OPINION

ERF 6338 STELLENBOSCH

This legal opinion is confidential and subject to legal privilege.

Prepared for:

Jurgen Shirmacher
TATIB Foundation

Prepared by:

Mr Gregory Daniels
Cullinan & Associates Inc

27 August 2010

Our ref. GN Daniels/jb/T25-001

 TABLE OF CONTENTS

1. INTRODUCTION.................................................................................1

2. FACTS .................................................................................................1

3. RELEVANT LAW..................................................................................2

3.1 LUPO ..................................................................................................... 2

3.2 NEMA .................................................................................................... 4

4. CONCLUSION .....................................................................................5

(i)
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1. INTRODUCTION

We have been instructed by The Air That I Breathe Foundation ("TATIB"), a non-profit
organisation, to consider whether or not Erf 6338, c/o Marais and Jonkershoek Road.
Mostertsdrift in Stellenbosch (“the Erf”), is being used in accordance with its lawful zoning,
which is single residential. The Erf is 4 959 m² in extent.1

TATIB is concerned that area where the vineyard is situated is in a residential area and
that the agricultural practices that are required in order to ensure that the vines do not, by
disease, fungi or pests threaten the existing vineyards or the wine industry in the area,
may result in an infringement of the local community’s right to an environment that is not
harmful to their health or well-being being infringed.2

In this opinion we consider the facts, discuss the relevant law and provide concluding
remarks.

2. FACTS

The University of Stellenbosch ("the University") is the owner of the Erf. Our instructions
are that:
• a total of 872 vines were planted on the Erf;
• the vineyard comprises the full extent of the Erf;
• there is no residential building on the Erf, or remaining space to build a
residence;
• the vineyard was established for experimental purposes (and is named the
“Perold vineyard”);
• some of the vines (1/3 of the total) are sponsored by the general public;
• the vineyard is managed in accordance with Integrated Production of Wine
(“IPW”) principles which involves agricultural production practices for weed,
insect and fungal control, as well as fertilisation;
• the grape yield of the vineyard is harvested, and wine is being produced from
the grapes; and
• the vineyard and wine production from the vineyard, is a commercial venture.

We were provided with a brochure titled PROSPEKTUS Perold Dorpswingerd that

contains some of the abovementioned information. The brochure is attached and is
marked (annex “A”).

We were also provided with zoning certificates issued by Stellenbosch Municipality (“the
Municipality”) to two town planners on separate occasions. The certificates were

1
Surveyor General Diagram as referred to in the Planning Services opinion of 29 July 2010.
2
Section 24 of the Constitution of the Republic of South Africa, 1996.

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accompanied by brief opinions provided by Mr G Erasmus from an entity Planning Services

dated 29 July 2010 and from Mr JH Janse Van Rensburg from an entity styled TV3
Architects and Town Planners (Pty) Ltd dated 30 July 2010. Both documents concluded
that the Erf is zoned “single residential” and the current use is unlawful.

3. RELEVANT LAW

3.1 LUPO

In the Western Cape the Land Use Planning Ordinance3 (“LUPO”) regulates land use
planning and provides for matters incidental to that. In terms of LUPO, control over
zoning shall be the object of scheme regulations, which may authorise the granting of
departures and subdivisions by a council.4 The general purpose of a zoning scheme is to
determine use rights and to provide for control over use rights and over the utilisation of
land in the area of jurisdiction of the Municipality.5 Zoning Scheme Regulations were
indeed published by the Municipality. Those regulations appear to have been approved by
the then Administrator in terms of Section 35 bis of Ordinance 33 of 1934 by letter
AF.105/6/0/2 dated 18 June 1979 in the Official Gazette of 20 July 1979.

The Zoning Scheme Regulations state that on areas zoned "single residential" a dwelling
house and hothouse is a normal development. Special developments are additional
dwelling unit, daycare centre limited to 15 children, guesthouse, breeding of dogs, use of
a minor portion of a dwelling house for social, religious or occupational purposes or for a
home enterprise, accommodation of additional persons.

LUPO defines “utilisation” as:

“in relation to land, means the use of land for a purpose for the improvement of land, and
“utilise” has a corresponding meaning”

“Use Right”, in relation to land, means the right to utilise that land in accordance with the
zoning thereof, including any departure” .6

Zone and zoning are also defined to mean:

'“zoning”, when used as a noun, means land set apart by a zoning scheme for a particular
zoning, irrespective of whether it comprises one or more land units or part of a land unit;

"zone", when used as a verb in relation to land, means to set apart the land for a particular
zoning;

"zoning", when used as a noun, means a category of directions setting out the purpose for
which land may be used and the land use restrictions applicable in respective of the said
category of directions, as determined by relevant scheme regulations;

3
Ordinance 15 of 1985.
4
Section 9(1).
5
Section 11 of LUPO.
6
Section 2..

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"zoning scheme" means a scheme consisting of scheme regulations and a register, with or
without a zoning map.”7

In Hangklip Environmental Action Group v Minister, Agriculture, Environmental Affairs and

Development Planning, Western Cape and Others8 the Court, in considering section 14(1)
of LUPO (Use Rights), in determining what a property is used for, stated that the enquiry
is of a purely factual nature into the purpose for and manner in which the land referred to
was actually being used and that the process does not require or permit the exercise of a
discretion by the local authority, or the expression of an opinion or an exercise in
speculation.9 This passage was cited with approval by the Court in Waenhuiskrans
Arniston Ratepayers Association and Another v Verreweide Eiendomsontwikkleing (EDMS)
Bpk and Others10 in interpreting section 16(2) of LUPO.11

In the Waenhuiskrans matter the Court went further and stated that “the mere intention
on the part of the owner to conduct a particular activity on any land, or to use it for any
purpose, is incapable of constituting the use thereof for purposes of its zoning. It is only
when an intention manifests in some outwardly manifestation on the property that one
can determine what it is being used for.”12

Although the facts of this matter are different, the above-mentioned judgements provide
an indication of how the current use for which property is being used may be determined.
In other words, in determining what a property is being used for, one must consider from
a purely factual point of view "some outwardly manifestation on the property". In our
view, it is clear that the owners outward manifestation (i.e. the use of the property) on the
Erf is not single residential as provided for in the Zoning Scheme Regulations. This view is
supported in that the brochure (Annex “A”), also states “word ‘n wynboer in die hartjie
van Stellenbosch”. It appears that both objectively and subjectively farming operations are
taking place on the Erf and that it is indeed the University’s intention that farming
operations take place on the Erf. Accordingly, the current use of the Erf is unlawful.

This is so notwithstanding that the vineyard may have been established at the request of
neighbouring property owners. Such a request cannot turn an unlawful use into a lawful
one, circumventing the requirements of LUPO, the section 33 constitutional right to lawful,
reasonable and procedurally fair administrative action and the Promotion of Administrative
Just Act.13

The Court also stated that:

"the zoning map and register must constitute a reliable and up to date record of the zoning
and departures attached to the various properties which fall under the jurisdiction of a

7
Section 2 of LUPO.
8
[2007] JOL 20483 (C).
9
Page 15.
10
[2009] JOL 24648 (WCC).
11
Para 137 of page 60.
12
Para 138 at page 61.
13
Act 3 of 2000.

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municipality. The zoning map and register appear to be important documents which require
14
accuracy.”

On the information provided to us it does appear that the zoning map and register is a
reliable and up-to-date record of the Erf’s zoning. Accordingly, any land use that does not
comply with single residential zonation is unlawful.

Lastly, "agriculture" is not defined in LUPO or the Municipality's Zoning Scheme

Regulations. Accordingly, the ordinary dictionary meaning must be considered. In the
dictionary "agriculture" is defined to mean "the science or practice of farming, including
the growing of crops and the rearing of animals."15

In our view, on an objective assessment of the existing land use on the Erf it is clear that
farming activities are being undertaken on a scale which cannot be regarded as
insignificant or reconciled to "single residential".

3.2 NEMA

The Municipality must comply and enforce compliance with LUPO and the provisions
incorporated in its zoning scheme.16 Furthermore, in terms of section 39(2) of LUPO, no
person shall contravene or fail to comply with the provisions incorporated in a zoning
scheme.17 Any person who contravenes or fails to comply with section 39(2) is guilty of an
offence and on conviction liable to a fine not exceeding R 10,000 or to imprisonment for a
period not exceeding five years or to both such fine and imprisonment.18 Section 46(1),
insofar as it relates to section 39(2) of LUPO, is listed in Part B of Schedule 3 of the
National Environmental Management Act19 ("NEMA"). The significance of this is explained
further below.

In terms of section 34 of NEMA, whenever any person is convicted of an offence under a

provision listed in Schedule 3, and it appears that such person has caused loss or damage
to any organ of state or other person, including the costs incurred or likely to be incurred
by an organ of state in rehabilitating or preventing damage to the environment, the Court
may enquire into the amount of the loss or damage caused and upon proof of such
amount give judgement in favour of the organ of state or other person.20

The Court, when a person is convicted of an offence under schedule 3, may also assess
the monetary value of any advantage gained and in addition to any other punishment
imposed in respect of that offence order:

an award of damages or compensation or a fine equal to the amount so assessed;

or

14
Para 159 at page 69.
15
Concise Oxford English Dictionary (11th edition) at 26.
16
Section 39(1).
17
Section 39(2).
18
Section 46(1).
19
Act 107 of 1998.
20
Section 34(1) and (2).

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that such remedial measures that the court may determine must be undertaken by
the convicted person.21

Any manager, agent or employee or any person who was a director of a firm at the time
of the commission of the offence shall be guilty of the offence and liable on conviction to
the penalty specified in the relevant law (i.e. LUPO).22 In respect of directors, the offence
must have resulted from the failure of the director to take all reasonable steps that were
necessary under the circumstances to prevent the commission of the offence. Director is
widely defined to mean a member of the board, executive committee, or other managing
body of a corporate body.23 Firm means a body incorporated by or in terms of any law.24
Any such manager, agent, employee or director may be so convicted and sentenced in
addition to the employer or firm.25

Accordingly, to the extent that the University's use of the Erf is unlawful; it, its employees
or directors may be prosecuted under LUPO and NEMA and an award of damages or
compensation equivalent to the monetary value of any advantage gained by the unlawful
use of the Erf may be made.

4. CONCLUSION

There is no basis in fact or law to determine that the use of the Erf, which is currently
planted with vineyards, is in line with its current zoning which is single residential.
Differently put, if the current use of the Erf is indeed single residential, it begs the
question as to what use would be regarded as agricultural and when. In our view, and on
the basis of the facts provided to us, the current use of the Erf does not amount to a use
that is in line with single residential as provided in Stellenbosch’s Zoning Scheme
Regulations and is therefore unlawful. On conviction of an offence for the unlawful use of
the Erf, the severe penalties provided in NEMA may also be imposed.

DATED at CAPE TOWN on this 27th day of August 2010.

GN DANIELS

21
Section 34(3).
22
Section 34(5), (6) and (7).
23
Section 9(b).
24
Section 9(a).
25
Section 8.

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