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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, PORT ELIZABETH

Case no: 2431/2013

Date heard: 22/01/2015

Date delivered: 29/1/15

Not reportable

In the matter between:

Huisbrecht Johanna Enslin NO..............................................................................First Applicant

Jan Frederick Enslin NO....................................................................................Second Applicant

Royden B Whitfield NO........................................................................................Third Applicant

and

Municipal Manager: Nelson Mandela Bay Municipality................................First Respondent

Nelson Mandela Bay Municipality.................................................................Second Respondent

Rosanne Ayliff Burmeister................................................................................Third Respondent

Registrar of Deeds...........................................................................................Fourth Respondent

JUDGMENT

PLASKET J

[1] The applicants, the trustees of a trust that owns erf 737, Mill Park, Port Elizabeth, applied to review and set aside the approval of building plans by the second respondent, the Nelson Mandela Bay Municipality (the municipality) that relate to a completed construction on the property adjoining the trust’s property. That property is owned by the third respondent. I dismissed the application with costs and the applicants have applied for leave to appeal against that order.

[2] They do so on one basis only, namely that I erred in respect of my interpretation of Part T1 of the National Building Regulations read with the South African National Standard (SANS) 10400-T: 2011 of March 2011. This is the mechanism by which fire safety distances between buildings is determined.

[3] Section 3.73 of Sans 10400-T: 2011 defines the term ‘safety distance’ as the ‘distance provided between any building and the lateral boundary of the site or, where there are two buildings on the same site, the distance provided between each such building and a notional boundary line between them so that spread of fire from one building to another due to the effect of radiant heat will be minimised’.

[4] In this matter, the buildings of the applicants and the third respondent are on different but adjoining sites. The fire safety distance for the third respondent’s building, measured from it to the boundary wall, is one metre. The building is located more than that distance from the boundary wall. The fire safety distance for the applicant’s building is 2.4 metres but it is located only 1.5 metres from the boundary wall.

[5] Mr Huisamen, who appeared for the applicants, argued that I erred in my interpretation of the definition as it should have been interpreted in such a way that both fire safety distances – one metre and 2.4 metres – are taken into account. This interpretation is necessary, he says, in order to achieve the purpose of the standard, namely to avoid the ‘spread of fire from one building to another due to the effect of radiant heat’.

[6] If this method of determining the fire safety distance is used, so he argued, the inadequate distance from the applicants’ property to the boundary wall had to be ‘compensated’ for by locating the third respondent’s building further from the boundary wall than it already is. In other words, in order to accommodate for the applicants’ building being too close to the boundary, the third respondent’s building should have been situated further from the boundary wall.

[7] In my judgment, I dealt with the issue as follows:

‘[21] Whether this argument is correct or not depends on an interpretation of s 3.73 of SANS 10400-T: 2011. In my view, it is clear from the language of the section that two situations are envisaged. In the first instance, the fire safety distance, once calculated, is simply measured from the boundary line of the property on which the building is to be constructed. That is the general rule. Where, however, ‘there are two buildings on the same site’, a different method is prescribed. In this instance, one calculates the fire safety distance in respect of each building and then measures these distances from the site of each building to a ‘notional boundary line between them’ in order to determine the safe distance between them. In other words, when two buildings are on the same site, the fire safety distance is the aggregate of each building’s individual fire safety distance.

[22] Mr Huisamen argued that the latter method had to apply in this case, where the trust’s building had been constructed too close to the boundary, in order to properly give effect to the purpose of a fire safety distance. The difficulty I have with this argument is that it flies in the face of the plain wording of s 3.73 of SANS 10400-T: 2011. Moreover, the reason for the distinction between the situation pertaining to a single building on a site and two buildings on the same site is that, in the latter instance, there will inevitably be no structure such as a wall between them to minimise the risk of the spread of fire from one building to the other. That is precisely why a notional boundary has to be determined and why both buildings have to be considered. In the first instance, however, there will inevitably be a wall that separates the building from the neighbouring building. If this case highlights a deficiency in the standard – and on this, I venture no opinion – it is for the appropriate authority to rectify that deficiency by amending the standard, rather than by me reading words that are not there into the standard. If I did so, I would stray beyond the boundaries of the judicial function and be guilty of contravening the separation of powers that is at the heart of the Constitution.’

[8] In the Constitutional Court’s first judgment, S v Zuma & others [1995] ZACC 1; 1995 (2) SA 642 (CC), Kentridge AJ, in dealing with the argument that the Constitution had to be interpreted with reference to its values, held that this did not mean that the language of the Constitution could be ignored: while courts interpreting the Constitution must be conscious of its values, ‘it is nonetheless our task to interpret a written instrument’ (Para 17.) He also stated that the language of the Constitution had to be respected and if it is ignored ‘in favour of a general resort to “values” the result is not interpretation but divination’. (Para 18.)

[9] In my view, Kentridge AJ’s views on the interpretation of the Constitution with reference to its values at the expense of the language used applies equally to the interpretation of any legislative instrument, whether one speaks of its values of its purpose.

[10] In this case, as I have said in my judgment, the legislator chose to distinguish between one building on a site – in which case the fire safety distance is measured from it to the boundary – and two buildings on the same site – in which case the fire safety distance is the aggregate of the fire safety distances of both buildings measured to a national boundary line.

[11] Given the clear distinction between the two situations, I cannot see how a court can ignore the clear language of the standard; ignore the means of measuring a fire safety distance that applies to individual buildings on a site; and then, on the basis of a fiction, apply the standard that applies to two buildings on the same site.  Even if that would better serve the purpose of the standard, it is an interpretation that the clear language of the standard does not permit.

[12] I am accordingly of the view that there are no reasonable prospects of success on appeal.

[13] The application for leave to appeal is dismissed with costs.

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C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES

Applicants: JD Huisamen SC instructed by Greyvensteins

First and second respondents: TMG Euijen instructed by Gray Moodliar

Third respondent: JG Richards instructed by Friedman Scheckter

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