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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no : 93

PARTIES:

WILMA EMMERENTIA VAN RENSBURG N.O.                    1^st Applicant

PHILLIPPUS STEPHANUS VAN RENSBURG N.O.               2^nd Applicant

and

NELSON MANDELA METROPOLITAN MUNICIPALITY  1^st Respondent

PERAPANJAKAM NAIDOO N.O.                                              2^nd Respondent

PURSOTHAM NAIDOO N.O.                                                      3^rd Respondent

SHASHI NAIDOO N.O.                                                                 4^th Respondent

SESHAMMA MOODLEY N.O.                                                    5^th Respondent

ANTHOSH NAIDOO N.O.                                                            6^th Respondent

MEC FOR HOUSING, LOCAL GOVERNMENT AND

TRADITIONAL AFFAIRS, EASTERN CAPE PROVINCE    7^th Respondent

REFERENCE NUMBERS -

• Registrar: 1668/06

• Magistrate:

• High Court: South Eastern Cape Local Division

DATE DELIVERED: 03/04/2007

JUDGE(S): Froneman J

LEGAL REPRESENTATIVES -

Appearances:

• for the State/Applicant(s)/Appellant(s): Eksteen/ Euijen

• for the accused/respondent(s): Goosen (1)

• : Huissamen (2-6)

Instructing attorneys:

• Applicant(s)/Appellant(s): De Villiers & Parners

Respondent(s): Rushmere Noach Inc (1)

: Greyvenstein Nortier Inc (2-6)

• Nature of proceedings : Interdict

• Topic:

• Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

SOUTH EASTERN CAPE LOCAL DIVISION

                                                                                                         Case No. 1668/06

In the matter between

WILMA EMMERENTIA VAN RENSBURG N.O.                    1^st Applicant

PHILLIPPUS STEPHANUS VAN RENSBURG N.O.               2^nd Applicant

and

NELSON MANDELA METROPOLITAN MUNICIPALITY  1^st Respondent

PERAPANJAKAM NAIDOO N.O.                                              2^nd Respondent

PURSOTHAM NAIDOO N.O.                                                      3^rd Respondent

SHASHI NAIDOO N.O.                                                                 4^th Respondent

SESHAMMA MOODLEY N.O.                                                    5^th Respondent

ANTHOSH NAIDOO N.O.                                                            6^th Respondent

MEC FOR HOUSING, LOCAL GOVERNMENT AND

TRADITIONAL AFFAIRS, EASTERN CAPE PROVINCE    7^th Respondent

                                                          JUDGMENT

Froneman J.

[1] This matter concerns a dispute between private neighbours about buildings on urban property. The dispute also has a public character because of the local authority’s failure to act in accordance with the provisions of the restrictive title conditions relating to the property. The applicants (representing a trust, ‘the Hobie Trust’) seek an order for the demolition of the offending buildings on the property owned by the second to sixth respondents (‘the Shan Trust’), an interdict to prevent nuisance emanating from the property, and the costs of the application.

[2] When the present proceedings were instituted a year ago only the first respondent (‘the municipality’) opposed the application, but on the day set down for the present hearing the Shan Trust sought to intervene by asking for the matter to be postponed sine die. I refused the application and gave reasons for the refusal in a separate judgment.

[3] The orders presently sought by the applicants are not actively opposed by the municipality, despite its earlier opposition. The reason for that will become clear later in this judgment. The only aspect upon which counsel for the Hobie Trust seriously focused attention on during argument was whether I had a discretion to grant the demolition order and, if so, whether I should exercise the discretion against granting demolition. In view of this it is not necessary to traverse the history of the matter in any great detail, but nevertheless some background explanation is called for.

[4] The Hobie Trust is the owner of erf 104, Summerstrand. Since 1994 the applicants have lived there. The Shan Trust became the owner of the adjoining erf 105 during 1996. At that stage there was only one main dwelling situated on the southern half of erf 105, together with a double garage outbuilding on the western boundary. Certain alterations were made to the main dwelling in 1996, but they are not material to the present matter. What this case is about is, firstly, the renovations to the garage (‘the western building’) and, secondly, the erection of another building (‘the northern building’) on erf 105.

[5] The renovations to the western building consist of the addition of a second storey to the garage and the extension of the existing staircase to this second floor. They were done in 1999. The northern building, a double-storey building, was built in 2000/2001. Substantial parts of both buildings were and are being used for leased accommodation.

[6] The Hobie Trust attacked the unlawfulness of the erection and extension of these buildings, as well as the lawfulness of their subsequent use for leased accommodation. Initially the grounds for the attacks were based on non-compliance with the National Building Regulations and Standards Act 103 of 1977, contraventions of Zoning Scheme and Land Use Planning regulations, and the irregular granting by the municipality of special consent to use the buildings as part of a guesthouse. The ‘special consent use’ was subsequently withdrawn by the municipality, and in October 2006 a more fundamental ground for the alleged unlawfulness came to the fore, namely the existence of registered restrictive conditions in the title deed of erf 105. In the face of these the opposition to the application crumbled, as mentioned earlier.

[7] The restrictive conditions are registered in favour of the first respondent and any erf holder in the Summerstrand Extension Township. They provide that the erf be used for residential purposes only, that only one single house dwelling for use by a single family and ordinary outbuildings required for such use may be built on the erf, and that no garage other than for ordinary use for persons residing on the erf  may be erected on the erf.

[8] It is common cause that this kind of restrictive conditions takes precedence over the municipality’s zoning and planning schemes. Generally this follows from their characterisation in our case law as praedial servitudes in favour of other erf holders (Ex Parte Rovian Trust (Pty) Ltd 1983 (3) SA 209 (D) at 212E-213F; Malan and another v Ardconnel Investments ( Pty) Ltd 1988 (2) SA 12 (A) at 40B-I) and in this case also, particularly, from the express wording of clause 1.6.5 of the Council Zoning Scheme Regulations. Consequently any possible permission by the municipality to build or use buildings contrary to the conditions can not be lawful.

[9] There is authority in this division that in a case such as the present, which involves not an encroachment upon the ground of another, but an encroachment on the rights of another in respect of use of adjoining property, I have a discretion to grant damages in place of demolition and removal of the offending buildings and structures ( De Villiers v Kalson 1928 ELD 217 at 231). As mentioned earlier, counsel for the Hobie Trust urged me to order demolition, nevertheless. In this regard he referred to the Shan Trust’s appalling history of disregard of not only the legitimate interests of its neighbours, but also its disregard of requirements set by the municipality over a very long period, starting in 1999.

[10] The renovations to the western buildings were done without plans therefor being submitted and approved beforehand. Those plans were only submitted and approved in 2004. The northern building was built without giving neighbours notice of the proposed building. In 2001 the applicants noted their concerns about the unlawful building and accommodation use to the municipality. A ‘letter of warning’ was sent to the Shan Trust and an inspection by the municipality disclosed the unlawful contravention of building and accommodation requirements, although the applicants were not told of this. They were assured, in 2002, that the unlawful activities would be rectified. The assurances did not bear fruit. In 2004 the applicants launched an application for relief similar to the relief now sought. This was withdrawn, again on the understanding that the municipality would ensure that only one additional dwelling unit was permitted on the erf and that only four guest rooms would be allowed for lease accommodation. This was not adhered to. Special consent use for eleven bedrooms was granted in 2006 by the municipality. It now appears that even the municipality has given up hope that the Shan Trust will adhere to what it asks from them. The special consent use was withdrawn earlier this year (2007) because the Shan Trust failed to comply with the requirements set for that use. On the papers before me the Shan Trust has shown a flagrant and sustained disregard not only for the legitimate interests of its neighbours, but also for local authority requirements, over a very long period of time.

[11] I must now consider whether a damages claim will meet the exigencies of the case, rather than a demolition order. The papers show that there has been an appreciable diminution of value of the Hobie Trust’s property as a result of the unlawful activities of the Shan Trust. Presumably damages in that regard can be quantified and claimed relatively easily. But the continued enjoyment of the privacy of those living as neighbours to erf 105 will be destroyed by failing to order demolition of the offending structures and buildings on that erf. The title conditions for the suburb sought to ensure that it retained a certain character. The developments on erf 105 undermine that purpose. A remedy in damages will not alleviate that difficulty (compare Camps Bay Ratepayers and Residents Association and others  v Minister of Planning, Western Cape and others 2001 (4) SA 294 (C) at 324C; Jeannie van Wyk, ‘Revaluation of Conditions of Title’, 2002(65) THRHR 643 at 649). In the result I am satisfied that the applicants are entitled to a demolition order in the circumstances of this matter.

[12] The order that follows is in accordance with the draft order handed up during argument and to which counsel for the municipality offered no objection.

It is ordered that:-

1. Any approval granted by the First Respondent to the Shan Trust in terms of             the National Building Regulations and Building Standards Act, no. 103  of            1977, to erect a building that has already been constructed in the north eastern corner of the Shan Trust’s property situated at Erf  105,  Summerstrand, Port Elizabeth  (“the northern building”) and which abuts the southern boundary of           the Applicants property, situated at Erf  104,  Summerstrand, Port Elizabeth, be and is hereby set aside.

2. The Second to Sixth Respondents take all necessary steps to demolish the entire northern building situation on Erf  105, Summerstrand, Port Elizabeth, within  60  days of the date hereof.

3. The Second to Sixth Respondents take all necessary steps to demolish and remove the top story and the staircase leading to it of the building situated in the north western corner of the Shan Trust’s property situated at Erf  105, Summerstrand, Port Elizabeth and which abuts the eastern boundary of Erf  107, Summerstrand, Port Elizabeth, within  60  days of the date hereof.

4. The Second to Sixth Respondents take all necessary steps to ensure that any tenants housed on Erf  105, Summerstrand, Port Elizabeth do not throw objects into Erf  104, tease Applicants’ dogs, and/or otherwise make a noise or other disturbance that interferes with the Applicants’ privacy and peace and quiet of the neighbourhood.

5. The First to Sixth Respondents be ordered to pay the costs of this application (such costs to include the costs of two counsel) jointly and severally, the one paying the other to be absolved, together with interest upon such costs calculated at the legal rate from a date  14  days after taxation to the date of payment.

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J C FRONEMAN

JUDGE OF THE HIGH COURT

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