South Africa - Durban - 29 July 2019 - McDonald's restaurant in Pinetown, Durban on the 30 July 2019, is one kids favourite places to eat. Picture: Bongani Mbatha/African News Agency(ANA)
South Africa - Durban - 29 July 2019 - McDonald's restaurant in Pinetown, Durban on the 30 July 2019, is one kids favourite places to eat. Picture: Bongani Mbatha/African News Agency(ANA)

Durban High Court orders a McDonald's eatery in KZN to stop trading

By Mervyn Naidoo Time of article published Sep 20, 2020

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Durban - A McDonald's outlet trading in KwaDukuza’s CBD has been interdicted from trading because it operated without a business licence.

The franchise owners were also ordered to vacate their premises on Balcomb Street until it acquired a certificate of occupancy for its building.

In granting the order at the Durban High Court on Friday, Judge Mahendra Chetty commended the KwaDukuza Municipality for not succumbing to pressure from the business entity.

Fearing for the health and safety of patrons and employees of the fast-food outlet, the municipality brought an urgent application against the McDonald's franchise holders, MSA Devco (PTY) LTD, in June.

McDonald’s South Africa and Ashnee Mothilal were the other respondents.

The municipality claimed that MSA’s building failed the National Building Regulations and Building Standards Act's requirements.

According to the Business Act, MSA needed a licence to sell meals and perishable foodstuff.

When the matter initially came before Judge Dhaya Pillay, MSA opposed it and launched a counter-application, claiming the municipality's stance was “unfair and should be subjected to review under the Promotion of Administrative Justice Act (Paja)”.

The matter was adjourned, and MSA was ordered not to open its doors unless they received a temporary occupancy certificate and business licence from the municipality by June 19.

But the KwaDakuza municipality refused such permissions.

The matter was then adjourned to July 3, with Judge Chetty presiding over it, and MSA’s representatives amended the relief sought from the counter-application to 30-days temporary occupation, subject to their compliance with the municipality's requirements.

Those requirements were set out in a letter produced by the municipality's director of development enforcement, which stated why MSA’s building plans were rejected.

They included deviation plans not approved, conflicts on the as-built plans and various queries raised by the municipality's respective departments.

The municipality wanted “final relief” regarding MSA’s application for a certificate of occupation and business licence.

According to the municipality, MSA submitted a demolition application and plans to reconstruct a restaurant and takeaway, in 2018.

The original building plans were approved in December 2019.

MSA occupied the building on February 5, without a certificate or business licence. After commencing with trading, MSA applied for a business licence on February 19.

Between February and March, inspectors visited the building and issued notices of violation to MSA.

After issuing several contravention notices, the municipality's legal team informed MSA that they planned to approach the courts about their indiscretions.

However, the Covid-19 pandemic and the resulting lockdown rules, towards the end of March, halted MSA's trade.

Still, without the required certification, MSA resumed trading on June 1 when the lockdown rules shifted to Level 3.

In response, MSA acknowledged receipt of various contravention notices but was dismissive of the final notice to “cease its unlawful conduct”, and regarded it as a threat.

They believe they had complied fully with the municipality's requirements for a temporary occupation certificate.

MSA said while some municipal departments objected to their application, none said the building posed a health and safety risk.

It accused the municipality of “dragging its heels” in handling their occupation application.

Judge Chetty endorsed the municipality's efforts to enforce legislation.

Chetty singled out the electrical compliance issues, which went to the “heart of safety”, at the establishment, and according to the NBR Act the inspectors “discretionary decisions” was better suited in this instance, than a court,

He applauded the municipality for “not succumbing to pressure from business”.

Chetty was satisfied that the city had made out a case for final relief and MSA failed to establish a basis for the court to grant an order to either review their temporary application or full certification.

“MSA’s breach showed scant regard for the municipality's authority.”

Sunday Tribune

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