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IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

In the matter between: Case No: 405/08

TRANSNET LIMITED Applicant

And

PROUD HERITAGE PROPERTIES

(PTY) LTD 1^st Respondent

NELSON MANDELA METROPOLITAN

MUNICIPALITY 2^nd Respondent

SHOCKPROOF INVESTMENT 73 (PTY) LTD 3^rd Respondent

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JUDGMENT

_____________________________________________________________________

CHETTY, J

1. The port in the city of Port Elizabeth falls under the jurisdiction of the National Ports Authority (Pty) Ltd (the Authority) in terms of s 10 of the National Ports Act 12 of 2005 (the Act). The object of the Act is inter alia to promote the development of an effective and productive South African ports industry capable of contributing to the economic growth and development of the country (s 2 (a)). Thus in order to achieve that objective the Authority aims, inter alia, to conduct its business in a manner designed to achieve the objects of the Act and which does not jeopardise the national interest (s 12 (a)), to enable port users to access the port in the most effective way possible (s 12 (c)), and to promote and undertake the necessary measures to enhance safety and security of life and property in ports (s 12 (h)).

2. S 74 of the Act, under the rubric Safety of navigation and shipping in ports, thus provides in ss (1) (f) that the Authority must, for the purpose of ensuring safety of navigation and shipping in ports provide, operate and maintain adequate and efficient lighthouses and other navigational aids within the port limits and at such other places as the Authority may determine. The Authority is statutorily enjoined by s 78 of the Act to do so in order to assist the navigation of vessels within port limits and along the coast of the Republic.

3. One such navigational aid, on the uncontroverted evidence before me, is leading lights, sometimes referred to as range lights, a pair of light beacons used in position fixing and navigation to indicate safe passage to maritime vessels entering a shallow or dangerous channel. The pair, designated the rear and front lights, are separated in distance and elevation so that when they are lined up vertically, with one behind the other they provide a bearing. When a mariner sees the lights vertically in line he is on the range line. If the front light appears left of the rear light, the observer is to the right of the range line. If the front light appears to the right of the rear light, the observer is left of the range line. Richmond Hill in Port Elizabeth is the site of the port’s elevated rear beacon (the Richmond beacon). It comprises eight separate powerful lights affixed to a panel secured at the top of a 10 meter high pole embedded in a concrete base. Approximately one kilometre away and on the harbour is the front beacon, lined up vertically with the Richmond beacon. These beacons constitute the only aid to ships navigating safe entry towards and into the harbour.

4. Urban development on Richmond Hill has spawned the construction of what is referred to in the Respondents’ papers as an upmarket and modern apartment building designed to maximise, to its full potential the panoramic view of the bay. It (the development) is however being built in front of the Richmond beacon and on completion will render not only the Richmond beacon defunct, but the navigation aid useless, with the result that no ships would be able to safely enter the port. This unfortunate state of affairs has given rise to an opposed application in which the applicant seeks a permanent interdict restraining the first and third respondents, the property developer and owner respectively, from continuing with the construction of the building to a height which would obstruct the visibility of the Richmond beacon to ships at sea. The application is resisted by the first and third respondents only, the second respondent having adopted the attitude that it will abide this court’s decision. Succinctly stated, the respondents’ opposition as it appears from the answering affidavits is that the applicant has no clear right, and that the Richmond beacon should either be raised or moved by five metres. The costs associated therewith should be borne by the applicant. In argument before me however, the applicant’s reliance on a clear right to operate the Richmond beacon at its present site was not assailed in any way. The spearhead of the argument was that the applicant had a substantial and practical alternative remedy, viz the resiting or elongation of the Richmond beacon.

5. To place the application and the opposition thereto in proper perspective it is necessary to consider the events which have led the parties to the doors of this court. It is not in issue that on 26 June 2007, the Authority’s port manager addressed a letter to the second respondent’s city manager expressing concern that the construction of the development would block the Richmond beacon with dire consequences for maritime safety. It would appear that the letter only reached the municipal manager’s office on 24 July 2007. He replied on 26 July 2007, advising that the acting executive director of housing and land would be dealing with the matter. Construction proceeded in the interim.

6. By 13 September 2007 and with no response forthcoming from the acting executive director, the applicant’s port manager H.S Goosen (Goosen) was compelled to address a further letter to the municipal manager once more raising his concerns and threatening legal action failing any response from the second respondent. Its response was contained in a letter addressed to the Authority dated 2 October 2007 by attorneys McWilliams and Elliott. Its content, given the express provisions of the Act, and the ramifications of the Richmond beacon being rendered useless, is astounding. Capitalising on an incorrect reference to a provision of the Act (s 78 (5)) and thus disputing its relevance, the author proceeded to advise the Authority that notwithstanding the admitted consequences of the construction proceeding as envisaged, its client, the second respondent could not refuse to grant its approval to the phase 2 plans, it being expressly excluded from doing so by s 7 of the National Building Regulations and Building Standards Act 103 of 1977. The Authority was advised:-

“. . . In the circumstances, it is our instructions to advise that should the envisaged building plans in respect of Phase 2 of the adjacent development be submitted, our client intends approving such building plans should they be found to be in order and you accordingly are at liberty to take whatever steps you believe to be entitled in terms of section 9 of the National Building Regulations and Building Standards Act or to relocate the light in question so as to avoid your envisaged concerns.”

S 78 (1) seems to have been completely ignored.

7. That letter was followed by a further letter from the second respondent’s attorney, its import similar to that of its predecessor. Further correspondence ensued until the second respondent’s attorneys, by letter dated 30 November 2007, informed the Authority that the building plans in respect of phase 2 were approved by the second respondent on 23 November 2007. It is not in issue that pursuant thereto, the first respondent’s director, Henderson, notified the applicant that the respondents intended to complete the development and that by the end of March 2008 the Richmond beacon would inevitably be compromised thereby.

8. Before considering the substantive issues raised in the application, certain preliminary matters need to be addressed. These relate to urgency or the lack thereof and non-joinder.

Urgency

9. The principal submission advanced was to the effect that the urgency of the application was self created. As such the application should be dismissed on that ground alone. The difficulty with this argument is that it ignores the facts. Whilst it is correct that the applicant became aware of the development in June 2007, its immediate reaction was to approach the second respondent to notify it that it would deleteriously affect the proper functioning of the Richmond beacon. Correspondence flowed to and fro and various meetings were held to resolve the matter. The first respondent’s director, Henderson confirms meeting with representatives of the applicant between July and November and the inability of the parties to resolve the matter. It is common cause that the second respondent only approved the plans on 23 November 2007 and that even then attempts were made to resolve the matter without the need to resort to litigation. It was only on 24 January 2008 that the applicant finally comprehended the inevitability of litigation.

1. The decision as to whether a matter should be heard as one of urgency amounts to the exercise of a judicial discretion. This flows from the wording of Rule 6 (12) (a) which reads:-

“In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet.

This is precisely such a matter.

Non-joinder

10. The development, when completed will comprise of a number of units. The respondents’ allege that several units have already been sold on sectional title and deposits paid. They contend that the applicant should have been aware of the nature of the development, that the prospective purchasers have a direct and substantial interest of a legal nature in the litigation. Ergo, their non-joinder is fatal. It has long been recognised that the concept of direct and substantial interest connotes “an interest in the right which is the subject matter of the litigation . . . and not merely a financial interest which is only an indirect interest in such litigation.” Per Horwitz AJP in Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) at 169H. In the case of the sale of immovable property a real right is obtained only upon registration. See Wahloo Sand Bk en Andere v Trustees, Hambly Parker Trust en Andere 2002 (2) SA 776 (SCA).

In my view the prospective purchasers of certain of the units have no direct legal interest in these proceedings. Having disposed of the preliminary skirmishes I turn to consider the application proper.

The relief sought

11. The requisites for a permanent interdict were stated by Innes J.A. in Setlogelo v Setlogelo 1914 A.D. 221 at 227 as follows:-

“The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy.”

The first question which arises is whether the applicant has established a clear right requiring protection. The applicant contends that as it is statutorily enjoined to operate and maintain the Richmond beacon in order to assist the navigation of ships towards and into the Port Elizabeth harbour, it clearly has such a right. It relies on the statutory provisions to which reference is made in paragraphs (1) and (2) hereinbefore as establishing such clear right. It is not in issue that the land upon which the Richmond beacon is situated has been lawfully occupied by the applicant and has been so occupied for approximately thirty years with the knowledge and consent of the second respondent. During that period the leading lights must no doubt have guided countless ships to safe berth in the harbour.

Clear Right

12. The applicant’s claim to a clear right is indirectly assailed on two bases – firstly that it does not have a registered servitude and secondly such a claim would infringe upon the respondent’s constitutionally entrenched property rights and negate their right to engage in economic activity. As to the first, it is long established that a servitude is a right, belonging to one person, in the property of another, entitling the former either to exercise some right or benefit in the property, or to prohibit the latter from exercising one or other of his/her rights of ownership. The difficulty with this submission is that the applicant does not seek to rely upon any servitude whether registered or unregistered.

13. Its consistent stance, elucidated upon in the founding and supporting affidavits, is that it has an obligation in terms of the applicable legislation to ensure the safe passage of ships into the harbour. As alluded to hereinbefore, the Richmond beacon has occupied its present site for the last 30 years. Its proportions and specifications would have alerted even laypeople, let alone architects, land surveyors, property developers etc, that it had not been erected for aesthetic purposes. Henderson, who, on his own admission is a registered architect, a shareholder of the first respondent and director and shareholder of the second respondent must at the very least have realised what its purpose was. In addition, the proximity of the Richmond beacon to the site of the proposed development would as a matter of common sense have alerted the respondents to the fact that the proposed development, when fully constructed, would deleteriously affect the proper functioning of the Richmond beacon. Undeterred thereby, the respondents proceeded with the initial construction. When the applicant became aware of the development and its impact on the Richmond beacon it sought an audience with Henderson to resolve the issue. Those efforts and subsequent attempts ended in stalemate. The attitude adopted and persisted with throughout is that by virtue of their ownership of the property the respondents are entitled to do therewith as they please. The respondents’ reliance on the constitutional guarantees enshrined in Chapter 2 of the Constitution is entirely misplaced. I am satisfied that the applicant has established the first requisite.

Injury actually committed or reasonably apprehended

14. There can be no suggestion, and this is in fact conceded by the respondents, that in its current location the Richmond beacon would be rendered redundant upon completion of units 1 to 6 of the development. Furthermore, the applicants contend that even if the height of the development does not obscure the rear lights on the Richmond beacon, the problem remains. Illumination caused by the lights within the offending section of the development will undoubtedly interfere with the effective operation of the system. The applicant’s case, elucidated upon by the harbour master, Neil Chetty, the chief harbour master, Michael Joseph Brophy and its manager, technical section, lighthouse services, James Herbert Collocot is a compelling one. Illumination in the units, in close proximity to the Richmond beacon would have disastrous consequences. These concerns are dismissed by Henderson as a red herring but he is far from qualified to express an opinion on matters falling outside the ambit of his expertise. To suggest that the illumination caused by the lighted building would not adversely affect the proper functioning of the rear lights is, in contradistinction to the applicant’s evidence, self serving. I am accordingly satisfied that the second requisite has been fulfilled.

Available and adequate alternative remedy

15. The respondents have consistently averred that the applicant has an available and adequate alternative remedy – build the Richmond beacon to a height which would overlook the development. They have suggested various ways in which this may be done to the point of engaging an expert, Deon Henry Martiz. I have previously considered these contentions hereinbefore but am constrained, given the structure of the respondents’ case and the submissions advanced to emphasize that the solution proposed by the respondents is not one countenanced in our law.

16. The legal position is clear. As pointed out by Beadle C.J. in Francis v Roberts 1973 (1) SA 507 (R, A.D.) at 512D-E:-

“As I understand the law, however, where the words ‘any other ordinary remedy’ are used in this context, they do not mean the factual remedy of the plaintiff abating the injury himself by resorting to some physical action. They mean a remedy which is available through the normal process of the law, such as a claim for damages.”

See also Masuku v Minister van Justisie en Andere 1990 (1) SA 832 (A) at 840J-841A.

17. It was submitted that the further impediment to the grant of the order sought was that the applicant had an available and adequate alternative remedy which they elected not to exercise. This remedy allegedly resorts in the appeal procedure envisaged by s 9 (1) (C) of the National Building Regulations and Building Standards Act 103 of 1977. It reads as follows:-

“(1) Any person who –

1. . . .

2. . . .

3. Disputes the interpretation or application by a local authority of any national building regulation or any other building regulation or by-law.

may within the period, in the manner and upon payment of the fees prescribed by regulation, appeal to a review board.”

18. To place this argument in proper perspective, it is necessary to revisit the facts. I have earlier alluded to the correspondence between the applicant and the second respondent in regard to the approval of the plans in respect of phase 2 of the development. It is common cause that notwithstanding the concerns raised by the applicant, the second respondent approved the plans submitted to it. It has never been the applicant’s case that it disputes the interpretation or application by the second respondent of any national building regulation or any other building regulation or by-law. Its position was clear and unequivocal. The plans should never have been approved by the second respondent for the reasons already adverted to.

19. In the circumstances I am satisfied that the applicant has, on a balance of probabilities, succeeded in making out a case for a permanent interdict against the first and third respondents. In the result the following order will issue:-

1. The first and third respondents are interdicted and restrained from continuing with the construction of the building at the corner of Richmond Hill Street and Dagbreek Crescent, Richmond Hill, Port Elizabeth to a height which will obstruct the visibility of the Richmond beacon to ships at sea.

2. The first and third respondents are to pay the costs of this application including the costs reserved on 6 March 2008.

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D. CHETTY

JUDGE OF THE HIGH COURT

Date Heard: 13 March 2008

Date Delivered: 20 March 2008

For the Applicant: Adv P Scott instructed by Boqwana Loon & Connellan Attorneys

For the First and

Third Respondent: Adv A Beyleveld instructed by Friedman & Scheckter Attorneys

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