THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  795/13

In the matter between:

TRUMPER TRADING 166 CC

Appellant

and

KOUGA MUNICIPALITY

Respondent

Neutral citation: Trumper Trading v Kouga Municipality (795/13) [2015]
ZASCA 18 (18 March 2015)

Coram:

Maya, Cachalia, Saldulker JJA and Van Der Merwe and Mayat
AJJA

Heard:

17 February 2015

Delivered:

18 March 2015

Summary: Land Use Planning Ordinance 15 of 1985 – whether municipal zoning
scheme regulations permit the operation of a bottle store from premises zoned as
„special business‟ without the municipality‟s further consent.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: Eastern Cape High Court, Grahamstown (Schoeman and Roberson
JJ sitting as court of appeal):
The appeal is dismissed with costs.
___________________________________________________________
JUDGMENT
__________________________________________________________________
MAYA JA (CACHALIA, SALDULKER JJA, and VAN DER MERWE and MAYAT
AJJA concurring):

[1] The central issue in this appeal is whether the Jeffrey‟s Bay Municipality:
Zoning Scheme Regulations (the regulations),1 permit the operation of a bottle store
from premises zoned as „special premises‟ without the special consent of the
respondent (the municipality). The question arose in an appeal brought before the
Eastern Cape High Court, Grahamstown (Schoeman and Roberson JJ) against an
interdict granted by the magistrate, Humansdorp (Mr FJ Van Zyl) which prohibited the
appellant from conducting the business of a bottle store from its premises. The high
court held that municipal consent is necessary. This appeal, brought with the leave of
this court, challenges that decision.
[2] The appellant is a close corporation and sole proprietor of a bottle store which it
operates on Erf 36, Paradise Beach, Jeffrey‟s Bay (the premises) in terms of a liquor
licence granted to it by the Eastern Cape Liquor Board in November 2008.2 The

1 Promulgated in terms of s 8 of the Land Use Planning Ordinance 15 of 1985 (LUPO), and published in GN 92, GG 403,
28 May 1999.
2  Reference Number. 13836.

regulations are applicable to the zoning and land use rights of the premises. In October
2008, the appellant‟s former member applied to the respondent for special consent for
the use of the premises and the buildings thereon as a bottle store, supermarket and
coffee shop.

[3] The municipality refused the application „due to the objections received from
surrounding property owners‟. As it turned out, the appellant had in the meantime
commenced the business of a bottle store without municipal consent and was selling
liquor from the premises. When this  came to the municipality‟s attention, it directed
the appellant to cease operating the bottle store. However, the appellant continued to
trade whilst making further unsuccesful attempts until late in 2010, to obtain the
consent. On 16 March 2011 the municipality instituted proceedings in the magistrate‟s
court to interdict the appellant from trading as a bottle store without the necessary
consent.

[4] The municipality‟s application was successful, as was its opposition to the
subsequent appeal in the high court. There, the appellant argued, inter alia, that on a
proper interpretation of the relevant zoning scheme regulations, the zoning of the
premises as a „special business‟ brought the bottle store within the ambit of „primary
use‟ businesses which are conducted without the municipality‟s special consent. This
was so, it contended, because this class of businesses included restaurants and licensed
hotels which are more offensive than a bottle store as they allow the consumption of
liquor on their premises. It would thus make no sense to require an off-sales bottle
store, and not these other businesses, to obtain special consent to trade. And socio-
economic factors, such as the safety and welfare of the community were irrelevant
considerations as they were taken into account when the initial zoning detemination

was made3 and when the liquor licence application was considered. As indicated
above, none of these submissions found favour in the high court, hence this appeal.

[5] On appeal before us, the appellant‟s case narrowed to one ground. It contends
that by virtue of the zoning applicable to the appellant‟s premises as „special business‟
in the regulations no consent is required to conduct the business of a bottle store. And
because „special business‟ is defined to include „shops‟ as well as „similar uses‟ a
bottle store is a similar use as contemplated in the definition. The appellant thus did
not need the municipality‟s consent to operate the bottle store for which it has a valid
liquor licence, so went the argument.

[6] The municipality‟s power to regulate land use planning within the Jeffrey‟s Bay
area of jurisdiction derives from the Land Use Planning Ordinance 15 of 1985
(LUPO), in terms of which the regulations are promulgated. According to s 11 of
LUPO, the general purpose of a zoning scheme (and the regulations) is to determine
and provide for control over land use rights and over the utilisation of land in the area
of jurisdiction of a local authority. Section 39(1) obliges local authorities to comply
with and enforce compliance with LUPO itself and the provisions incorporated in a
zoning scheme in terms thereof.  In terms of s 39(2), no person may contravene or fail
to comply with the provisions incorporated in a zoning scheme or conditions imposed
in terms of LUPO. And s 46(1) makes such contravention or failure to comply an
offence.

3 In terms of s 36 of LUPO which, in addition to the safety and welfare of the community concerned, requires the
consideration of the preservation of the natural and developed environment concerned or the effect of the application on
existing rights concerned when zoning and subdivision applications are determined.

[7] The zoning, ie reservation of an erf for a specific use or uses, „special business‟,
which is applicable to the premises, is defined in the regulations as meaning „a site or
building or structure on or in which business is conducted and includes shops, offices,4
financial institutions or restaurants or sites, buildings or structures for similar uses, but
does not include places of assembly,5 institutions,6 public garages,7 industries8 or
noxious uses‟.9

[8] Part III of the regulations incorporates Table A which indicates the purpose for
which land may be used in the various zones10 that it lists. According to the table, land
and buildings thereon either have „primary use‟,„secondary use‟ or „consent use‟.  And
a „special business‟ zoning has three use rights: (a) primary use which includes special

4 Defined as „a room or set of rooms or a building utilised for the performance of an administrative, professional, financial or
similar function but excludes a shop‟.
5 Defined as „a site or building or portion of a site or building utilised or intended to be utilised for gatherings, entertainment,
recreation, sports or exhibitions, and includes a billiard salon and an amusement arcade and also includes a training centre
for more than five persons at a time but does not include a place of worship, an institution, a pub/tavern, place of instruction,
a private open space or a restaurant‟.
6 Defined as „a building or portion of a building utilised or intended to be utilised as a social or welfare institution including
the administration thereof and includes a nursing home or clinic, whether private or public, but does not include any
hospital, sanitarium, clinic or institution for the treatment of infectious or contagious diseases or for the detention or
treatment of persons who are mentally handicapped or ill‟.
7 Defined as „a building, including is the site, for an undertaking which offers a complete range of services for motor
vehicles, including panel beating, blacksmithing, spray painting, body building and a shop‟.
8 Defined as „the use of land as a factory within the meaning of relevant other legislation controlling the use of land for a
factory which may include other activities incidental and subordinate to the main use such as offices, caretakers
accommodation and employee restaurants, but does not include a noxious industry or activity‟.
9 In terms of the regulations „noxious use‟ means  „(a) an offensive use or any other use which constitutes a nuisance as
envisaged in regulations promulgated from time to time in terms of section 33 and 34 of the Health Act, 1977 (Act 63 of
1977), read with paragraphs (f) and (g) of the definition of “nuisance” in section 1 of the said Act; (b) the operation of a
scheduled process, as defined in s 1 of the Air Pollution Prevention Act, 1965 (Act 45 of 1965); and (c) the manufacture of
explosives, as defined in section 1 of the Explosives Act, 1956 (Act 26 of 1956)‟.
10 „Zone‟ is defined in s 2 of the regulations as meaning an area consisting of one or more erven for which a specific land use
or uses is demarcated on the scheme map kept by the Council  which indicates the zoning of each erf in the scheme area.

business, warehouse,11 service station12 and licensed hotel;13 (b) secondary use, which
includes general residential buildings,14 place of assembly, and place of instruction,15
(irrelevant for present purposes); and (c) consent use which includes all uses other than
those mentioned in (a) and (b), excluding noxious uses. Under the „special business‟
zoning, the municipality‟s special consent is required for all uses other than those
categorised under primary uses.

[9] Of immediate relevance, the regulations define „bottle store‟ as „a shop in which
mainly alcoholic beverages are sold in the retail trade and includes an off-sales facility
which is under the same management as a licensed hotel‟. „Shop‟, on the other hand, is
defined as „a site or building, or portion of a site or building, utilised or intended to be
utilised for the operation of a retail business, and includes a licensed restaurant16 and a
workshop17 on the same premises, which is connected and is incidental and
subordinate to the retail business, but does not include a service or filling station, bottle
store, pub/tavern,18 public garage or industry‟. Notably, a bottle store is expressly
excluded from the definition of a shop.

11 Defined as „a building used for the storage of goods, or as a depot for a wholesale business, or as a place for the storage of
commercial material, in so far as such a building does not fall within the scope of a shop‟.
12 Defined as „a building in which motor vehicles, fuel and accessories are sold and in which repairs may be effected and
includes a shop, but excludes panel beating, spray painting, body building and blacksmithing‟.
13 Defined as „a purpose built building in which lodging, meals and beverages are provided, which is readily accessible to
the public and complies with the requirements of a hotel in terms of the Hotels Act, 1965 (Act 70 of 1965), but does not
include an off-sales facility or bottle store‟.
14 Define as „a building which consists of a number of dwelling units or rooms which can be let or owned separately and
includes a block of flats, an accommodation establishment, a group house, a town house, a retirement village and a home for
aged persons, but does not include any hostel, institution or dwelling house‟.
15 Defined as „a school, college, technical institute, academy, lecture hall, cloister, public library, art gallery, museum,
gymnasium, crèche, or any other similar use regarded by the Council as of an educational nature, but excludes a university,
reformatory, industrial school or a school for the mentally handicapped‟.
16 Defined as a shop in which mainly prepared food and refreshments are sold and served and which is licensed in terms of
the Liquor Act, 1977 (Act 87 of 1977), as amended from time to time.
17 Defined as „a building or portion of a building which does not exceed 200 m2 in nett floor area and in which any one or
more of the activities referred to in definition of “industry” is or are conducted, but does not include a public garage, service
station and noxious use‟.
18 Defined as „a shop in which mainly alcoholic beverages are sold or are attainable, exclusively for on-site consumption‟.

[10] The question then is whether it is a „similar use‟ to a shop as contemplated in
the definition of „special business‟ as the appellant contends it is. The words „similar
use‟ are not defined in the regulations. Counsel for the appellant submitted that in
ordinary parlance, „similar‟ means „of the same kind in appearance, character or
quantity without being identical; having a marked resemblance or likeness‟.19   Relying
on this meaning, he argued that a bottle store is distinct from  a „shop‟ as defined, but
nonetheless bears a close resemblance and is similar to it in the manner envisaged in
the definition of „special business‟. We were thus urged to find that the wide language
of the definition of shop, and particularly the use of the word „includes‟, suggest an
intention to enlarge the meaning of the categories of business that would constitute
„similar use‟ to that of a shop. And there is thus no reason logically not to include a
bottle store in the category that would fall within such similar usage, so it was argued.

[11] The appellant‟s contentions seem attractive at first blush. I accept that ordinarily
a bottle store would fall within the category of similar uses to that of a shop. But this
conclusion ignores the admissible context provided by reading the relevant provisions
in the light of the regulations as a whole.20 As indicated above, a „bottle store‟ is
expressly defined in the regulations. It is also expressly excluded from the definition of
a „shop‟. In my view it is highly unlikely that the legislature would exclude a bottle
store expressly from the definition of a shop but then allow it under the category of
similar uses.

[12] There are other indicia in the regulations that suggest that a bottle store is not a
similar use to that of a shop. Clause 4 of Part 1V of the regulations deals with the
development parameters and land use restrictions applicable to each use right which

19   The Shorter Oxford English Dictionary vol 2 (1998); Concise Oxford English Dictionary 12 ed (2011).
20 Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA); Natal
Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

are not attached to a specific zoning and will change according to the use rights
allowed in the zoning. Clause 4.6.1 contains the definition of „bottle store‟ set out
above. Clause 4.6.2 covers the relevant land use restrictions and provides that „[t]he
land use restrictions applicable to a shop … will apply if a bottle store is allowed in the
restricted business zone and the land use restrictions applicable to special business …
will apply if allowed in the special business zone’. (Emphasis added.) The use of the
words „if allowed‟ amply demonstrates that a zoning of a „bottle store‟ in a „special
business‟ zone does not automatically endow it with primary use status and discharge
its obligation to seek municipal consent.

[13] In my view, the meaning which the appellant seeks to ascribe to the definition of
„special business‟ does not find support in the regulations. In the circumstances, the
appellant is not permitted to conduct the business of a bottle store without the
municipality‟s consent. The decision of the high court was correct. The appeal must,
accordingly, fail.

[14] In the result, the following order is made.
The appeal is dismissed with costs.

____________________

MML Maya

Judge of Appeal

APPEARANCES

APPELLANT:

JD Huisamen SC

Slabbert & Rossouw Attorneys, Jeffrey‟s Bay

Bock & Van Es Attorneys, Bloemfontein

RESPONDENT:
JJ Nepgen

CW Malan Attorneys, Jeffrey‟s Bay

Phatshoane Henney Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

18 March 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Trumper Trading 166 CC v Kouga Municipality (795/13) [2015]
ZASCA 18 (18 March 2015)

MEDIA STATEMENT

Today the Supreme Court of Appeal (SCA) dismissed the appeal by the appellant and confirmed the
order of the Eastern Cape High Court, Grahamstown.

The issue in this appeal was whether the Jeffrey’s Bay Municipality: Zoning Scheme Regulations (the
regulations), permitted the operation of a bottle store from premises zoned as ‘special premises’
without the special consent of the respondent (the municipality).

The appellant is a close corporation and sole proprietor of  a bottle store which it operates on Erf 36,
Paradise Beach, Jeffrey’s Bay (the premises) in terms of a liquor licence granted to it by the Eastern
Cape Liquor Board in November 2008. In October 2008, the appellant’s former member applied to the
respondent for special consent for the use of the premises and the buildings thereon as a bottle store,
supermarket and coffee shop.

The municipality refused the application due to the objections received from surrounding property
owners. As it turned out, the appellant had in the meantime commenced the business of a bottle store
without municipal consent and was selling liquor from the premises. When this  came to the
municipality’s attention, it directed the appellant to cease operating the bottle store. However, the
appellant continued to trade whilst making further unsuccesful attempts until late in 2010, to obtain
the consent. On 16 March 2011 the municipality instituted interdict proceedings in the magistrate’s
court to stop the appellant from trading as a bottle store without the necessary consent and was
successful as was its opposition to the subsequent appeal in the high court.

On appeal, the appellant contended that by virtue of the zoning applicable to the appellant’s premises
as ‘special business’  in the regulations no consent was required to conduct the business of a bottle
store because ‘special business’ is defined to include ‘shops’ as well as ‘similar uses’ and a bottle
store is a similar use to a ‘shop’ as contemplated in the definition.

The SCA held that that the meaning which the appellant sought to ascribe to the definition of ‘special
business’ did not find support in the regulations. A bottle store was expressly excluded from the
definition of a shop and it was therefore highly unlikely that the legislature would exclude a bottle
store expressly from the definition of a shop but then allow it under the category of similar uses.

The SCA concluded that in the circumstances, the appellant was not permitted to conduct the
business of a bottle store without the municipality’s consent thereby reaffirming the order of the high
court.