurhuleni from taking any
further steps to implement the sub-division approval or allowing any
person to occupy Payneville Extension 1 pending the outcome of the
claim for final relief. It indicated that it would seek the review and setting
aside of the decision to approve the sub-division and orders declaring the
erection of the toilets unlawful and directing Ekurhuleni to demolish
them. An interim order was granted by Lamont J on 5 December 2012
and extended from time to time thereafter. In the result Ekurhuleni‟s
plans have been blocked for more than three years.

[8] A number of additional affidavits were delivered to deal with
developments while the proceedings were pending. In an affidavit dated
17 October 2013 the appellants amended their notice of motion to seek
final relief in slightly amended terms. The order they sought read as
follows:
„6.
Reviewing and setting aside the first respondent's decisions to sub-divide the
property and to approve of the sub-division of the property as set out in the first
respondent's letter of approval dated 8 February 2012.
7.
Alternatively to 6, directing the first respondent to comply with all the
conditions applicable to the approval of the sub-division of the property as set out in
the first respondent's letter of approval dated 8 February 2012 and the annexures
thereto ("the conditions").
8.
Directing the first respondent:
8.1.
not to use the property without complying with the conditions;
8.2.
not to allow any person to occupy or use any erf or portion of the property
prior to compliance by the first respondent with the conditions;
8.3.
not to erect or allow any person to erect any structure on the property or any
portion thereof contrary to the provisions of the Springs Town Planning Scheme of
1996 and the conditions;
8.4.
not to use or allow any person to use the property or any portion thereof
contrary to the provisions of the Springs Town Planning Scheme of 1996.
9.
Declaring that the toilet structures erected by the first respondent on the
property are unlawful.
10.
Directing the first respondent to demolish and remove the toilet structures on
the property within 60 days of this order failing which the sheriff of this Court or his
deputy is authorised and directed to demolish and remove the structures at the cost of
the first respondent.‟

[9] The application was argued before Mabesele J early in 2014 and
dismissed on 6 May 2014. The learned judge granted leave to appeal to
this court on 25 March 2015. The reason for the delay in hearing the

application for leave to appeal does not appear from the papers. It was
unfortunate given the interests affected by that delay.

The sub-division of Payneville Extension 3
[10]    Although it appeared from the amended order that the primary
relief they sought related to the further sub-division of erven in
Payneville Extension 3, that appearance was misleading. The argument in
that regard depended upon the proposition that the effect of the sub-
division was to rezone the property from Residential 1 to either
temporary or special use. Assuming that to be so the appellants‟
complaint was twofold. First, no public notice was given of such a change
of use and no proper process preceded it. Second, as the further sub-
division was to enable the township to be used as an informal settlement
in contravention of the Scheme, under which it was zoned as Residential
1, it was effected for an ulterior purpose and was hence unlawful.

[11]  The central pillar for this argument was the proposition that the
proposed use of Payneville Extension 1 was inconsistent with its zoning
under the Scheme. The main issue in the appeal was therefore whether
Ekurhuleni‟s intention to permit occupation of the individual erven in
Payneville Extension 1 and the erection on each erf of a structure to
accommodate the family to whom such erf had been allocated would
contravene the zoning of the property. The structures to be erected, to
which I will hereafter refer as „informal housing‟, would be of a fairly
rudimentary nature, as is usually the case in informal settlements, and not
intended to be permanent. What must be determined is whether they
would contravene the zoning of Residential 1.

Zoning
[12] Clause 11.4 of the Scheme contains a table with a variety of use
zones and the uses to which properties falling in those zones can be put.
Properties zoned Residential 1 may be used for the erection of „dwelling
houses‟. That use does not require any further consent from the local
authority. A „dwelling house‟ is defined in clause 3 of the Scheme as:
„A single, free-standing dwelling unit and can include a “second dwelling unit”.‟
In turn a „dwelling unit‟ is defined as:
„An interconnected suite of rooms which does not include more than one kitchen,
designed for occupation and use by a single family and which may also include such
outbuildings and servants quarters as are ordinarily incidental thereto.‟
Although unlikely to be relevant in practical terms to the residents of
Payneville Extension 1, the definition of a „second dwelling unit‟ is as
follows:
„A dwelling unit on the same erf as a dwelling unit provided that the architecture of
both be the same and that the total coverage does not exceed the prescribed coverage
defined in Clause 21.‟

[13] There is no doubt that the type of building contemplated by the
appellants of conventional bricks and mortar construction, albeit small,
would constitute a dwelling unit as defined and therefore a dwelling
house for the purposes of the Scheme. So the 40 square metre RDP
houses referred to in the papers, with a bedroom, bathroom and combined
sitting room and kitchen, would qualify as dwelling houses and can be
built in an area zoned Residential 1. It follows that both in terms of the
original sub-division of Payneville Extension 1, with 752 Residential 1
erven, and in terms of the further sub-division, with a further 363 erven
and a total of 1115 erven, it would be permissible for Ekurhuleni to
establish a large number of modest sized homes in the township. The
appellants accept that if the homes were constructed of bricks and mortar

before people took occupation it could have no objection either to that
occurring or to the sub-division.

[14]    Ekurhuleni‟s stated intention was to rehouse families from
Payneville Extension 3 to individual erven in Payneville Extension 1, and
not to permit random and uncontrolled ingress to an extent greater than
that outlined above. That is not disputed. Accordingly the appellants‟
complaint was confined to an objection that the informal housing that
would be constructed, being informal in character, materials and design
and intended to be temporary, would be impermissible in a Residential 1
zone. They would not constitute dwelling houses as contemplated in the
Scheme.

[15]  There may be difficulty in reconciling the formal nature and
content of town planning schemes with the housing needs of so many
South Africans. Town planning schemes are generally speaking directed
at the medium to long-term development of an urban environment and
rarely, if ever, make express provision to accommodate the incremental
development of housing for the disadvantaged in our society as it
becomes increasingly urbanised.  One of the characteristics of apartheid
was chronic under-provision of housing for the vast majority of South
Africans in our major urban areas at a time when there was rapidly
increasing urbanisation. Its consequences were to be seen in the
mushrooming of informal settlements in and around urban areas that are
still part of our urban landscape. Conventional town planning schemes, of
which the one before us in this case is an example, generally have no
provisions specifically directed at this situation or the interplay between
addressing these social issues and formal development of the urban
environment.

[16]   A rigid interpretation of such schemes, viewing them through the
prism of a developed society in which these problems are largely absent,
is in my view unsuited to our circumstances. And we have guidance from
the Constitution itself that such an approach is inappropriate. Section
39(2) requires us when interpreting legislation to do so in a manner that
promotes the spirit, purport and objects of the Bill of Rights. That
demands that in construing the provisions of the Scheme that are in issue
in this case we must do so in the light of the right of our citizens to access
to adequate housing, dignity and a healthy environment.

[17] Informal housing of the type Ekurhuleni intended to permit in
Payneville Extension 1 consists of homes constructed of various
materials, in particular wood, corrugated iron and fibreglass sheeting, that
provide shelter to the occupants thereof. I can see no reason why these
should not be described as dwelling houses, a compound expression that
incorporates a measure of tautology. The explanation for this compound
use may well be found in its definition in the Concise Oxford English
Dictionary,4 which says that it is a legal usage referring to:
„a house used as a residence rather than for business.‟
The need to combine the two words to indicate that a residence is
intended appears to flow from the fact that in English usage the word
„house‟ may encompass something other than, or more than, a purely
residential building. It includes some institutions, and a number of
buildings, which, while having some residential element, such as a police
station, a nursing home and a college for the provision of vocational

4 Concise Oxford English Dictionary (12 ed, 2011) at 446 sv „dwelling house‟.

training, are used for other purposes. In various contexts the courts have
regarded buildings of that type as houses or dwellings.5

[18] In their ordinary sense as reflected in dictionary definitions,
„house‟ and „dwelling‟ tend to overlap. Thus in the Shorter Oxford
English Dictionary,6 the first definition of a „house‟ is that it is:
„A building for human habitation; a dwelling, a home;‟
and the corresponding definition of a „dwelling‟ is:
„A place of residence; a habitation, a house.‟
In combination it is said that a „dwelling house‟ is:
„used as a residence, not for business purposes‟
and a „dwelling place‟ is:
„a place of residence, an abode, a house‟.

[19] Little point would be served by citing a number of definitions, as if
the problem of interpreting this expression in the Scheme could be
resolved by weight of numbers. As with all exercises in interpretation the
words must be taken as the starting point and construed in the light of
their context and purpose and the dictates of the Constitution.7 The
purpose of looking at dictionary meanings is to demonstrate, as a starting
point for the exercise, that the type of informal housing that is
contemplated can properly be regarded as „dwelling houses‟ as that

5 By way of examples, the chapter house of a cathedral or monastery is a place for the holding of
meetings, not a place of residence, and the House of Bishops is a section of the General Synod of the
Anglican Church. Perhaps the best-known reference is to the Houses of Parliament consisting of the
lower house – the House of Commons – and the Upper House – the House of Lords. As to the cases see
Stroud’s Judicial Dictionary of Words and Phrases (7 ed, 2006) Vol 1, pp 796-800, sv „dwelling-
house‟. These cases illustrate that context is central to interpretation. That explains why in Chelsea
Yacht and Boat Co Ltd v Pope [2001] 2 All ER 409 (CA) a houseboat leased under a residential lease
was held to be a chattel and not a dwelling-house, while in Nicholls v Wimbledon Valuation Office
Agency [1995] R V R 171 a floating home was held to be a dwelling.
6 The Shorter Oxford English Dictionary on Historical Principles (6 ed, 2007) Vol 1 at 1285 sv „house‟
and at 783 sv „dwelling‟.
7 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
(SCA) para 18; Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2013]
ZASCA 176; 2014 (2) SA 494 (SCA) para 12.

expression is commonly understood. The next step in the process is to see
whether the definitions quoted above affect the meaning of the expression
either by expanding or by confining it.

[20] According to the definition of „dwelling house‟ in the Scheme it
must be a free-standing unit. That implies a single building or structure
and reinforces the notion, flowing from the words „dwelling house‟, that
residential premises such as maisonettes, flats or townhouse complexes
may not be constructed in a Residential 1 use zone.8 The informal houses
that Ekurhuleni contemplates satisfy this criterion. They also satisfy the
requirement for a dwelling unit that they will consist of „an
interconnected suite of rooms which does not include more than one
kitchen, designed for occupation and use by a single family‟. Many
informal houses will consist of two rooms – one bedroom and one where
the family eats, cooks and relaxes. That is little more than the
beneficiaries of RDP houses will have.9 Some will be a little larger and
may have one or two more rooms. Doors and windows will be installed.
A few will be single rooms, but I do not think that the reference to a
„suite of rooms‟ in the definition would exclude these. After all a large
open plan house in accordance with a modern design would surely be
recognised as a dwelling house notwithstanding its open plan design.

[21] Both on the ordinary meaning of dwelling house, and on an
application of the definitions in the Scheme, I see nothing that would
preclude informal housing from being „dwelling houses‟ as defined in the

8 See for example Cliffside Flats (Pty) Ltd v Bantry Rocks (Pty) Ltd 1944 AD 106 at 120 and S v Jewell
and Another 1965 (1) SA 863 (N).
9 Ekurhuleni proposes to build houses that are 40 square metres in extent, with one bedroom, one
bathroom and one open plan room to serve as a lounge and kitchen.

Scheme. The suggestion in the heads of argument that this expression
would only encompass structures built of bricks and mortar was not
pursued with any vigour in argument and counsel accepted that dwelling
houses might be built of other materials. Many informal houses are built
of wood and corrugated iron, as were many houses in our major cities in
the early days of urban development in this country.10 Modern materials
such as fibreglass sheeting increase the range of available materials.

[22] It was argued that in referring to „dwelling houses‟ the Scheme
contemplated structures having a degree of permanence as opposed to
informal housing. There is undoubtedly force in this contention, which
highlights the point made earlier that the Scheme is broadly directed at
situations of medium to long-term development of urban areas rather than
dealing with the massive housing problems that confront the poorest in
our country. But against it is the fact that the definition itself does not
specify that the dwelling house must be a permanent structure or a
building. Nor does it specify that the dwelling house must be immovable.
Park homes are movable and not made of conventional building materials
such as bricks, but there is no reason to think that they may not be
dwelling houses and it is a matter of common knowledge that both in this
country and elsewhere they are used for that purpose.11

[23] In my view neither the ordinary meaning of the expression
„dwelling houses‟, nor the definition sections of the Scheme exclude from

10 In Transvaal Consolidated Land and Exploration Co Ltd v Black 1929 AD 454 at 461 Wessels JA
referred to the fact that „in so many parts of Johannesburg‟ houses were constructed of these materials
and contrasted it with the requirement that house built in Parktown were required to be built of either
brick or stone, although they would have corrugated iron roofs.
11 In Makins v Elson [1977] 1 WLR 221 a jacked-up caravan, connected to water, electricity and
telephone was held to be a dwelling-house. The Scheme contains a definition of a „mobile dwelling
unit‟ but that is only relevant in relation to temporary use in caravan parks and does not bear directly on
the problem at hand.

the ambit of that expression informal housing consisting of individual
homes of a temporary nature and constructed of a variety of materials,
such as wood, fibreglass or corrugated iron. Any doubt in that regard is
dispelled by applying the constitutionally mandated rule of interpretation
in s 39(2) of the Constitution. To disqualify from our understanding of
dwelling houses the structures, sometimes sturdy and complex and
sometimes rudimentary, in which a vast number of the poorest citizens of
this country are compelled by their circumstances to live, is not in my
view in accordance with the spirit, purport and objects of the Bill of
Rights and particularly those provisions of the Bill of Rights identified at
the outset of this judgment.

[24] Once that conclusion is reached the foundation of the appellants‟
argument is destroyed. Payneville Extension 1 is a township that has been
divided into erven and zoned Residential 1 under the Scheme. It is
therefore permissible in terms of the Scheme for a single dwelling house
to be erected on each erf in the township.12 That is what the Scheme
permits and that is what Ekurhuleni proposes to permit.

Non-fulfilment of conditions
[25] As a second string to their bow the appellants advanced an
argument that it would be unlawful for Ekurhuleni to permit people to
occupy erven in Payneville Extension 1 until all the conditions attached
to the original approval of the township and the further sub-division

12 The definition of „erf‟ in the Scheme includes any erf shown on a plan approved in terms of the Land
Survey Act 8 of 1997. An approved Surveyor General‟s diagram forms part of the papers in respect of
the township layout when originally approved. The papers are silent on whether such a diagram exists
in respect of the layout following upon the further sub-division, but no point has been made of the
absence of such a diagram, which is in any event easily remediable.

thereof had been fulfilled. For this argument reliance was placed upon
s 115(1)(a) of the Ordinance. That provides:
„Where the Administrator or an authorised local authority has, in terms of the
provisions of any law, imposed a condition relating to a township or an erf in a
township:
(a) the local authority within whose area of jurisdiction the township is situated
shall observe the condition …‟

[26]  When Payneville Extension 1 was approved the approval was
made subject to a number of conditions of which clauses 4 and 6 were
referred to in argument. The former clause obliged the developer to
construct and maintain the streets in the township until that task was
taken over by the council and the latter required the township developer
to fulfil the obligations in respect of the provision of water, electricity and
sanitary services and the installation of systems therefor as agreed
between it and the council. The references to „the council‟ in these
conditions were references to the then Springs City Council to which
Ekurhuleni is the successor. Furthermore Ekurhuleni has taken the place
of the original developer and is therefore the party obliged to fulfil these
conditions.

[27] In addition to the original conditions imposed in relation to the
development of Payneville Extension 1 as a township, when the further
sub-division was undertaken a number of additional conditions were
imposed, to which the approval was made subject. These related to the
provision of various services, such as electricity and water; the provision
of roads and steps for dealing with stormwater runoff; and conditions
dealing with dolomite risk management.

[28] While Ekurhuleni has provided water reticulation and sewerage
disposal in Payneville Extension 1, it has not formed or surfaced the
roads and sidewalks, including taxi ranks, nor has it provided an
electricity supply or street lighting. Its approach is to provide for these
matters incrementally as and when finance becomes available. In the
meantime it said that those who move to Payneville Extension 1 would at
least be better off than if they stayed in Payneville Extension 3. The
appellants, for their part, argued that this approach was impermissible.
They contended that before anyone could be permitted to take up
residence in Payneville Extension 1 all of these conditions had to be
fulfilled.

[29] The appellants‟ argument wrongly conflates the obligations of
Ekurhuleni when it develops the township of Payneville Extension 1 and
disposes of lots in that township, and its present entitlement to use the
property as it stands before such development takes place. Although
permission to lay out and develop a township on the property known as
Payneville Extension 1 has been granted and the township has been
declared to be an approved township, Ekurhuleni is not under any
obligation to proceed with that development. It is perfectly entitled to
allow the land to lie idle, or to change its intentions and propose a
different development entirely, or to postpone development until the
necessary funds are available. It is not in the meantime precluded from
using the land provided it does so in accordance with any applicable town
planning scheme and the title conditions attaching to the property.

[30] It follows that the appellants‟ argument is misconceived. As
matters stand at present, Payneville Extension 1 is a single property
almost entirely zoned Residential 1, in respect of which there is an

approved Surveyor-General‟s diagram showing its potential division into
a number of erven. Under the Scheme each of those erven may be used
for a single dwelling house to be occupied by a single family. For the
reasons set out earlier in the judgment this use is in conformity with the
Scheme. It is consistent with what will happen when the township is
established, but it does not involve the taking of steps towards that
establishment and the transfer in due course of the individual erven to
purchasers. Nor does it involve any breach of the prohibition in section
67(1) of the Ordinance on concluding contracts for the sale, exchange,
alienation or disposal of the erven in the township or the grant of an
option to that effect. Before any of that can be done the conditions upon
which the township was declared an approved township must be met, but
that stage has not yet been reached. For the present Ekurhuleni proposes
to do nothing more than use its own property in a manner that conforms
to the Scheme.

Requirements of the Council for Geoscience

[31] While this issue may strictly have been dealt with above, together
with the other conditions imposed upon the development of the township
and its further sub-division, it warrants a brief separate mention in view
of the fact that it bears upon the health, safety and well-being of potential
residents of Payneville Extension 1. The township is underlain, as is
much of the East Rand, by dolomite. In order to satisfy the requirements
for the establishment of a township on such land the Council for
Geoscience required a dolomite stability investigation to be undertaken.
Its purpose was to assess the stability of the site with respect to its
potential for sinkholes to emerge and to comment on water management.
A firm of engineering geologists, M J van der Walt Engineering
Geologists CC, conducted such an investigation and its report formed part

of the papers. In approving the further sub-division of the township the
Council for Geoscience required Ekurhuleni to comply with the
recommendations in the report. That condition was confirmed by
Ekurhuleni.

[32] The appellants argued that there was no compliance with the Van
der Walt report‟s recommendations. They focussed in particular on the
foundations for the toilets that had been erected on the site in preparation
for the proposed new residents. These were about one metre square. The
appellants claimed that they were required to have reinforced concrete
raft foundations designed to span a five metre loss of support. In doing so
they relied upon a statement at the end of the report that the foundation
design that should be implemented should make provision for
foundations of that type. They urged that in the interests of the safety of
those who would come to live on the site such foundations needed to be
provided.

[33] A proper reading of the report revealed that this was wholly
incorrect. The Van der Walt report divided the township into two sections
referred to as Zone A and Zone B. The recommendation in respect of
reinforced concrete raft foundations related only to Zone B, where there
was a medium inherent risk of the development of large sinkholes. In
Zone A the report concluded that there was „little chance for erosive
forces to develop‟. It accordingly concluded that in this zone only basic
water precautionary measures needed to be implemented for development
to proceed.

[34] The perceived risk was therefore confined to Zone B. Ekurhuleni
said in its affidavits that it did not intend to permit anyone to reside in this

portion of the township and undertook to demolish those toilets that had
been erected in that zone. It must be accepted that they will comply with
this undertaking and with other undertakings contained in the papers.
Among these was the provision of an attenuation dam to prevent
stormwater from the township posing any risk to adjacent properties in
Strubenvale Extension 2. The point was accordingly raised on an
incorrect appreciation of the facts and is without merit.

A hearing
[35] Although not specifically raised in the affidavits the appellants
argued that Ekurhuleni‟s proposal was of such a nature as to impose an
obligation to conduct hearings and undertake a public process in which
all affected parties would be able to have input, both for and against the
proposal. I do not think this argument was open to the appellants at this
stage. The only reference in the papers to a right to a hearing and a public
process was in the context of its initial contention that the implementation
of the proposal amounted to an amendment by stealth of the zoning of
Payneville Extension 1. Once that was shown to be without foundation it
was not permissible to raise it in a wholly different context where
Ekurhuleni had not had any opportunity to deal with the matter on the
facts. I am particularly concerned in that regard by the fact that the tender
for the construction of the toilets was let in 2010 and an interview with a
ward councillor described the project as one that had been in the pipeline
for a number of years. It may well be that had the point been raised earlier
and directly that there would have been evidence on the extent of public
participation in the process leading up to the local authority adopting this
approach to the problems of Payneville Extension 3.

Conclusion

[36] The allegations by the appellants that Ekhuruleni has acted and
intended to act in an unlawful manner have not been substantiated. That
alone would serve to dispose of the appeal. However, even if in
implementing the proposal there had been in some respect a departure
from the provisions of the Scheme, it would not in my view have been
unlawful. The reason is that clause 32 of the Scheme expressly authorises
the local authority to depart from it and to use any property in any use
zone for a purpose empowered by law and which it deems beneficial to
the community or the surrounding area. The clause reads:
„Nothing in this Scheme shall be regarded as prohibiting the Local Authority from
erecting, maintaining and/or maintaining and/ or using any building or property in any
use zone for any purpose empowered by it by virtue of any law, and which it deems to
be beneficial to the community or surrounding areas.‟

[37] No party referred us to this provision, but it appears to be of prime
importance in considering this dispute. I can see no reason why it should
not be given effect on its terms. Provided it is satisfied that it will be
beneficial to the community to do so, it empowers the local authority to
authorise the use of property in a manner other than that provided in the
Scheme. That is appropriate given that the local authority is the primary
planning authority in regard to local planning.13 Counsel was unable to
suggest any other interpretation of this clause. So, even had the
implementation of Ekurhuleni‟s plans for Payneville Extension 1 in some
respect involved a departure from the use provisions of the Scheme, that
departure was one that it was entitled to authorise. For that reason also the
appeal must fail.

[38] In the result the appeal is dismissed with costs.

13 Schedule 4, Part B of the Constitution.

JUSTICE M J D WALLIS
JUDGE OF APPEAL.

Appearances

For appellants:
M van R Potgieter SC (with him D Watson)
Instructed by:
Smit Sewgoolam Incorporated, Johannesburg

McIntyre & Van der Post, Bloemfontein
For first respondent:
J C Uys (with him E Sithole)
Instructed by:
Matsemela Krauses & Ngubeni Inc, Johannesburg
Lovius-Block, Bloemfontein.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
20 May 2016
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.
Educated Risk Investments 165 (Pty) Ltd v Ekurhuleni Metropolitan
Municipality
The SCA today dismissed an appeal by the owners of a township in
Springs against the refusal of an interdict aimed at stopping the
Ekurhuleni Municipality allowing an adjacent property to be occupied as
an informal settlement.
An informal settlement, known to its residents as Everest or
Gugulethu, is situated in Payneville Extension 3 on the outskirts of the
town of Springs. It is roughly triangular in shape and bounded on two
sides by a mine dump and a slimes dam and on the third by a railway line
and major road. It has no potable water supply, no refuse removal, no
sewage reticulation system, no electricity and no tarred roads. The slimes
dam gives off radon gas, a source of radiation, at levels that exceed
acceptable norms and pose a threat to the health of the residents. It is one
of 56 informal settlements in Gauteng that have been earmarked for
urgent attention. It is the responsibility of the Ekurhuleni Metropolitan
Municipality (Ekurhuleni), within whose area of jurisdiction the
settlement falls, to find means of addressing these conditions.

Ekurhuleni proposes to allow some of the residents from
Payneville Extension 3 to move to erven on a nearby township owned by
it, called Payneville Extension 1. It has provided water and sewerage on
that property but is not yet in a position to complete the development by
providing roads, lighting and other facilities. Those who move to
Payneveille Extension 1 will be permitted to erect informal housing on
the erven allocated to them but this will be temporary until the upgrading
of the two townships occurs. The appellants, who own an adjacent
township, complained that this was in conflict with the Town Planning
Scheme in that informal housing was not permitted in a Residential 1
Zone, where it was only permissible to erect dwelling houses.
The SCA held that informal housing constituted dwelling houses
both in its ordinary sense and as defined in the town planning scheme. It
also held that the local authority was not obliged to comply with all the
conditions of approval of the township or the sub-divisional conditions
before permitting people to live there. Lastly it pointed out that the local
authority was empowered to relax the use provisions of the scheme where
in its opinion it was beneficial to the community or the area for it to do
so. The appeal was dismissed with costs.