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[2018] ZAWCHC 66
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De Villiers v Kruger and Another (15162/2017) [2018] ZAWCHC 66 (8 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 15162/2017
8/6/2018
In
the matter between:
SOPHIA
MARIA DE VILLIERS
Applicant
and
ANTHONY
KRUGER
First Respondent
DRAKENSTEIN
MUNICIPALITY
Second Respondent
JUDGMENT
BOQWANA,
J
Introduction
[1]
The applicant applies for an
order declaring that the respondents are in contempt of a Court Order
granted by the Judge President,
under case number 20048/2016, on 29
March 2017 (‘the Order’); that the respondents be ordered
to fully comply with
every term of that Order and that they give
reasons why they should not be committed to imprisonment, or another
appropriate sanction
be visited upon them for their aforementioned
contempt.
[2]
The second respondent on the
other hand brings an application seeking clarification of paragraph 3
of the Order in terms of Rule
42(1)(b) of the Uniform Rules of Court;
alternatively, applies for the rescission and setting aside of
paragraph 3 of that Order.
[3]
The Order states as follows:
“
1.
First Respondent shall remove, with immediate effect and in any event
within 7 (seven) days of this order, all obstructions
and
encroachments in the portion of Riesling Street abutting his property
as well as the encroachments in the servitude road, including
but
without limiting the generality of the aforegoing:
1.1
the garden in Riesling Street;
1.2
the gate which he has erected on
Riesling Street;
1.3
the pedestrian gate and attached wall
between the servitude road and Riesling Street erected on the
servitude road;
1.4
the wall erected on the servitude road
at the western (top) end thereof and which runs across Riesling
Street;
1.5
the flower bed erected at the western
(top) end of the servitude road in front of the pedestrian gate, next
to the steps;
1.6
the steps erected on the servitude road
at the western (top) end thereof.
2.
In the event that First Respondent fails to comply with prayer 2
above, the Sheriff of this Court
is authorised to remove the
structures in question at First Respondent’s costs.
3.
Second Respondent shall take such steps necessary to remove and
regularize the encroachments on
Riesling Street so as to enable it to
be used as a public street by members of the public at large.
4.
First Respondent to pay the costs of this application, on a party and
party scale in accordance
with his Notice of Withdrawal of Opposition
dated 12 December 2016.”
[4]
The Order was taken unopposed as
the first respondent, who had initially filed a notice to oppose,
withdrew his opposition. The
second respondent (‘the
Municipality’) elected to abide by the Court’s decision;
however, it filed an explanatory
affidavit to assist the Court. For
convenience, I refer to the application before the Judge President as
‘the main application.’
Applicant’s
case
[5]
The applicant alleges that the
respondents have failed to comply with the Order in that they failed
to remove some of the contents
forming part of the garden, namely:
trees and grass, as well as paving situated on Riesling Street.
According to her, the first
respondent removed most of the
encroachments and obstructions, but that was only done on 27 July
2017, which was almost 4 months
after he was ordered by the Court to
remove all of them. Also, only after the applicant’s attorney
had sent numerous letters
demanding compliance and had gotten the
Sheriff of the High Court involved, as stipulated in the Order.
[6]
According to the applicant, the
first respondent refuses to remove a tree that is still blocking her
access from Riesling Street,
as well as other smaller trees, grass,
and paving which formed part of the driveway that had been
constructed by the first respondent.
When she demanded removal of
these structures, the first respondent advised her that he had been
told by the Municipality not to
break down the structures.
[7]
The Municipality, through its
attorneys, advised that it had some difficulty understanding the
meaning of paragraph 3 of the Order.
It interpreted the Order to
effectively mean that no action was required of it: it would not
prevent the first respondent or the
Sheriff from removing the
encroachments pursuant to paragraphs 1 and 2 of the order; it would,
however, continue to consider an
application brought to it by the
first respondent to permit him to build encroachments on the affected
land; and lastly it did
not propose developing a road of any sort
over that land. The applicant contends that this attitude directly
contradicts the Order.
According to her, the terms of the Order are
clear and unequivocal, and any approval of the application of the
first respondent
for his encroachments would be contravening the
Order.
[8]
She contends further that the
Municipality had in fact, after the issuance of the Order, erected a
steel gate and fence on the affected
land, preventing the Sheriff
from removing the encroachments. Not only did the Municipality advise
the first respondent not to
continue with the removal of
encroachments, it has taken no steps to regularise Riesling Street so
as to make it suitable for use
as a public street.
[9]
The applicant alleges that the
Municipality is openly biased against her; the Municipality refused
her application in respect of
building lines, whereas same cannot be
said of how they treat the first respondent. She was further ordered
to remove illegal building
structures in the servitude road between
her property and the first respondent’s property. She recently
wanted to correct
the encroachment from her property. To do so, she
requested the builder to enter her property
via
Riesling Street South, however the builder’s truck could not
reach the off-load site
via
the
servitude road and had to be redirected. The gate erected by the
Municipality, blocking the affected land, had to be opened
and as the
truck was driving towards her property, it got stuck in the mud on
the affected land. She is constantly faced with criminal
charges
against her, regarding the encroachments, which she cannot rectify
because her construction work is being impeded.
[10]
It appears in the applicant’s
replying affidavit that the steel gate and the fence, erected by the
Municipality, were removed
on 8 September 2017.
[11]
The applicant alleges that the
paving and the grass create the impression that the street is still
part of the first respondent’s
property, as opposed to being a
public street, as required by the Order. At some point, a guest of
the first respondent parked
where the paving starts, thereby blocking
further access to the street. This impression is obviously
exacerbated by the continued
presence of the trees. The grass area is
no longer being maintained and the surface is deteriorating rapidly.
[12]
The applicant admits that the
‘large’ tree sprung up in the mid to late 90’s, it
flourished and grew in front
of her and her late husband’s
property, and by the time the first respondent bought the property he
now lives in, the tree
was already big. She alleges that when the
first respondent built a wall between their properties the tree was
included in his
erf and used by his guests to braai under.
Respondent’s
case
[13]
The first respondent alleges that
he chose to withdraw his opposition in the main application and abide
the Court’s decision,
in part because he had no desire at the
time to be part of a never ending dispute caused by the applicant,
who has been making
their (his and his wife’s) lives a misery.
Furthermore opposing the application would have cost him a lot of
money, which
he could not afford. Complying with the Order has,
however, ended up costing them far more, as they had to get a new
perimeter
wall and new gate in their driveway after demolishing the
encroachments referred to in the applicant’s application.
According
to him, this was a reasonable compromise and he thought it
would potentially de-escalate matters.
[14]
The first respondent alleges that
he has complied fully with the Order by building a new wall along the
boundary of his property
and Riesling Street; attending to having
plans drawn up for submission and approval by the Municipality;
demolishing the old gate
and fence which previously separated the
portion of Riesling Street behind his property from the part of it
which is used as a
road; removing the wall at the top end of the
servitude road and the flower bed and steps at the end of the road;
and removing
the garden which he and his wife planted in the portion
of Riesling Street behind their property.
[15]
According to him, the grass and
paving referred to by the applicant are not encroachments or
obstructions which prevent access across
the relevant portion of
Riesling Street; on the contrary the paving enhances vehicular
movement over the area and which they all
require, including the
applicant, for access to their properties, from Riesling Street.
[16]
As to the truck that allegedly
got stuck in the mud, when the applicant sent it, it was able to
drive comfortably over the paved
area; it got bogged down in the
muddy area beyond that. After dragging itself out of the mud, it
gained access to the applicant’s
house via Riesling Street
North, one of the other points of access to her property. The first
respondent alleges that the applicant
managed to do renovations to
her house without access to Riesling Street to the South/South West.
According to him, the applicant
is being unnecessarily difficult;
alternatively she has ulterior motives (making their lives a misery).
[17]
The first respondent alleges that
the trees referred to by the applicant were not planted by him, as
they were already in place
before he purchased the property. He did
not understand the Order as requiring him to remove those trees. He
in fact believed that
it would be illegal for him to remove the
trees. His understanding of the Order was based on how the applicant
had characterised
the relief sought in her application, in which she
requested an order for the first respondent to remove all
obstructions erected
by him. Had he known that the applicant would
seek an Order for the removal of the trees, which he did not consider
to be covered
by the word ‘encroachment’, which he also
did not plant and which did not belong to him, he would have
reconsidered
his approach of not opposing the relief sought in that
application.
[18]
One of these disputed trees is a
camphor tree, which has been there for at least 60 years and has to
be protected, as stated by
the Municipality. In any event, argues the
first respondent, it is ecologically unsound, selfish, unreasonable
and simply destructive
to expect a tree to be removed purely for the
sake of removing it, or for some emotional personal reason.
[19]
The first respondent agrees that
the content of the Order is clear and, according to him, it did not
require him to remove the items
which form the basis of the
applicant’s allegations of non-compliance and for which the
applicant seeks him to be held in
contempt of court.
[20]
According to him, it appears that
the disagreement is between the applicant and the Municipality and he
does not wish to be involved
in it at all. He is now being threatened
with a contempt application in circumstances where the Municipality
had informed him not
to remove the trees without its consent. This
places him in an invidious position through no fault of his own.
The
Municipality’s case
[21]
The Municipality owns this unmade
portion (southern portion) of Riesling Street. Riesling Street is
divided into two parts. The
northern portion forms part of the
applicant’s property. The southern part lies behind the first
respondent’s property.
This land has been earmarked for
possible future development of a road, where both portions would be
linked making it a through-road.
There are however no immediate plans
to develop it as an extension to existing roads in the area. This
unmade portion of the road
has never been publicly accessible or used
as a public street and is not a spending priority for the
Municipality at present.
[22]
The Municipality alleges that
paragraph 3 of the Order did not require it to take any positive
steps to immediately remove any grass,
paved surface, or trees from
the disputed area. According to it, paragraph 3 of the Order does not
prevent the Municipality from
erecting its own fences around Riesling
Street and from considering applications from any person, including,
but not limited to,
the first respondent, to lawfully encroach onto
Riesling Street – in accordance with the Municipality’s
Asset Transfer
Policy. It further alleges that paragraph 3 of the
Order does not require it to build an extension of Riesling Street
immediately
–incorporating the disputed part of Riesling Street
in a state which will allow it to be used as a public street, once
the
Municipality decides to construct such a public street. The
Municipality seeks the clarification of the Order along those lines.
[23]
The Municipality also alleges
that in the 1980’s there had already been a dilapidated fence
running across this land, preventing
it from being used as a
thoroughfare. According to it, it had at all times made it clear that
it had no intention of using rate
payers’ money to get involved
in what is essentially a hard fought and acrimonious dispute between
neighbours.
[24]
For many years the first
respondent and his predecessors in title had gardened the unmade
portion of the land reserved for the possible
extension of Riesling
Street. The first respondent fenced in this garden area more securely
and, while this was not a problem for
the Municipality, it appears to
have displeased the applicant.
[25]
According to the Municipality,
the Order primarily required that the encroachments created by the
first respondent into Riesling
Street be removed by the first
respondent, and this has been done. The remnants of the garden are
insignificant.
[26]
The hard paved area had
previously been part of a driveway, and would be a better road
surface than a gravel road. The grassed area
could be easily removed
if a road is ultimately developed, and in the interim it protects the
area from eroding. As far as the
trees are concerned, these are not
“encroachments” requiring removal under the Order. In any
event, the Municipality
has no problem with the removal of the dead
stump, the fir-tree sapling, and the avocado tree. The camphor tree,
however, is a
well-established tree and should remain. It also poses
no obstacle. Even if the area is used as a road, there is enough
space for
an ordinary vehicle to get around the tree and access the
applicant’s property.
[27]
The Municipality alleges that its
interest in these proceedings primarily arises to the extent that the
applicant appears to adopt
the view that paragraph 3 of the Order
also compels the Municipality to completely clear the road reserve
area in the unmade portion
of Riesling Street, and to immediately
develop this area as a public road. It submits that this is not what
the Order provides.
This is because the Municipality bears the power
to determine when and how it will develop the area and this was
explained in an
explanatory affidavit that it provided in the main
application.
[28]
The Municipality would construct
roads if and when it sees fit, as explicitly recognised in section
129 of the Municipal Ordinance
20 of 1974 (‘Municipal
Ordinance’), which provides that a Municipal council “
may
in its municipal area ... make, construct, reconstruct, alter and
maintain streets …
”.
This provision is repeated in section 38(a) of the Drakenstein
Municipality By-Law No. 15/2007 (‘By-Laws’),
which states
that: “
The Municipality may in
its area – (a) make, construct, reconstruct, alter and maintain
streets and public places
.”
The use of the word “may” makes it clear that the
provision is permissive.
[29]
The Municipality also refers to
the provisions of other laws, and the Constitution, to assert the
point that it is the only one
empowered to make choices based on its
assessment of its infrastructure priorities, the needs of the
community, and the available
budget. This is an aspect it alleges is
properly left to the discretion of the Municipality. According to it,
it will be a startling
outcome for this Court to have dictated to the
Municipality that it must immediately prioritise the development of a
specific piece
of road – in preference to any other
infrastructure development in the Municipality’s area –
even though no budgetary
allocation had been made for this project
and the Municipality had made it clear that it does not wish to do
so. In a nutshell
the Municipality’s case is that the Order
could not be interpreted so as to fetter its discretion and that it
was not obliged
to immediately construct the road.
[30]
It further states that the trees
are not an obstruction and leave more than enough space for a large
‘bakkie’ to drive
northwards from the southern end of
Riesling Street, through the southerly end portion and into the gate
in the southwest end of
the applicant’s property, and also to
drive from the southern end of Riesling Street through the southerly
unmade portion
and into the servitude road between the applicant’s
and the first respondent’s properties and on to Main Street.
Therefore
the applicant has the through-road that she desires.
[31]
Furthermore in terms of section
5(1)(a) of the By-Laws, no person may “
in
any way cut down a tree or a shrub in a street or public place or
remove it there from, except with the written permission of
the
municipality
”. Under section
5(2) such trees are the property of the Municipality and it is thus
not open to the first respondent to simply
cut down the trees. The
Municipality has not given its permission to have these trees cut and
the applicant is within her rights,
if she wishes to remove such
trees, to attempt to obtain the Municipality’s permission in
the ordinary course.
[32]
The Municipality alleges further
that it is prepared to allow the dead stump, the fir-tree sapling and
the avocado tree to be removed,
although they do not pose any real
obstruction. However when it comes to the camphor tree, the position
is different. According
to it, camphor trees are generally designated
as invasive aliens, but are not on the priority list in Paarl, and an
old established
tree ought to be retained if possible. This
particular tree also will not obstruct an ordinary vehicle gaining
access to the applicant’s
property, even if a road is
ultimately developed. The likelihood is that, should the Municipality
decide to develop the road, it
will attempt a development that allows
for the tree to be retained.
[33]
According to the Municipality,
the Order related to the garden gates and wall erected by the first
respondent, which have now been
removed. Furthermore the Order could
not be interpreted as not allowing the Municipality to place its own
fences, on its own property,
in perpetuity. Section 37(1) of the
By-Laws specifically allows the Municipality the power to temporarily
close public streets.
This allows a temporary closure either during
construction or pending construction, or in other circumstances, and
that would be
if such street or public place is, in the opinion of
the Municipality, in a state dangerous to traffic; or for any other
reason
which in the opinion of the Municipality, renders the
temporary closing of such street necessary.
[34]
It further alleges that the Order
merely required it to maintain the existing road reserve in a state
which would allow it to be
used as a public street, if and when the
Municipality decides to construct such a public street.
[35]
In the event that the
Municipality is not successful with this interpretation of the Order,
it seeks the rescission of the Order
on the basis that it was
obviously incorrect, and was erroneously granted by default in the
absence of the parties affected by
it. It states that the Court in
the main application could not have had proper regard to the
explanatory affidavit provided by
the Municipality in those
proceedings and that the Order was granted without hearing from other
residents in the area, as some
of them do not favour the extension of
the road. Ordinarily, if it was left to the Municipality to determine
whether such an extension
of a public street was required, it would
be required to hear from all persons affected. Not hearing other
residents could not
be procedurally fair in terms of section 3 of the
Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’),
which
requires the Municipality to consult them. The Municipality did
not appear in the main application, based on the reasonable
assumption
that its explanatory affidavit would be drawn to the
attention of the Court – including the statement that the
decision whether
to construct a public street on any particular land
remained one for the Municipality alone.
[36]
Finally, it alleges that it
attempted to settle this matter by tendering to allow the removal of
a dead stump, a fir-tree sampling,
and an avocado tree even though it
was not required to do so. It also informed the applicant that if she
wished to improve the
road surface on the southerly unmade portion of
Riesling Street, she was welcome to do so at her own expense, subject
to reasonable
conditions to ensure the safety and integrity of the
unmade portion and provided she applies to the Municipality in the
ordinary
course. Even without these modifications, the applicant
would have both the entrance and the through-road that she desires.
The
applicant has refused to accept this tender, which the
Municipality views as unreasonable.
Discussion
[37]
I must first express my
displeasure as to the amount of resources spent in litigating this
matter. Whilst it is understood that
these are contempt proceedings,
which may carry serious consequences, I do think the manner in which
this case was handled by the
parties was over-elaborate. Apart from
the fact that each of the parties had two counsel, volumes of
documents and papers, some
of which were at times repetitive, were
presented before me. Parties also asked the Court to conduct an
inspection
in loco
in Paarl. Whilst it may have been useful to have the inspection,
sight should not be lost to the fact that the purpose of the
application before me was not to re-hear the case that should have
been presented in the main application, or to assess how convenient
or not access in Riesling Street is for the parties. Neither was it
to measure how obstinate or difficult each of the neighbours
are to
one another, or how unreasonable they are - particularly the
applicant, since she has sufficient access points to her property.
This was, however, a path the parties, at times, seemed to have
invited me to take. The issue before me is simply whether there
has
been non-compliance with the Order – and if there was, whether
such non-compliance amounted to contempt of the Court
Order.
[38]
It is clear that the relationship
between the applicant and the first respondent and his wife, is a
hostile one. It does seem to
me that the nature of the parties’
relationship has veiled the manner in which they look at this matter,
such that their
objectivity in trying to resolve the situation may
have been obscured. The parties sought to bring all other neighbourly
issues
and disputes to this case, which for the most part were
irrelevant. I deal with the role that the Municipality has played in
this
case in due course.
[39]
The case in essence is about the
interpretation of the Order. According to the applicant most of the
encroachments and obstructions
have been removed, excepting the
paving, the grass, and the trees.
[40]
Commenting on the importance of
complying with Court Orders, the Constitutional Court in the decision
of
Pheko and Others v Ekurhuleni
Metropolitan Municipality
2015 (5)
SA 600
(CC), held at paragraph 28:
“
Contempt
of court is understood as the commission of any act or statement that
displays disrespect for the authority of the court
or its officers
acting in an official capacity. This includes acts of contumacy in
both senses:
wilful disobedience and resistance to lawful court
orders
. This case deals with the latter, a failure or refusal to
comply with an order of court. Wilful disobedience of an order made
in
civil proceedings is both contemptuous and a criminal offence. The
object of contempt proceedings is to impose a penalty that will
vindicate the court’s honour, consequent upon the disregard of
its previous order, as well as to compel performance in accordance
with the previous order.” (Footnotes omitted - Own emphasis)
[41]
The Court in
Fakie
N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) articulated the test as follows, at paras 9 and 10
of the judgment:
“
The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed ‘
deliberately
and
mala fide’
.
A deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled
to act
in the way claimed to constitute the contempt. In such a case, good
faith avoids the infraction. Even a refusal to comply
that is
objectively unreasonable may be
bona
fide
(though unreasonableness
could evidence lack of good faith)
.
These
requirements – that the refusal to obey should be both
wilful
and
mala
fide
,
and that
unreasonable
non-compliance, provided it is
bona
fide
,
does not constitute contempt
– accord with the broader definition of the crime, of which
non-compliance with civil orders is a manifestation. They show
that
the offence is committed not by mere disregard of a court order, but
by the deliberate and intentional violation of the court’s
dignity, repute or authority that this evinces. Honest belief that
non-compliance is justified or proper is incompatible with that
intent.” (Footnotes omitted - Own emphasis.)
[42]
In order to succeed the applicant
must prove that there was an order; that it was served on or that
notice was given to the respondent;
and that there was non-compliance
which was wilful and
mala fides
.
Such requirements must be proved beyond reasonable doubt. However,
“
once the applicant has proved
the order,
and
non-compliance, the respondent bears an evidential burden in relation
to wilfulness and mala fides: Should the respondent fail
to advance
evidence that establishes a reasonable doubt as to whether
non-compliance was wilful and mala fide, contempt will have
been
established beyond reasonable doubt.... A declarator and other
appropriate remedies remain available to a civil applicant
on proof
on a balance of probabilities.”
(
Fakie
N.O
.,
supra, at para 42.)
[43]
Turning to the
interpretation of the Order. In
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
Others
2013
(2) SA 204
(SCA), the Court held at para 13:
“…
the
determination of this appeal depends on the proper interpretation of
the Preller J order. The starting point is to determine
the
manifest purpose of the order.
In
interpreting a judgment or order, the court's intention is to be
ascertained primarily from the language of the judgment or order
in
accordance with the usual, well-known rules relating to the
interpretation of documents.
As in the case of a document, the judgment or order and the court's
reasons for giving it must be read as a whole in order to ascertain
its intention. See
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977
(4) SA 298
(A).”
(Own
emphasis.)
[44]
This approach was quoted with
approval by the Constitutional Court in
Eke
v Parsons
2016 (3) SA 37
(CC) at
para 29. In
Firestone
South Africa (Pty) Ltd
supra,
at 304E–H, the Court went further to state:
“
If,
on such reading, the meaning of the judgment or order is clear and
unambiguous, no extrinsic fact or evidence is admissible
to
contradict, vary, qualify, or supplement it. Indeed, it was common
cause that in such a case not even the court that gave the
judgment
or order can be asked to state what its subjective intention was in
giving it…. Of course, different considerations
apply when,
not the construction, but the correction of a judgment or order is
sought by way of appeal against it or otherwise….
But
if any uncertainty in meaning does emerge, the extrinsic
circumstances surrounding or leading up to the court’s granting
the judgment or order may be investigated and regarded in order to
clarify it
.” (Own emphasis.)
(See
also
ABSA Bank Ltd t/a
Volkskas Bank v Page
and
Another
2002 (1) SA 617
(SCA) at
para 7.)
[45]
Natal Joint Municipal Pension
Fund v Endumeni Municipality
2012
(4) SA 593
(SCA), at para 18, elucidated a slightly more expansive
approach in interpreting documents (in general) as follows:
“…
Whatever
the nature of the document, consideration must be given to the
language used
in the
light of the ordinary rules of grammar and syntax; the
context
in which the provision appears; the apparent
purpose
to which it is directed and the
material known
to those responsible for its production
.
Where more than one meaning is possible each possibility must be
weighed in the light of all these factors. The process is objective,
not subjective.
A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike results
or undermines the apparent purpose
of the document
…”
(Footnotes omitted - Own emphasis.)
[46]
Therefore, as articulated in
Educated Risk Investments 165 (Pty)
Ltd and Others v Ekurhuleni Metropolitan Municipality and Others
2016 (6) SA 434
(SCA), at para 19, “
...
[a]
s with all
exercises in interpretation the words must be taken as the starting
point and construed in the light of their context
and purpose…
”
.
[47]
In the present matter the Order
was granted, unopposed, in favour of the applicant. The parties did
not ask the Court for reasons
pertaining to its Order. They also did
not seek clarity from the Court as to its meaning. What is before me
is the Order itself,
the material leading to the granting of the
Order, which is the main application, and the affidavits filed
therewith, including
the Municipality’s explanatory affidavit
and the current papers forming the basis of the interpretation they
attach to the
Order.
[48]
It is common cause that the Order
was made and served on the respondents. The issues remaining are
whether there was non-compliance
with the Order and whether if there
was, such was wilful and
mala
fide
.
Has
there be non-compliance with the Order by the first respondent?
[49]
According to the applicant, the
Order is very clear. It required the first respondent to remove,
within seven days of the Order,
“
all
obstructions and encroachments…
including, but without limiting the
generality thereof
”, inter
alia, “
the garden in Riesling
Street…
” (As per
paragraph 2). This meant every obstruction and encroachment without
exception or qualification had to be removed.
Therefore, according to
the applicant, the trees, grass and pavement had to be removed. The
first respondent says those are not
obstructions or encroachments.
[50]
The use of “
all
”
in the Order connotes that no obstructions and encroachments were
excluded. It is also evident that the list of things that
required
removal was not exhaustive. Obstruction can be defined to mean “
a
thing that impedes or prevents passage or progress; an obstacle or
blockage
” (See Google online
dictionary). Cambridge online dictionary also defines obstruction as
“
something that blocks a road,
passage, entrance etc. so that nothing can go along it, or the act of
blocking something in this way
.”
[51]
Whilst, the online Google search
dictionary defines encroachment as, inter alia “
intrusion
on a person’s territory, rights etc”
.
The Oxford Dictionary refers to “
a
gradual advance beyond usual or acceptable limits”.
[52]
In my view, to answer the
question of what is entailed by obstructions and encroachment in the
context of the Order, “
the
extrinsic circumstances surrounding or leading up to the court’s
granting the judgment or order may be investigated and
regarded in
order to clarify it”
,
as found in the
Firestone
and
ABSA
Bank
decisions mentioned above. Therefore the content of the main
application becomes relevant.
[53]
In the main application, under
the heading “
Nature and Aim of
the Application”
, the
applicant mentioned that Riesling Street is a public street, which
was found to be so in a judgment of this Court by Henney
J, wherein
the applicant was also a party, namely,
Sophia
Maria de Villiers and Another v Coenraad Stephanus Jacobus Louw and
Another
, case number 13960/13. That
Riesling Street is a public street is not disputed.
[54]
She
further stated that the first respondent unlawfully appropriated to
himself a portion of Riesling Street, which he used as a
garden,
thereby denying her entry to her property, and also blocking the
servitude road that ran between the applicant’s
and the first
respondent’s properties. She therefore sought relief in wording
similar to that which became the Order. In
her founding affidavit she
referred to a number of structures, some of which are not necessary
to mention for the purposes of this
dispute. Key though is that she
mentioned removal of all obstructions and encroachments
constructed
by the first respondent in a public street
.
This much is repeated in numerous parts of the founding affidavit
including paragraphs 22, 25, 28, 30 and others, where phrases
like
“
obstructions
erected by the first respondent
”,
“
garden
planted by the first respondent
”,
appear.
[55]
According to
the applicant although trees were not mentioned specifically as part
of the relief sought, they were stated as part
of the garden.
The
picture seems to be the following. The affected portion of Riesling
Street, although designated as a public street and owned
by the
Municipality, was for many years used as part of private property.
The large tree (which the respondents refer to as a “camphor
tree”) grew and developed in that context. When the first
respondent bought the property he incorporated it into his garden.
He
did the same in respect of the smaller trees.
[56]
If one has regard to the context
of the main application, it seems to me it was brought with the view
to directing the first respondent
to remove all obstructions and
encroachments that he caused. Although the trees would have formed
part of the garden, “
a sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose
of the
document…
” as was held
in
Natal Joint Municipal Pension Fund
v Endumeni Municipality
supra. It
cannot be sensible to interpret the Order to have required the first
respondent to remove an object he found there. Such
interpretation is
not supported by the premise of the main application. Although the
trees may be obstructions, they were not caused
by the first
respondent. The applicant should have been more categorical in her
main application if she wanted the first respondent
to remove the
trees as they fell outside the theme of structures he constructed. It
is common cause that when he bought his property
the large tree,
which grew by itself, was already big. Therefore, although the list
of obstructions to be removed by the first
respondent was not
exhaustive in the Order, it could not be interpreted to have included
the trees, if the proper context of the
main application is taken
into account.
[57]
Turning to the paving, since this
was constructed as part of the enclosed area which was used by the
first respondent as part of
his private property, it is not
reasonable to hold that the paving would not constitute part of the
structures which the Court
stated were to be removed as
encroachments.
[58]
Paving on a public street built
by a resident, in my own assessment of the Order, forms part of
encroachments that the Court ordered
to be removed. It constitutes an
intrusion into someone else’s territory. It is noteworthy that
section 2 of the Municipality’s
By-Law states that:
“
No
person shall –
(a)
make,
construct, reconstruct, or alter a street or sidewalk –
(i)
except with written permission of the
municipality, or
(ii)
otherwise than in accordance with the
requirements prescribed by the municipality, or
(b)
construct a veranda, stoep, steps or
other projection or erect a post in a street or public place except
with written permission
of the municipality.”
[59]
I am alive to the fact that the
applicant has stated that because the paving provides a usable
driving surface, for pragmatic reasons,
it can stay. This once again
is a different question or issue altogether. The issue to be
determined is whether or not the paving
would have been an
encroachment for the purposes of the Order. Whether or not it serves
a convenient purpose and that the applicant
has had a change of heart
in regard thereto, does not mean that it was not an encroachment in
terms of the Order.
[60]
Insofar as the grass patches are
concerned, to the extent that the grass was planted by the first
respondent, it would have been
included in the Order; it was part of
the garden. The first respondent, however, removed the garden and
what remains are small
patches of grass. Small patches are simply an
indication that grass existed in that area before. The grass as
depicted from the
photos in the main application is not the same as
the small patches that remained. That was the picture noted during
the inspection
in
loco
.
In this regard I do not find that there was non-compliance with the
Order. It would be expected that small remnants of a formerly
existing garden might still be visible.
[61]
In sum, on the first question of
non-compliance by the first respondent, the Order should be
interpreted to have excluded the trees
but included the grass and the
pavement. However, there has been non-compliance with the Order only
with regards to non-removal
of the pavement. There is no
non-compliance by the first respondent insofar as the remaining
patches of grass are concerned. The
issue, however, does not end
there for contempt to be proven. Conduct must be shown to have been
wilful and
mala fide
.
Was
non-compliance wilful and
mala fide?
[62]
Even if it were to be found that
the first respondent was ordered to remove the trees, he was informed
by the Municipality that
he could not remove them, as they belong to
the Municipality. He was further advised that doing so would amount
to an unlawful
act. He was, therefore, placed in an invidious
position.
[63]
Secondly, the main application
insofar as the first respondent was concerned, was premised on the
fact that the first respondent
remove all obstructions erected or
planted by him and that was what he understood from the founding
affidavit to the main application.
That appears in many of the
paragraphs of the applicant’s founding affidavit. Therefore,
the fact that the first respondent
did not plant the trees in
Riesling Street, as well as the warning that he got from the
Municipality not to remove the trees, are,
in my view, sufficient
reasons to hold that his conduct in this regard was not wilful and
mala fide.
The first respondent has placed
bona
fide
reasons before the Court as to
why he did not comply with the Order.
[64]
With regards to the paving,
whilst the first respondent may have been aware that the paving
should form part of the encroachments
to be removed, I am not
satisfied that he acted wilfully and
mala
fide
in disregarding the Order. This
is because both he and the applicant have made common cause that the
paving serves an important
function to both of them, meaning that if
it were to be removed (particularly in an instance where the
Municipality has taken a
view that it was not required by the Order
to do anything in that street, or to put it differently, it was
simply ordered to “maintain”
the road, until it decides
to build a road), the removal of the paving may make it unpleasant or
impossible to drive, as the road
could be worse than before, if
nothing further is done to fix it. I therefore find that insofar as
the first respondent is concerned
no contempt of court has been
shown.
Has
there been non-compliance by the Municipality?
[65]
Paragraph 3 of the Order directed
the Municipality to “
take
such steps necessary to remove and regularise the encroachments
on Riesling Street
so as to
enable it to be used as a public street by members of the public at
large
.
”
[66]
As can be seen, the first part of
the Order in relation to the Municipality is confined to taking such
steps necessary to removing
and regularising
encroachments
,
there is no mention of
obstructions
.
It will be recalled that encroachments refer to intrusion on some
else’s territory. As the trees belong to the Municipality
and
having grown on its land, they cannot be regarded as “intruding”
as the public street is property of the Municipality.
Therefore, on a
proper interpretation, the Municipality has not been ordered to
remove the trees. The body of the main application
did not require of
it to do so either. The Order clearly required it to take such steps
to remove and regularise the encroachments.
The trees are not
encroachments. Had paragraph 3 of the Order included “obstructions”
as objects to be removed by the
Municipality, the picture could have
been different.
[67]
The position is, however,
different when it comes to the paving. It is an encroachment on land
belonging to the Municipality. Therefore
as an encroachment there is
a requirement to take such steps necessary to remove and regularise
it. It is within the powers of
the Municipality to require the first
respondent who caused it to remove it or to do so itself.
[68]
The second part of the Order is a
further requirement suggestive of the fact that the purpose of
removal and regularisation of the
encroachment on Riesling Street is
“
so as to enable it to be
used
as a public street
by
members of the public at large
.”
[69]
In my view, this part of the
Order suggests some action on the part of the Municipality. It is
well and good that the first respondent
has removed most
encroachments and that the pavement enhances vehicular movement. That
however does not absolve the Municipality
of its responsibilities in
terms of the Order to enable the street to be used as a public street
by members of the public at large
and not only portions of it. It is
irrelevant that the street is, in fact, only used by the residents of
the properties adjacent
to the street.
[70]
The Municipality suggests that
its obligation only exists insofar as it is necessary to enable the
disputed portion to be used as
a public street by the members of the
public at large, and it suggests that that has been done, or to
maintain it until it decides
whether it would build a road.
[71]
I do not think so. It was
contemplated in the main application that the Municipality would take
active steps. The content of the
founding affidavit in the main
application, which forms part of the material to be considered in
interpreting the Order, confirms
this. For example, at paragraph 12,
thereof the applicant stated that the Municipality “
had
a legal obligation to remove or cause to be removed encroachments in
the public street and moreover, to effect the necessary
improvements
and/or maintenance required for Riesling Street to be capable of
being used as a public street by members of the public
.”
Part of paragraph 30 states “…
[t]he
Second Respondent has also failed to develop the part of Riesling
Street, so as to comply with all the relevant requirements
for a
public street
…”
[72]
What “
all
the relevant requirements for a public street
”
are is for the Municipality to determine. During the hearing of the
main application, it appears from the transcripts of
those
proceedings that counsel for the applicant mentioned to the Court
that the applicant was not seeking to tell the Municipality
that the
road must be tarred or must be kept as a gravel road, or that it must
be paved. All the relief sought to do was for the
Municipality to
deal with this street in accordance with the ordinances and the
regulations.
[73]
It is manifestly clear from what
was sought in the main application, that the Municipality was
required to take active steps in
making the road compliant to the
requirement of a public street. If upon its assessment the
Municipality finds that the road cannot
be used by the members of the
public at large as it currently stands, then it is incumbent upon it
to make the street compliant
with the law and, most importantly, to
comply with the Order. This is consonant with section 127(1) of the
Municipal Ordinance
which states that:
“
When
any immovable property owned by a division or under the control or
management of a council is encroached upon, the council
may and, when
so directed by the Administrator,
shall
take such steps as may, in the opinion of the council, be necessary
to remove or regularise such encroachment
.’
[74]
In
Escherich
and Another v De Waal and Others
2017 (6) SA 257
(WCC) Bozalek J stated at para 36: “…
s
127 (1) of the Ordinance (pursuant to which ownership of the public
street in question is vested in the local authority) provides
that
when there has been any encroachment upon such a street, as in this
case, the local authority
may
take such steps
as it
considers necessary to remove or regularise such encroachment.
”
[75]
Although the section confers a
discretion upon the Municipality to remove or regularise
encroachments, in this case it has been
ordered by a Court to do so
and that is an important factor. The Municipality suggests that the
Order could not mean that it was
obliged to do anything other than
just maintaining the road for public use, because any other
interpretation would raise the matter
of separation of powers and the
Court would not have intended to do so. The Order is clearly not
prescriptive.
[76]
To
the extent that the Court would have treaded upon separation of
powers, which in my view is not the case, that would be a contest
for
another forum. The Order must be interpreted in its context, which
according to the main application, was that a portion of
the street
that was previously used for private purposes and which had certain
structures built on it, should be made usable as
public street to
member of the public at large.
[77]
It is sensible to interpret the
Order to require action from the Municipality because there could
still be disfigurements and remnants
on the street resulting from the
removal of structures that were there before. Whether this means
levelling the road or removing
any material on the ground to bring
the road to acceptable standards for use by members of the public is
up to the Municipality
to decide. Once again, assessment of how that
should be done is left to the Municipality
[78]
In a letter that the Municipality
wrote to the Public Protector, attached as annexure “MDV 26”
to the founding affidavit
of the main application, the Municipality
stated that it “
acted within
its rights to inform Dr Louw that Mrs De Villiers
(and
the general public) have the right to use the portion of Riesling
Street
abutting his property
Erf 26160,
as it is a public
road which has been constructed to acceptable gravel standard
(including kerbstones) funded by the rate payers
.
Dr Louw’s demand that Mrs De Villiers should be allowed access
via this already constructed portion of public road once
Riesling
Street has been constructed along its entire intended length is
considered inappropriate and unreasonable
.”
[79]
Henney J in
Sophia
Maria De Villiers and Another v Coenraad Stephanus Jacobus Louw and
Another
, which I have already
mentioned, did not prescribe what had to be done; in fact the
Municipality was not directed to do anything
by the Court, as it has
been in this case. The Municipality however saw it fit, in that case,
to put gravel on the Northern portion
of Riesling Street. This is not
to say it is obliged to put gravel in this case too, but what it goes
to show is that following
the removal of structures by Mr Louw in
that case, there was a need to make the street usable to members of
the public.
[80]
The issue that the Municipality
will have to tap into its funds to do so is not the issue I have to
determine in interpreting the
Order (in this case). The notice of
motion in the main application contained a prayer requiring the
Municipality to take active
steps as I have outlined above. Its
explanatory affidavit was placed before the Court hearing the main
application. It appears
from the transcripts of the proceedings in
the main application that the Court was aware of that affidavit and
did not see it as
taking the matter any further.
[81]
If the Municipality wanted to
challenge prayer 4 of the main application, which became paragraph 3
of the Order, it should have
done so. Instead it confined itself to
prayers 2.1, 2.2, and 2.4 of the notice of motion in the main
application. It further alleged
in paragraph 6 of its explanatory
affidavit “
that any decision
regarding Riesling Street
in
these proceedings
(this is
not an application for the review of any decisions made by The
Municipality) falls outside the parameters of judicial
authority to
prescribe to The Municipality of the how to fulfil its executive
functions regarding Riesling Street, as such a decision
by this
Honourable Court may infringe on the doctrine of separation of powers
between the Legislature and the Judiciary.
”
[82]
The Municipality further stated
in paragraph 7 of the explanatory affidavit: “
it
is also respectfully submitted and I was advised accordingly that,
should this Honourable Court prescribe to The Municipality
how its
administrative functions should be performed,
(sic)
will constitute a violation of
the doctrine of separation of powers and will infringe on the
executive powers of the municipalities
”
.
[83]
If the Municipality viewed
paragraph 4 of the main application as not directing it to do
anything, it begs the question why it would
consider it necessary to
warn the Court that any decision it makes may infringe on separation
of powers. In other words, the Municipality
appears to have been well
aware that paragraph 4 contained a directive to it to take a certain
action; hence it warned the Court
that
any
decision
regarding Riesling Street
fell outside the parameters of judicial authority. I must underline
any decision
.
In fact the Municipality was telling the Court that it could not make
any decision regarding Riesling Street as that was outside
the
Court’s powers and only it, as the Municipality, could make
decisions regarding that street. It follows therefore that
there has
been non-compliance with the Order by the Municipality.
Was
non-compliance wilful and
mala fide
?
[84]
The Municipality submits that
even if it is assumed that it was mistaken in its interpretation of
paragraph 3 of the Order, it is
not guilty of contempt in that it did
not wilfully disobey the Order. Put differently, a misunderstanding
as to the true meaning
of an Order negates an inference that
non-compliance is wilful. In this regard it relies on the decision of
Fakie N.O.
supra at paragraph 62 where the Court said that “
.
. .
the
Auditor-General’s claim that he so understood the order –
though clearly wrong – is not entirely incapable
of
comprehension. Mr Rogers, for CCII, emphasised that the
Auditor-General had not claimed to rely on legal advice in taking his
stand on the meaning of the order. That is true; but his stance is
nevertheless not capable of being rejected on the papers as
‘fictitious’ or palpably uncreditworthy, without his
being afforded an oral hearing.
”
(
Footnote
omitted
)
[85]
The Municipality is a respondent
in the contempt application, therefore the version it puts regarding
its interpretation of the
Order must be accepted, unless it is
regarded to be so far-fetched or clearly untenable such that the
Court is justified in rejecting
it on the papers. In this regard, I
find no reason not to accept the Municipality’s version –
given its interpretation
of its discretion it understands to
ordinarily possess. It may have wrongly interpreted the Order in this
case, but I am unable
to find it in wilful disregard of the Order.
Whilst I am unhappy with the fact that it did not immediately
approach the Court to
seek clarity, I am willing to accept that its
conduct was not wilful. It may have been unreasonable but I have to
find that its
actions were not
mala
fide
.
[86]
Having said that though, I find
the Municipality’s approach in this matter perplexing. The
reading of the papers gives an
impression, rightly or wrongly that
the Municipality has not been willing to come to the assistance of
the applicant to the extent
that she had to approach the Court in the
main application for anything to be done regarding the use of a
public street by the
first respondent for private purposes, which the
Municipality did not dispute was unlawful.
[87]
Having been granted an order in
her favour, she received very little assistance from the
Municipality. Although the Municipality
has stated that it did not
want to get involved in the dispute between neighbours, in some way
it possibly may appear to be favouring
the first respondent’s
case, and not simply adopting a neutral approach and abiding by the
decision as it said it would,
particularly in respect of the
encroachments which were supposed to have been removed, primarily by
the first respondent.
[88]
The Municipality stated that in
the event that its interpretation is found to be incorrect, it
applies for rescission of the Order
in terms of Rule 42. In my view
this application is misdirected. I agree with the applicant’s
counsel, that the Court in
the main application is
functus
officio
. A decision of the Court
cannot be rescinded on the basis that it treads upon the doctrine of
separation of powers, and that it
was erroneously granted by default
in the absence of the residents on the basis that PAJA was not
followed. The argument that the
Court was not empowered to usurp the
powers of the Municipality is a case that should have been argued in
the main application.
It is not permissible for the Municipality to
re-open its case in these proceedings.
[89]
Insofar as an allegation is made
that the Order was made in the absence of affected parties, the
Municipality knew what order was
sought, and did not raise these
issues in the main application. It states that it was under the
reasonable assumption that its
explanatory affidavit would properly
be considered. If the explanatory affidavit was not properly
considered by the Court, rescission
proceedings are not an
appropriate forum to challenge the non-consideration or improper
consideration thereof. I need not spend
much time on the rescission
application because it is clearly unfounded.
Costs
[90]
This
is a kind of matter where each party should pay its own costs. Each
had a role to play in this case and none could claim substantial
success. Insofar as the applicant is concerned she was not clear in
the main application with regards to the issue of the trees,
which
ended up being, to a large extent the focus of the dispute. I have
found that the Order required neither of the respondents
to remove
the trees, for reasons set out in this judgment.
[91]
The
first respondent, on the other hand, did not comply with the Order
insofar as the paving was concerned and even took months
to comply
with the Order – after being pushed to do so.
[92]
The second respondent did not
comply with the Order as I have indicated above.
Conclusion
[93]
In view of the fact that the
applicant has stated that the paving can stay, I make no order in
that regard, but simply reiterate
that to the extent required, the
Order made on 29 March 2017 includes paving as an encroachment. It is
best to leave the issue
of the paving to the Municipality when
considering what it seeks to do on the affected street in compliance
with the Order.
[94]
In view of the fact that the
Order did not include a timeline by which the Municipality was to
comply, I also choose to leave that
open, but implore the
Municipality to take steps within a reasonable period to comply with
paragraph 3 of the Order.
[95]
In light of my findings, I do not
need to deal with the application to strike out.
[96]
In the circumstances, I make the
following order:
1.
A declaratory order that the respondents
are in contempt of the Court Order granted against them by this
Court, under case number
20048/2016 on 29 March 2017, is refused.
2.
The application for clarification of
paragraph 3 of the Court Order made on 29 March 2017, as brought by
the second respondent,
is refused.
3.
The alternative application for
rescission of paragraph 3 of the Court Order made on 29 March 2017,
as brought by the second respondent,
is refused.
4.
The second respondent is ordered to
comply with paragraph 3 of the Court Order made on 29 March 2017
under Case Number 20048/2016.
5.
Each party is to pay its own costs.
_____________________
N P BOQWANA
Judge of the High Court
.
APPEARANCES
For
the Applicant:
Adv. C Joubert SC with Adv. A De Wet
Instructed
by:
Brand & Robberts Attorneys, Stellenbosch
For
the First Respondent:
Adv.
R Stelzner SC with
Adv. J.R. Whitaker
Instructed
by:
Francios Louw Attorneys, Paarl
c/o Fairbridges Werthen Becker
Attorneys, Cape Town
For
the Second Respondent:
Adv. D Borgström with
Adv. P. Olivier
Instructed
by:
Van der Spuy and Partners, Cape Town