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[2020] ZAWCHC 91
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Carstens v Squires and Another (4405/2019) [2020] ZAWCHC 91 (24 August 2020)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 4405/2019
In
the matter between
PAUL
CHRISTOPHER CARSTENS
APPLICANT
And
BEVERLEY
ANNE SQUIRES
FIRST
RESPONDENT
JOHN
SQUIRES
SECOND
RESPONDENT
Coram:
Rogers J
Heard
:
10 June and 11-12 August 2020
Delivered:
24 August 2020
JUDGMENT
Rogers
J
[1]
The applicant is the owner
of a residential property situated at […] Road, Lakeside. The
first respondent is the owner of
an adjacent residential property
situated at […]. I shall refer to these properties as the
Carstens and Squires properties
respectively. The second respondent,
now deceased, was the first respondent’s husband. Since he was
not the owner or co-owner
of the Squires property, he did not have a
legal interest in the proceedings. I shall thus refer to the first
respondent simply
as the respondent.
[2]
The applicant launched
these proceedings in March 2019 for orders compelling the respondent
to repair and maintain a retaining wall
situated just on her side of
the common boundary; to cut and remove overhanging branches; and to
cut and remove all trees and tree
roots encroaching onto the Carstens
property or having the potential to cause damage to the Carstens
property or the retaining
wall. The application was opposed.
[3]
The matter first served
before me on 10 June 2020. A few days earlier, the respondent
delivered an application seeking leave to
file an affidavit by a
civil engineer, Mr Andrew Cowie, as well as a supplementary affidavit
by the respondent. The application
to file these further affidavits
was opposed.
[4]
Leaving aside these
supplementary affidavits, the position as at 10 June 2020 was that
although both sides had attached expert reports
to their respective
affidavits, including reports from civil engineers (Mr Cowie’s
report was attached to the respondent’s
affidavit of 22 May
2019), there were no affidavits from the experts themselves. I raised
this point with counsel. I also told
them that there appeared to be
material disputes between the engineers which would be difficult if
not impossible to resolve without
oral evidence, and that it might
also be desirable to conduct an inspection
in
loco
.
[5]
I thus suggested that
counsel consider the possibility of a short postponement so that
affidavits by the engineers could be filed,
whereafter there would be
oral evidence, limited to cross-examination (on the basis that the
affidavits and any attached reports
would serve as the experts’
evidence in chief). Counsel agree. The matter stood down so that they
could prepare a draft order,
which was finalised a few days later.
The engineer whom the applicant intended to call seems not to have
cooperated, as a result
of which there was a further delay.
Eventually the applicant filed an affidavit and report by a new
engineer, Mr Pierre de Villiers.
Mr Cowie likewise filed an
affidavit, which seems to be identical to the one which the
respondent previously applied to have admitted.
[6]
In terms of the agreed
order, the case was to be heard on 11-12 August 2020. Proceedings
started at 09:00 on 11 August with an inspection
at the properties.
Apart from the legal representatives, the applicant and respondent
and their respective engineers were present.
At the conclusion of the
inspection, I asked counsel to explore whether the engineers might
find common ground acceptable to the
parties.
[7]
Although the oral evidence
was scheduled to start at 11:00, I was notified by counsel that they
wished to stand the matter down
so that a resolution of the merits
could be further discussed. As the day progressed, I was told that
the parties were hopeful
of a settlement. In the early evening I was
sent an agreed draft order which resolved the merits. However, the
parties could not
come to terms on costs. Accordingly, on 12 August I
heard oral argument on costs.
[8]
Quite correctly, counsel
did not suggest that I should hear oral evidence on the merits for
purposes of deciding the question of
costs (
Gamlan
Investments (Pty) Ltd & another v Trilion Cape (Pty) Ltd &
another
1996
(3)
SA 692
(C) at
700F-710C). I must, on the material at my disposal, make a proper
allocation as to costs.
[9]
The draft order reads as
follows (‘Property One’ and ‘Property Two’ in
the order are references to the Carstens
and Squires property
respectively):
1.
The
applicant’s expert, Mr Pierre Francois de Villiers (‘De
Villiers’) and the first respondent’s expert,
Mr Andrew
Cowie (‘Cowie’), shall prepare a joint method statement,
by no later than 24 August 2020, setting out the
necessary and
required repairs to be made to the retaining wall (‘the wall’)
including repairs to the exposed foundation
and/or bedding between
the properties situated at […] Lakeside … (‘Property
One’) and […] Lakeside
… (‘Property Two’).
2. De Villiers and
Cowie shall agree on and appoint an independent structural engineer
by no later than 11 September 2020, to supervise
and/or oversee that
the repairs are made in accordance with the joint method statement.
3. The parties shall
agree on and appoint a suitably qualified and independent stone mason
and/or builder to conduct the necessary
and required repairs in
accordance with the method statement, by no later than 8 October
2020.
4. Insofar as the
method statement provides for necessary and required repairs to be
made to the wall on Property One such repairs
shall be for the first
respondent’s account.
5. Insofar as the
method statement provides for repairs to be made to the exposed
foundation and/or bedding on Property One, and
insofar as those
repairs have been occasioned by the applicant’s conduct
according to the method statement, such repairs
shall be for the
applicant’s account;
6. Upon completion
of the repairs, the first respondent shall produce the appointed
structural engineer’s written confirmation
of the wall’s
structural integrity and that same does not pose a threat to Property
One.
7. Upon completion
of the repairs, the applicant shall produce the appointed structural
engineer’s written confirmation that
the exposed foundation
and/or bedding no longer poses a threat to the structural integrity
of the wall.’
[10]
The draft order provides a
sensible
modus operandi
for resolving the
dispute about the retaining wall. It does not, however, indicate to
what extent repairs will in fact be needed.
That lies in the future.
The draft order may be thought to reflect a recognition by the
respondent that the retaining wall is at
least in need of some
repair. On the other hand, the order reflects a compromise. Just as
the applicant may feel that the agreed
order gives him less than he
might have got had the court decided the merits after hearing
evidence, so the respondent may feel
that she has given more than
that which would have been ordered (if anything) following a trial of
the merits. If one or other
of the parties had been told that a
settlement on the merits would be used against them when it came to
decide the question of
costs, one or both of them might have declined
to compromise the merits.
[11]
In the circumstances, I do
not think that decisive weight should be accorded to the draft order
in deciding costs.
[12]
In regard to overhanging
branches, these were removed long before the inspection was held.
Three trees, whose roots were alleged
by the applicant and his
experts to be growing through or under the wall and impairing its
stability, have now been completely
removed. The respondents said in
her affidavit that the trimming of branches was something she did on
an ongoing basis. There is
evidence that the applicant began
complaining about overhanging branches in October 2017. Although this
elicited some response,
photographs attached to the founding
affidavit
[1]
suggest that there were still some overhanging branches, though it is
not altogether easy to judge the precise extent.
[13]
Two of the trees removed
after institution of the proceedings were
ficus
trees, and it is not
in dispute that they have aggressive root systems known to cause
damage to building structures. Mr Cowie opined
that the trees were
not yet of sufficient size to compromise the retaining wall, but it
appears likely that sooner or later they
would have had to be
removed. Whether, however, there was a case for their immediate
removal is doubtful.
[14]
Messrs de Villiers and
Cowie were in agreement that the retaining wall was a ‘gravity
retaining wall’, ie one in which
the gravity exerted on lower
stones by higher stones, coupled with a measure of interlocking,
provides stability. They differed,
however, on the significance
mortar. Mr de Villiers considered that the wall could not rely purely
on gravity and interlocking,
and that mortar was thus required to
bind the stones together. Mr Cowie, by contrast, considered the
mortar to be primarily aesthetic,
though at the wall’s base the
bottom stones were embedded in concrete.
[15]
Mr de Villiers regarded
the mortar as weak and inadequate. Recent superficial repairs had not
remedied the deficiency, with cracking
already visible. In some
places the mortar had broken away, leaving voids susceptible to
intrusion by roots, plants and water.
In some areas the boulders or
stones were fairly loose, with the possibility of falling out during
heavy rainfalls.
[16]
His overall conclusions
were the following. The wall design as such is adequate. Mortar, if
properly applied, would have a shear
strength much larger than the
forces it needed to withhold. For the reasons summarised above, the
wall is currently in a poor condition.
It is not in danger of
collapsing in its entirety. However, in those parts of the wall where
the rocks are already loose, there
could be localised failures. The
continued ingress of tree roots and water would lead to further
deterioration. The remedial action
taken by Mr Cowie ‘was
somewhat sufficient to restrain any current threat’ but
‘inadequate as a once-off, long-term
solution’. The wall
would still have to be maintained and repaired regularly, and the
‘effort and cost’ in so
doing ‘could be spared by
the simple once-off solutions I recommend’.
[17]
The remedial work he
recommended was the following. First, the three trees with aggressive
root system should be removed. (This
was done after the institution
of proceedings.) Second, the wall should be taken down segmentally
and reconstructed with the same
stones but using a class (iii)
mortar. Third, a soil drainage system should be installed. And
fourth, the retained side of the
wall (ie the side facing the Squires
property) should be painted with a bituminous paint. (On the
evidence, his fifth recommendation,
relating to the water tank’s
foundation, was implemented prior to institution of proceedings.)
[18]
Mr Cowie happens to have
lived in […] Road for many years. He says that the retaining
wall was built in about 1985. He conducted
an inspection in June
2018, and certain remedial work was done on his recommendation and
under his supervision, such work having
been completed by April 2019.
[19]
As part of his
investigation, he dug inspection pits along the length of the wall on
the Squires side in order to expose the face
of the wall against
which retained ground was piled. (The corresponding part of the wall
on the Carstens side is above ground level,
because of the different
levels of the properties.) He found the wall to be ‘well
founded along its length’. It was
founded on ‘good
natural ground’, with the larger boulders forming the base. The
wall uses its own weight to resist
horizontal forces induced by the
retained ground. The wall does not have any concrete foundation save
for a shallow bedding layer.
[20]
He caused the inspection
pits to be backfilled with a cement-stabilised sand mix, which would
further help to strengthen the wall.
Mr Cowie criticised the reports
of Mr de Villiers and of the applicant’s previous experts,
because conclusions had been drawn
without the benefit of inspection
pits. These, he said, were critically important in the conclusions he
reached.
[21]
As I have said, he
disagrees with Mr De Villiers’ view that the mortar is of
structural significance. On the contrary, he
says that the inside
face of the wall (ie on the Squires side) is completely porous, with
little or no mortar rendering. This is
advantageous because the wall
does not come under any
water-table
-induced
pressure. Because both properties slope down the mountain side to […]
Road, natural drainage occurs; water does
not dam up against the
base. No weep holes or drainage system are needed.
[22]
Most of the cracks and
gaps in the mortar were, he says, repaired before the application was
launched, though the work could not
be completed without access to
the Carstens property. In that regard, the applicant’s
attorneys on 20 November 2018 wrote
to the respondent’s
attorneys regarding remedial work already undertaken, stating that
the respondent had seen ‘fit
to trespass’ onto the
Carstens property, and that permission had to be sought from the
applicant. In fairness, the letter
did not suggest that permission
would not be forthcoming, and the applicant’s telephone number
was furnished that purpose.
[23]
My own assessment, judging
the matter simply on the papers as supplemented by my observations
during the inspection
in
loco
, is the
following. This wall has stood for 35 years. Mr de Villiers does not
say that it is in immediate danger of collapse. He
seems to regard Mr
Cowie’s remedial work as sufficient in the short term, but
prefers his own solutions as more cost-effective
in the long term.
[24]
Here and there a tree root
in the wall could be seen. These did not appear to be alive, and may
even over time have come to provide
some stability where otherwise
there would have been a void. The mortar is indeed cracked, and it is
probably so that in places
it would not take much to pull it away. I
accept that as a result of this, a stone might here or there become
detached on the Carstens
side of the property.
[25]
I was shown a smallish
rock which had allegedly fallen off the wall and was lying at the
base on the Carstens side. During the inspection,
Mr de Villiers
handled a largish boulder in the wall on the Carstens side. The
boulder came away. My impression was that he had
applied gentle but
not substantial outward force. This indicates that the mortar in that
part of the wall was in poor condition.
On the other hand, this
boulder has apparently been in place for 35 years without falling.
Unless the wall comes under horizontal
pressure on the Carstens side
(as opposed to downward pressure), one would not expect boulders to
fall out of their own accord.
The fact that this large boulder became
detached did not have any discernible effect on the surrounding part
of the wall.
[26]
The ground that is
retained by the wall is packed against the wall on the Squires side
of the wall. That is where one would expect
the wall to experience
its greatest horizontal pressure. Mr Cowie had the benefit of
inspecting the retaining face of the wall
when he exposed the ground
by way of inspection pits. I have no reason to reject his conclusion
that the wall is well founded along
its length.
[27]
The applicant sought
relief in respect of the retaining wall on the basis that he
reasonably apprehended, due to deficiencies in
the wall, that there
might be a significant collapse which would cause a large mass of
retained ground to move from the Squires
property onto his own
property, with resultant damage to his house. The relief he claimed
was the implementation of option 1, alternatively
option 2, contained
in a civil engineering report of 30 August 2018.
[28]
Option 1 entailed the
following: the employment of a stone mason to remove the cracked
mortar and roots, and to undertake repairs,
this to be done annually
or as necessary; the installation of weep holes, with bundles of
stone and bidum behind the wall; removing
the water tank which was
located close to the wall; removing all trees and shrubs with
aggressive root systems; repairing and providing
adequate stormwater
management behind the wall; installing a surface channel for water;
and checking the Squires swimming pool
for leaks that could cause an
ingress of water. (Option 2 was more drastic.)
[29]
I cannot find on the
papers that the applicant would probably have obtained substantially
this relief if oral evidence had been
heard. The same is true if the
applicant were to have applied to amend his notice of motion in line
with Mr de Villiers’
recommendations. I cannot find that the
wall was, when the proceedings were launched, in danger of imminent
collapse to an extent
that would have caused any appreciable harm on
the Carstens property.
[30]
On the other hand, the
applicant was entitled to insist that the part of the wall facing
onto his property should be kept in sufficient
repair that stones do
not fall out. I cannot find that the applicant refused permission for
the respondent to carry out remedial
work on the Carstens side of the
property. The applicant was entitled to insist that consent be
obtained before people came onto
his property. The evidence does not
suggest that consent was requested but refused.
[31]
I also think it likely
that if the respondent had not removed the three trees previously
mentioned, the wall might in due course
have become more precarious.
The respondent was tardy in responding to the applicant’s
insistence that she remove overhanging
branches, and this was not
completely remedied by the time the application was launched.
[32]
The respondent can also be
criticised for not having responded to requests from the applicant’s
attorneys to give details
of her structural engineer and his
recommendations. Mr Cowie only produced a written report May 2019,
and this was only made available
to the applicant in early June 2019.
[33]
At least one plausible
outcome of the case is thus that while the applicant may, following
oral evidence from the engineers, have
established that when he
launched the application he was entitled to some modest relief, he
may substantially have failed in requiring
extensive and expensive
work to be done on the retaining wall.
[34]
In the circumstances, and
having regard to the compromise which the parties have reached on the
merits and to the fact that they
will still need to tolerate each
other as neighbours, I think the fairest outcome is that the parties
should bear their own costs.
[35]
As to the wasted costs of
10 June 2020, those costs would have been incurred whether or not the
respondent had brought an application
to adduce further affidavits.
It became unnecessary to adjudicate that application, because the
main case could in any event not
proceed in the absence of affidavits
from experts on both sides and after at least some oral evidence.
[36]
I thus make the following
order:
(a) By agreement the draft order
attached as ‘X’ is made an order of court.
(b) There is no order as to
costs.
O L
Rogers
Judge
of the High Court
Western
Cape Division
APPEARANCES
For
Applicant
R
van Wyk
Instructed
by
Keith
Jenkings Attorneys
7
Sunninghill Road
Wynberg
For
Respondent
G
Goosen
Instructed
by
Haydn
Elmes & Elmes
‘
The
Corner House’, 26 Hope Street
Gardens
[1]
See the photographs taken in early march 2019 at record 50 and 52.