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[2019] ZAWCHC 185
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H.R.J Properties (Pty) Ltd v Mohammed and Another (17547/17) [2019] ZAWCHC 185 (25 February 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 17547/17
In
the matter between:
H
R J PROPERTIES (PTY) LTD
Applicant
and
RAYDA
MOHAMMED
First
Respondent
CITY
OF CAPE TOWN
Second
Respondent
__________________________________________________________________
JUDGMENT
DELIVERED ON 25 FEBRUARY 2019
Vos,
AJ
Introduction
[1]
In this matter the applicant applies for an order in the following
terms:
“
1. Reviewing
and setting aside the Second Respondent’s decision during
June/July 2017 to approve the First Respondent’s
building plans
in respect of Erf […], Cape Town at C Street, Woodstock under
plan Approval Number 97508637 and Plan No.:
BP/0000070317314/2017
dated 7 July 2017;
2. Interdicting the
First Respondent from constructing any wall or structure on the
applicant’s servitude right of way as
set out in SG No
2772/2003 attached marked “
JS4
” to
the founding affidavit.
”
[2]
I shall
refer to the applicant as “
H.R.J.
Properties
”,
to the first respondent as “
Mrs
Mohammed
”
and to the second respondent as “
the
City
”.
Mrs Mohammed opposes the application, while the City does not oppose
the application.
[1]
[3]
H.R.J.
Properties is the owner of the remainder of erf 10923 Cape Town,
while Mrs Mohammed is the owner of erf […], a portion
of erf
10923 Cape Town. The two properties are contiguous. In terms of the
title deed of H.R.J. Properties,
[2]
it is entitled to a servitude right of way over the property of Mrs
Mohammed. The servitude right of way is recorded as follows
in the
title deed:
“
3.
Entitled to a servitude right of way 1.5m wide in favour of Remainder
Erf […] Cape Town, over Erf […] Cape
Town at Woodstock,
the eastern boundary of which is represented by the line BC on
diagram SG No 2772/2003
”
[4]
The
servitude right of way is recorded in similar words in the title deed
of Mrs Mohammed.
[3]
[5]
The layout of the two properties is best understood by reference to
the following aerial photograph:
[See
PDF for image]
[6]
The property of H.R.J. Properties is situated immediately to the
north and the east of Mrs Mohammed’s property. The letters
A B
C D depict the approximate boundary of the property of Mrs Mohammed.
The line B C, which is about 18,3 meters in length, represents
the
eastern boundary of the servitude right of way over her property, and
the servitude right of way accordingly extends to the
west (the left)
for a distance of 1.5 meters.
The
proposed wall
[7]
Mrs Mohammed wants to erect a wall on her property along the line B
C, and approximately 4,5 meters to the south of the letter
B, the
wall will be built at an angle in a north westerly direction to the
left, towards the house of Mrs Mohammed where it will
abut the
eastern wall of her house. The purpose of the angled section of
the wall, is to permit vehicles to traverse approximately
4,5 meters
of the servitude right of way, because the vehicles have to enter and
exit the commercial building of H.R.J. Properties.
[8]
The entrance door to the commercial building is situated just above
the letter B. The distance between the letter B and the
entrance door
of the commercial property, is about 3 meters.
[9]
The property of H.R.J. Properties is in the form of a panhandle,
which extends in a southerly direction to C Street. At the
boundary,
where the panhandle joins C Street, it is about 3.49 meters wide. The
letters A B C, represent the common boundary between
the property of
H.R.J. Properties, and the property of Mrs Mohammed.
[10]
On 7 July 2017, the City approved building plans of Mrs Mohammed
whereby she has been authorised to construct the wall on the
boundary
of her property along the line B C, in such a manner that the wall
will extend to the west (left) into the servitude right
of way area.
The proposed wall will be 1,8 meters high, have five pillars, and the
width of the wall and pillars will vary between
230mm and 345mm. The
total length of the wall is about 18,3 meters. On the northern and
southern sides of the wall, there will
be security gates to permit
only pedestrian access.
[11]
H.R.J. Properties objects to the construction of the wall, mainly on
the ground that it will materially impede vehicular access
to its
property. Therefore, so it contends, it will constitute an unlawful
diminution of its right and enjoyment of the servitude
right of way.
[12]
On the other hand, Mrs Mohammed denies that the boundary wall will
obstruct the right of way as she claims that it was envisaged
that
the servitude right of way merely serves as a pedestrian exit to C
Street. She also contends that after the boundary wall
has been
erected, H.R.J. Properties would still have free access to its right
of way, as it can still be used as a pedestrian walkway
or fire
escape.
The
legal nature of the right of way: only pedestrian access?
[13]
In
The
Selective Voet Being The Commentary On The Pandects
[4]
,
and
dealing with rural servitudes, the following explanation about a
right of way is given:
“
Rural
servitudes described – (iii) Right of way (via). -
Right of way is the
right of going, walking and driving, and further of hauling stone or
timber, and of carrying a lance straight
up if only it does not
injure fruits. The last two things are not permitted in a right of
foot-passage or of driving.
Right of way embraces
both foot-passage and driving. – Right of way includes in
itself foot-passage and driving, not only
physically but also
formally. It follows that one who has a right of way established for
himself can also expressly vindicate foot-passage
and driving,
according as he has been hindered from either passing or driving; and
that he who, after having first brought such
a right of way into a
stipulation, has then been content to accept both foot-passing and
driving, is deemed to have renounced the
right of way.
”
[14]
In
Ethekwini
Municipality v Brooks and Others
[5]
it was held:
“
[18] When
it comes to a servitude of right of way it is important to bear in
mind that it enures not only to the servitude
holder, but, as it was
put by Voet, also to 'the members of his household, his guests, his
table companions, hirelings and medical
attendants along with him'.
This passage in Voet does not purport to create a watertight numerus
clausus of parties entitled to
make use of a servitude road. Thus,
Maasdorp paraphrased the above passage as follows:
'(S)ervitudes . . .
may be made use of, not only by the owner of the dominant tenement,
but by anyone who has a legal right to be
upon the dominant tenement,
such as servants, guests, visitors, labourers, etc.' [My emphasis.]”
[15]
In
Kruger
v Joles Eiendomme (Pty) Ltd and Another
[6]
the Supreme Court of Appeal held that an “
imprecise
servitude
”
must always be interpreted so that the servient tenement is “
the
less adversely burdened
”
[7]
,
but approved of the following dictum in
Van
Rensburg en Andere v Taute en Andere
[8]
:
“
By die
toepassing van hierdie beginsel moet egter steeds in gedagte gehou
word dat die aard en omvang van die beswaring bepaal word
na
aanleiding van die betekenis wat gegee moet word aan die ooreenkoms
wat die serwituut daarstel. Indien die betekenis daarvan
ondubbelsinnig blyk te wees, is 'n hof nie geregtig om daarvan af te
wyk ten einde 'n mindere beswaring te bewerkstellig nie
”
[16]
In other words, where a servitude is unambiguous, a court may not
favour an interpretation thereof which is less onerous than
the clear
grammatical meaning.
[17]
In arriving at the proper construction of the servitude in this
matter, regard should also be had to the nature of the two
properties
and their relationship to one another. The property of Mrs Mohammed
is improved by a dwelling in which she lives. Her
property abuts C
Street, and she has direct access to it.
[18] The property of H.
R. J. Properties is improved by a commercial building in which it
does business involving the supply and
installation of sustainable
and domestic green energy and heating solutions. H. R. J. Properties
has direct access via the panhandle
on its property, to C Street.
[19] If vehicles and
pedestrians require access from C Street to the commercial building
of H. R. J. Properties, they do not have
to traverse the right of way
servitude area on the property of Mrs Mohammed in order
to do so. The reason is that the
panhandle part of H. R. J.
Properties’ property, abuts C Street, and it is about 3.49
meters wide.
[20]
The panhandle is therefore wide enough for pedestrians, and also wide
enough for one vehicle for entrance and exit purposes.
Therefore,
vehicles and pedestrians can quite easily gain access to C
Street by traversing only the panhandle part of H.
R. J. Properties’
property.
[21]
But, if a vehicle is parked on the panhandle part, or driving on it,
the panhandle becomes too narrow to permit another vehicle
from
entering or exiting the property of H.R.J. Properties at the same
time. That would only be possible if such other vehicle
partially
traverses the right of way servitude area in order to gain access to
the commercial building of H.R.J. Properties. The
same situation
would arise if such other vehicle wishes to leave the commercial
building and drive towards C Street. The combined
width of the
panhandle and the servitude area, is about 4.99 metres. That is wide
enough for two vehicles.
[22]
The panhandle is 3.49 meters wide, which is obviously sufficiently
wide for pedestrians. It would not have made sense at the
time of
the creation of the right of way, to serve only as a pedestrian
walkway over the property of Mrs Mohammed, because
a wide enough
pedestrian access route was already available and existed over the
panhandle, being the property of H.R.J. Properties.
[23]
So, if the panhandle is wide enough for pedestrians, why was an
additional right of way created over Mrs Mohammed’s property?
The answer to this question will soon become self evident.
[24]
Mrs Mohammed contends that she wishes to build the wall for a number
of reasons:
[24.1] the vehicles of
H.R.J. Properties block her access to the servitude area and prevent
her from taking the garbage out of her
house;
[24.2] the wall will
prevent H.R.J. Properties from again erecting a gate, laying
cables and erecting an electric fence on
her property;
[24.3] the wall will
prevent the servitude area from being used as a commercial driveway;
and
[24.4] it will prevent
H.R.J. Properties from parking vehicles in the servitude area.
[25]
If H.R.J. Properties has exercised its servitude rights in an
improper manner, Mrs Mohammed should obtain a court order to
stop
such unlawful conduct. She is not permitted to build a wall, thereby
permanently sterilising the right to use the servitude
area. Put
differently: if H.R.J. Properties is causing a nuisance, the
nuisance
should be stopped, not the right to use the servitude area.
[26]
It is common cause that, after the construction of the wall, its
presence will prevent vehicles from traversing the major part
of the
servitude area, as only one vehicle at a time will be able to gain
access to the commercial building on the property of
H.R.J.
Properties. Upon exiting, only one vehicle at a time will be able to
leave. Two way traffic will come to an end.
[27]
Given the fact that H.R.J. Properties conducts business in its
commercial building, it is obviously vital that vehicles should
have
access to its building. In fact, one may safely assume that vehicular
access is just as important, as pedestrian access.
[28]
Mrs Mohammed has specifically designed the angled section of the wall
to afford vehicular access over that area of the servitude
area which
extends approximately 4,5 meters to the south of the letter B. Her
purpose is to allow vehicles easier access into the
commercial
building. The above photograph shows that, if a wall or pillar was
erected at B, such wall or pillar would severely
impede vehicular
access into the commercial building, because the letter B is situated
approximately in front of the door of the
commercial building.
[29]
The
contention of Mrs Mohammed that the right of way is only for
pedestrians, and not vehicles, is unconvincing, because by her
own
admission she wishes to grant vehicular access to a part of the
servitude area which is about 4,5 meters in length.
[9]
[30]
There is another important feature of the servitude right of way that
should be considered. At present, access to the servitude
right of
way area is afforded along the total length of the eastern boundary
of the servitude. Put differently, a pedestrian and
vehicle may enter
the servitude area at any place along the whole of the eastern
boundary of the servitude area. The servitude
does not limit access
to only the northern or southern boundary of the servitude area. But
once the proposed wall has been erected,
no entrance by a pedestrian
or vehicle will be permitted along the eastern boundary of the
servitude area – save for the
area extending southerly for a
distance of 4,5 meters from the letter B.
[31]
The construction of the wall will obviously prevent vehicular access
to about 13,8 meters of the servitude area. A material
part of the
servitude area will be obstructed. Two way traffic will not be
possible.
[32]
The
servitude is described in the title deeds as a “right of way”.
It is not described as a “passage”, which
would probably
have suggested that the servitude would be for pedestrians only.
According to Voet,
[10]
a
“right of way” includes “walking” and
“driving”. Given the facts of this matter, the
servitude right of way is in my view clear. It includes the right of
pedestrians and vehicles to make use of the whole servitude
area. The
right of way does not exclude vehicles.
[33]
The proposed wall will effectively and practically prevent vehicles
from utilising the largest part of the servitude area.
Therefore, the
erection of the proposed wall will materially diminish the servitude
rights of H.R.J. Properties. It follows in
my view that such conduct
would be unlawful and therefore H.R.J. Properties is entitled to an
interdict preventing Mrs Mohammed
from erecting the wall.
Review
of the decision to approve building plans
[34]
I now turn to consider the question whether the approval of the
building plans should be reviewed and set aside.
[35]
On 21 October 2016 the attorneys of H.R.J. Properties sent a letter
to the City to advise it that it would be incorrect and
in violation
of the right of way to allow Mrs Mohammed to build the proposed wall.
The primary objection to the proposed wall was
that it would obstruct
vehicular access and would negatively affect the value of the
property of H.R.J. Properties.
[36]
Mrs Mohammed’s attorneys responded to the letter of 21 October
2016 by
inter alia
informing the City that there would be “no
unreasonable interference” with the rights of H.R.J.
Properties, and that
vehicular access will not be obstructed.
[37] On 9 March 2017 the
attorneys of H.R.J. Properties addressed another letter to the City
in which they
inter alia
stated that the objective of the
servitude is to facilitate vehicular access to the building of H.R.J.
Properties and the proposed
wall would therefore defeat the purpose
of the servitude. They further contended that the proposed wall would
constitute an unreasonable
infringement of their client’s
servitude rights.
[38]
On 7 July 2017 Mr Craig Rolfe, the acting building control officer
with delegated powers in terms of section 6 (4) of the National
Building Regulations and Building Standards Act, No. 103 of 1977
(“the Building Act”) produced a memorandum, which
he
addressed to Mr Benito Cogill.
[39]
In the memorandum Mr Rolfe
inter alia
stated the following:
“
I am unable to
find satisfying factors indicating that the proposed building will
probably or in in fact derogate from the value
of adjoining or
neighbouring properties.
”
[40]
Mr Rolfe
then concluded his memorandum
by stating that he had considered all the aspects listed in sections
6 and 7 of the Building Act,
and he therefore recommended that the
building plans of Mrs Mohammed be approved.
[41]
On the same day, on 7 July 2017, Mr Benito Cogill approved the
building plans.
[42] In support of this
application, H.R.J. Properties relies on an affidavit of Mr Rees
Heggie who is a professional associated
valuer. His affidavit
explains that the erection of the proposed wall will amount to a
decrease of R 380 000.00 in the capital
value of the property of
H.R.J. Properties. His opinion is predicated upon the following :
[42.1] there will be a
diminished width for access into the yard; and
[42.2] there will be a
diminished circulation space for parking and general efficiency in
logistics; and
[42.3] there will be
diminished and impeded access to the roller shutter door used as
loading access.
[43]
Mr Heggie further concludes that, should the proposed wall be
erected, H.R.J. Properties would suffer a net annual rental income
loss amounting to R 36 337.00.
[44]
Mrs
Mohammed does not rely on a professional valuer to gainsay the
opinion of Mr Heggie. She does, however, rely on a letter
[11]
by Seeff estate agents which was apparently addressed to her son. The
letter does not deal with the question whether the construction
of
the wall will reduce the value of the property of H.R.J. Properties
and there is no confirmatory affidavit by Seeff.
[12]
It follows that not much reliance can be placed on the letter by
Seeff.
[45]
Although Mrs Mohammed contends that Mr Heggie has misinterpreted the
servitude, his evidence to the effect that there will
be a material
derogation in value of the property of H.R.J. Properties, should the
wall be erected, is not seriously challenged.
There is no reason why
the opinion of Mr Heggie should be rejected.
[46]
I turn to consider the relevant part of section 7 (1) of the Building
Act. It provides as follows:
“
7.
Approval by local authorities in respect of erection of
buildings
(1) If a local
authority, having considered a recommendation referred to in section
6 (1) (a)-
(a) is satisfied that
the application in question complies with the requirements of this
Act and any other applicable law, it shall
grant its approval in
respect thereof;
(b) (i) is not so
satisfied; or
(ii) is satisfied that
the building to which the application in question relates-
(aa) is to be erected
in such manner or will be of such nature or appearance that-
(aaa) the area in
which it is to be erected will probably or in fact be
disfigured thereby;
(bbb) it will probably
or in fact be unsightly or objectionable;
(ccc) it will probably
or in fact derogate from the value of adjoining or neighbouring
properties;
(bb) will probably or
in fact be dangerous to life or property,
such local authority
shall refuse to grant its approval in respect thereof and give
written reasons for such refusal:
”
[47]
In
Trustees
of the Simcha Trust v Da Cruz and Others; City of Cape Town v Da Cruz
and Others
[13]
the Constitutional Court
inter
alia
considered
the proper interpretation of section 7 (1) (b) (ii) (aa) of the
Building Act. In that case the building control officer
wrote:
“
I can find no
reason to be satisfied that the proposed building would disfigure the
area
.”
[48]
The
Constitutional Court held
[14]
that the correct formulation of the reasons should have been “
I
am satisfied
that
the area will
not
be
disfigured”. The Court further held that in terms of section 7
(1)(b)(ii)(aa) of the Building Act, the local authority
must be
satisfied that none of the disqualifying factors are present.
[15]
[49]
When regard is had to the memorandum of Mr Rolfe, it is clear that he
was not positively satisfied that none of the disqualifying
factors
are present. The statement by Mr Rolfe that “
I am unable to
find satisfying factors indicating that the proposed building will
probably or in fact derogate from the value of
the adjoining or
neighbouring properties
”, is in my view not the correct
approach. The correct approach which he should have adopted, was to
determine that he was
positively satisfied, on a balance of
probabilities, that any of the listed factors
would not
apply.
[50]
In
Walele
v City of Cape Town
[16]
the Constitutional Court held that the local authority must be
positively satisfied that there are no disqualifying factors present.
In applying the principles enunciated in
Walele
and Simcha Trust
,
I am of the view that the acting building control officer was not
positively satisfied that there are no disqualifying factors
present.
[51]
If regard is had to the affidavit of Mr Heggie, it is clear that the
erection of the proposed wall will involve a material
derogation from the value of the property of H.R.J. Properties.
Therefore, the building plans of Mrs Mohammed should not have been
approved. In approving the building plans, both Mr Rolfe and Mr
Cogill were materially influenced by an error of law in that they
misunderstood the requirements of section 7 (1) of the Building Act,
and they did not follow the principles of
Walele
and
Simcha
Trust.
[52]
All
administrative action must be lawful, reasonable and procedurally
fair. I find that the decision in terms of which the building
plans
were approved, was unlawful and so unreasonable that no reasonable
person would have approved the building plans. It follows
in my view
that the approval of the building plans should therefore be set aside
in terms of the provisions of PAJA.
[17]
Order
[53]
In the result, I make the following order:
[53.1] The decision taken
on 7 July 2017 by the building control officer of the City of Cape
Town, in terms of which building plans
were approved for a wall in
respect of Erf […], Cape Town at C Street, Woodstock under
plan approval number 97508637 and
plan no. BP/0000070317314/2017, is
reviewed and set aside.
[53.2] The first
respondent is interdicted from constructing a wall in the applicant’s
servitude right of way as set out in
the diagram SG No 2772/2003 and
attached to the applicant’s founding affidavit as annexure
“JS4”.
[53.3] The first and
second respondents are ordered to pay the costs of this application
jointly and severally, if the one pays
the other is to be absolved,
subject thereto that the second respondent’s liability for
costs shall be limited to costs against
it on an unopposed basis.
______________________
WESLEY VOS, AJ
[1]
The return of service indicates that service of the application was
effected on 4 October 2017
[2]
T63510/2015 dated 4 November 2015
[3]
T45710/2004 dated 20 May 2004
[4]
Book VIII – Title 3, volume 2, p465
[5]
2010 (4) SA 586 (SCA)
[6]
2009 (3) SA 5
[7]
At paragraph 8
[8]
1975 (1) SA 279
(A) at 301 - G
[9]
Measured in a southerly direction from B
[10]
See footnote 4
[11]
Dated 9 February 2018
[12]
Represented by Mr Craig Algie
[13]
[2018] ZACC 8
[14]
At paragraph 24
[15]
At paragraph 26
[16]
[2008] ZACC 11
[17]
Promotion of Administrative Justice Act, 3 of 2000
. The relevant
sections are:
section 6
(2) (d) (error of law),
section 6
(2)
(e) (iii) (relevant considerations were not considered) and
section
6
(2) (h) (decision unreasonable).