About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2013
>>
[2013] ZAGPJHC 18
|
|
Roseveare v Katmer, Katmer v Roseveare and Another (2010/44337, 2010/41862) [2013] ZAGPJHC 18 (28 February 2013)
REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
Case no: 2010/44337
SHAUN
ROSEVEARE
..................................................
Plaintiff
and
YUKSEL
KATMER
.........................................................
Defendant
Case no: 2010/41862
YUKSEL
KATMER
........................................................
Applicant
and
SHAUN
ROSEVEARE.
................................................
First
Respondent
SHAUN ROSEVEARE
N.O
.........................................
Second
Respondent
JUDGMENT
WILLIS J:
[1] This trial has been referred to by
counsel for both parties as the ‘cherry tree case’. It is
an apt description.
The trial action in fact concerns two cases that
were consolidated and heard in a single trial. In the case of Botha
v Dos Santos
and Another
1
I delivered a judgment concerning ‘sonde met die bure’
2
in a neighbouring suburb of Parktown. C.J. Langenhoven, aided by his
fictional character, Herrie, immortalised this expression
of ‘sonde
met die bure’. One cannot help wondering whether Langenhoven
could have imagined that his description of
relations with one’s
neighbours would be considered so apt in this disputed issue which
focuses upon a cherry tree standing
on the boundary of next-door
neighbours living in the northern suburbs of Johannesburg.
[2] The plaintiff’s property,
15B Fifth Street, Houghton Estate, is owned by a trust of which he is
the sole trustee. The
trust and Shaun Roseveare have been cited by
the defendant as joint parties. It will be simpler to refer to Shaun
Roseveare as
‘the plaintiff’ and his co-plaintiff as ‘the
trust’. The plaintiff’s next-door neighbour is the
defendant.
She lives at no. 15. The defendant subdivided her property
and sold a vacant stand to the trust (represented by the plaintiff).
The plaintiff built a house at the aforementioned address. The
defendant sold the property to the plaintiff in December 2006. The
property owned by the trust is more formally known as Portion 2 of
Erf 2499, Houghton Estate, the defendant’s as the Remaining
Portion of Erf 2499, Houghton Estate.
[3] The defendant convincingly
described how she was rudely disturbed on the morning of 8 October
2010 by the sound of the plaintiff’s
workers were knocking down
the wall between the plaintiff’s property and her own. After a
hectic altercation involving the
plaintiff, the plaintiff’s
workers and the defendant, work on the demolition of the wall was
temporarily halted. The defendant
telephoned her attorney, who
phoned the plaintiff’s builder and asked him to stop knocking
down the boundary wall. On the
same day the defendant brought an
urgent application, under case no. 2010/41862, for an interdict to
restrain the plaintiff from
proceeding with the demolition. The
plaintiff opposed the application and brought a counter-application
to restrain the defendant
from being a nuisance, inter alia, by
keeping noisy peacocks in her garden which frequently trespassed on
to his property.
[4] At court that afternoon the
parties reached an interim agreement in terms of which the plaintiff
would stop knocking down the
boundary wall. Later, the plaintiff
brought a separate action, under case no. 44337/2010, against the
defendant in which he claimed
certain relief against her based upon
her encroachment on his property. By agreement between the parties
the defendant’s
urgent application (together with the
counter-application) and the encroachment action were consolidated
into a single trial action.
During the December 2010 that part of the
wall knocked through was rebuilt by the defendant. At the end of the
trial the plaintiff
sought to amend his particulars of claim. That
amendment was opposed by the defendant. The proposed amendment would
have no bearing
on the ultimate decision in this case. Therefore, no
decision is made in regard to the plaintiff’s application to
amend.
[5] The unchallenged and incontestable
evidence of Mr Stephen Shires the land surveyor who gave evidence as
an expert for the plaintiff
was that the wall built as a boundary
between the properties of the plaintiff and the defendant encroached
upon the plaintiff’s
property by a width, the extent of which
constituted 0.5 to 2 metres. The total surface area amounts to some
20 square metres.
That boundary wall had been built at the behest of
the defendant before she sold the property to the plaintiff. The
plaintiff convincingly
described how he had only discovered the
encroachment when the builder, who had built his house, could not
obtain a true reading
from the boundary in order to construct certain
features of the plaintiff’s house. This evidence of the
plaintiff was corroborated
by that of the land surveyor as well as
that of the builder, Mr William Hawkins.
[6] The boundary wall contains a
‘kink’ which surrounds a large cheery tree. It is about
15 to 20 metres high. The cherry
tree has, by reason of this ‘kink,’
been appropriated into the property of the defendant. The evidence of
the land
surveyor is that cherry tree falls within the surveyed
property of the plaintiff, but only just. The roots of the cherry
tree extend
into the property of both parties. This was also clearly
apparent when an inspection in loco was held at both properties at
the
request of the parties from both sides.
[7] During the inspection in loco this
‘kink’ in the wall surrounding the cherry tree was
patently unsightly when viewed
from the plaintiff’s property.
This was especially the case when the ‘kink’ was seen
from the upstairs bedroom
areas, including the upper balcony. On the
defendant’s side of the property, there is a forest of trees in
front of the cherry
tree such that its trunk and the surrounding
‘kink’ are barely visible, particularly if one sits on
the defendant’s
verandah, sipping coffee and nibbling upon
Turkish delights (and other similar delicacies) to which the full
contingent of the
court, including the parties, together with
counsel, pupils at the Bar, attorneys and clerks were treated during
the inspection.
3
[8] The cherry tree in question is
much loved by both the plaintiff and the defendant. The plaintiff
said in evidenced that he would
willingly agree to an order
restraining him from cutting it down. The defendant said that when
she died or if she ever sold her
property, she would be very happy
for the plaintiff to have the tree. In the popular imagination,
chopping cherry trees down borders
on being heinous. Perhaps this has
to do with Mason Locke Weems immortalising the story of the first
president of the United States
of America, George Washington,
chopping down a cherry tree and, when confronted by his father,
confessing: ‘Father, I cannot
tell a lie; Pa, you know I can’t
tell a lie. I did it with my hatchet’.
4
[9] The agreement of sale concluded
between the parties contains an Annexure ‘A’ which
contains the following, upon
which the defendant relied:
1...(irrelevant portions deleted) The
maintenance agreement referred to above (relating to the entrance
gate-5th Street frontage,
the driveway, the driveway walls and shared
services) shall be registered by the owners of portion 1/2449 and
portion 2/2449 Houghton
Estate on the title deeds of both properties
and shall be in force in perpetuity...
2. The Purchaser agrees to brick up
the part of the existing wall on the east side of portion2/2449
Houghton Estate where there
is presently an inter-leading door...
3...
4. The Purchaser is aware that the
east boundary wall of portion 2/2449 Houghton Estate has a slight
deviation to protect a boundary
tree and accepts the boundary wall as
it stands.
[10] The defendant relies on these
clauses in Annexure ‘A’ to contend that the plaintiff had
agreed that the ‘kink’
in the boundary wall around the
cherry tree would remain in perpetuity. Mr Cohen, who appeared for
the plaintiff submitted that
the clause 4 was void for vagueness.
Even if it is not void for vagueness it means, at best for the
defendant, merely that the
plaintiff would not call upon the
defendant to rectify the ‘kink’. It does not mean, as
does the maintenance agreement
in clause 1, that the plaintiff would
have to endure this kink in perpetuity.
[11] The plaintiff said that he had
visited the defendant on two occasions to discuss straightening the
wall where the cherry tree
stands. He had understood her to have
agreed to the existing wall being knocked down and being
straightened. The second occasion
was a few months before the fateful
day on which the urgent application had been brought. On the second
occasion, he went to visit
the defendant with his builder, Mr
Hawkins.
[12] Mr Hawkins was less certain than
the plaintiff as to the nature of the agreement reached. The
defendant’s daughter had
been at the house at the time. Both
the defendant and her daughter were cross–examined at length
about the question of an
agreement having been reached for the wall
around the cherry tree to be brought down. The defendant’s
daughter, Arzu, conceded
that she may not have been present
throughout the discussion as she had a young child requiring
attention. Arzu was clear that,
in her mind, knowing her mother as
she did, no such agreement could have been reached. The defendant was
convincingly adamant that
she had not reached the agreement contended
for by the plaintiff. The best that can be said for the plaintiff is
that he misunderstood
the defendant. Her command of English is not
excellent. She availed of an interpreter when she gave evidence.
[13] The plaintiff said that the
peacocks, which he was convinced said belonged to the defendant, had
damaged his expensive vehicles
by pecking at them when they saw
themselves reflected in the rear-view mirrors and highly polished
metal surfaces of his motor
cars. He said that they continually
caused a mess in his garden and disturbed his peace with their cries.
The defendant’s
case was that the peacocks were feral, having
escaped from other neighbours’ properties and that she had no
control over
them. It is common cause that keeping peacocks without
permits constitutes a contravention of the relevant municipal
by-laws. When
we held the inspection in loco, a large ostentation of
peacocks paraded around the defendant’s garden. Their wings
appeared
clipped. If one is may judge from the manner in which, with
heads tilted to one side, they waited expectantly for tasty morsels
from her sumptuous garden table, they were quite tame. The population
of peacocks in her garden was not ‘broadly representative’
of the species: there were uncomfortably too many males. One need not
even be ‘politically correct’ to come to this
conclusion.
[14] The defendant is an
entrepreneurial young man. He has made and is likely to continue
generate considerable wealth for himself
through his air-freight
business that operates throughout the continent of Africa. The
defendant protested that she is in straitened
financial
circumstances. This, she said is reason that she subdivided her
property in Houghton and sold off two plots. It seems
that it may be
more accurate to describe her financial circumstances as
‘constrained’ rather than ‘straitened’.
[15] It has been clear since the case
of Hornby v Municipality of Roodeberg-Maraisburg and Arthur
5
that the court has a discretion to award damages for an encroachment
rather than a demolition thereof. I am in respectful agreement
with
the approach of Griesel J in Trustees, Brian Lackey Trust v
Annandale
6
that a court has a wide, general discretion – in appropriate
circumstances – to award damages instead of demolition
in
respect of encroachments.
7
[16] If one travels along the boundary
wall between the respective properties of the plaintiff and the
defendant, the encroachment
up until one reaches the ‘kink’
around the cherry tree is so minor that it would not make sense to
order its demolition.
The ‘kink’ around the cherry tree
is so intrusive that it must be pulled down. Travelling further north
along the boundary
wall, after the ‘kink’, until the end
of the plaintiff’s property, the encroachment is not
insignificant in terms
of the degrees of longitude by which it
‘trespasses’ into the plaintiff’s property. The
length of the wall,
after the ‘kink’, until the end of
the property is not more than two metres.
[17] Having regard to the principles
of reasonableness and fairness set out in Regal v African Superslate
(Pty) Limited,
8
I am satisfied that the peacocks coming into the plaintiff’s
garden are a nuisance for which he is entitled to redress.
[18] What is to be done? The nature of
the dispute between the parties is similar to those which arise in
the Small Claims Court.
All that is different is that the litigants
in this case have more money than the typical claimant in the Small
Claims Court. Scott
Fitzgerald is reputed to have said to Ernest
Hemingway, ‘You know, Ernest, the rich are different from you
and me’.
The story goes that Hemingway replied, ‘Yes.
They’ve got more money’.
9
As someone who was, for many years, both a commissioner in the Small
Claims Court
10
and a mediator at both IMSSA (the Independent Mediation Service of
South Africa) and the CCMA (the Commission for Conciliation,
Mediation and Arbitration) before my appointment to the bench, I have
applied my mind to the question of whether a little ‘judicial
imagination’ may be appropriate in making the order in this
case. Is there a way in which one can resolve this dispute that
is
correct and defensible as a matter of law but is one which, as an
instrument of conflict resolution, ‘sonde met die bure’
may be transformed into ‘vrede met die bure’?
11
[19] In Kent v Transvaalsche Bank
12
Innes CJ said:
The court has again and again had
occasion to point out that it does not administer a system of equity,
as distinct from a system
of law. Using the word ‘equity’
in its broad sense, we are always desirous to administer equity; but
we can only do
so in accordance with the principles of Roman-Dutch
law. If we cannot do so in accordance with those principles, we
cannot do so
at all.
13
I, like Griesel J, am mindful of the
admonition expressed by Van den Heever JA in Preller v Jordaan:
14
’
n Regter wat volgens sy gesonde
verstand, na goeddunk en sonder regsreëls kan oordeel te vrese
is as honde en slange.
15
(More to be afraid of than snakes and
dogs is a judge who decides matters not according to law but rather
his own sense of what
is right and fair.)
[20] In Cosmos (Pvt.) Limited v
Phillipson
16
Young J, after extolling the neighbourly principle of toleration set
out by the court in the case of Malherbe v Ceres Municipality
17
and interpreting it to mean ‘give and take’ and ‘live
and let live’
18
said:
19
It seems to me that in this field the
judgment does not subsume a particular case under a given law or
concept, but rather that
the appropriate category is determined
according to certain principles which may sometimes produce an
antinomy.
20
In the case of adjoining owners the relevant principles are, I think,
expressed in the legal maxims: (i) qui jure suo utitur neminem
laedit;
21
(ii) sic utere tuo ut alienum non laedas;
22
(iii) prohibetur ne quis faciat in suo quod nocere possit alieno;
23
(iv) de minimis lex non curat
24
or, as it is more often expressed in this field, lex non favet votis
delicatorum.
25
Young J went on to say:
In my judgment, modern conditions
require the exercise of a wide discretion in the adjustment of
neighbour relationships, and there
is power in the court to meet the
situation.
26
I respectfully agree with Young J.
This judgment was approved by Hattingh J in Rand Waterraad v Bothma
en ’n Ander.
27
Hattingh J’s judgment was referred to with approval in Lombard
and Another v Fischer an Another
28
and Trustees, Brian Lackey Trust v Annandale.
29
The principles of our Roman-Dutch common law allow for a broadly
equitable solution in a case such as this.
[21] The plaintiff said he would have
no objection to there being an interdict restraining him from
chopping down the cherry tree.
An order to this effect should calm
the fears of the defendant. The plaintiff had originally been quite
happy, at his own expense,
to pull down the wall and straighten it
around the cherry tree. As he seems to have ample means to do so now,
it is best that he
should do at his own expense. This will spare him
relying on the defendant. Moreover, as the defendant claims to be
short of funds,
this will be equitable. The plaintiff said in
evidence that he would be quite happy to erect the wall on a lintel
to protect the
roots of the cherry tree.
[22] In order to protect himself in
the event that he sells his property to someone else, the plaintiff
should register a servitude
to cover the very small remaining
encroachment. My order shall enable him to do so. Insofar as the
removal of the peacocks is concerned,
my experience over the years
with the City of Johannesburg is that they are unlikely to attend to
the matter within a reasonable
time. The order will cater for any
dilatoriness on the part of the City of Johannesburg.
[23] The plaintiff had to come to
court in order to obtain substantive relief. Ordinarily, he would be
entitled to costs. The plaintiff’s
rude awakening of the
defendant on 8 October 2010, justified the defendant’s bringing
of the urgent application. In all the
circumstances, it will be
equitable to order each party to pay his or her own costs in this
dispute.
[24] The following is the order of the
court:
The plaintiff is interdicted from
removing and/or cutting down the cherry tree as depicted by the
symbol “X” on the
attached diagram marked ‘A’
(see overleaf).
The plaintiff may rebuild and
straighten the portion of the existing boundary wall where it
deviates as depicted by the co-ordinates
A, B, C and D on the
attached diagram attached marked ‘A’ (‘the kink’)
at his own cost. The height of
the wall so constructed is to be at
the same height as the existing height of the boundary wall.
The defendant shall remove all trees
and/or branches on her property at her cost, which will interfere
with the orders above.
The portion of the wall to be built
as provided for above shall be constructed and erected on a lintel
to be built above the exposed
roots of the existing cherry tree as
depicted by the letter ‘X’ on the plan attached marked
‘A’ so that
the roots are not damaged.
A wire mesh and/or similar type of
protection is be installed by the plaintiff in the space between the
lintel referred to above
and the ground surface so as to prevent the
ingress and/or egress of animals and/or birds from the plaintiff
property to the
defendant’s property and vice-versa.
Travelling further north along the
boundary wall, after the ‘kink’, until the end of the
plaintiff’s property,
the plaintiff may rebuild and straighten
the remaining length of the wall to remove any encroachment.
The defendant is to give the
plaintiff and/or his building contractors access to her property
insofar as may be necessary to carry
out the aforementioned building
works.
The plaintiff is to register a
servitude in favour of the defendant in respect of the remaining
area of the encroachment on portion
2 of erf 2499, but subject to
the costs of sub-division, including all diagrams and all documents
necessary to effect such servitude
be borne by the plaintiff.
The plaintiff in the exercise his
rights in terms of the by-laws of the City of Johannesburg (Greater
Johannesburg Metropolitan
Council) to ensure the removal of peacocks
and peahens that enter upon his property and, upon the plaintiff’s
request to
the City of Johannesburg to remove the peacocks and/or
peahens that enter upon plaintiff’s property, the City of
Johannesburg
is authorised to do so, and failing them, the SPCA (the
Society for the Prevention of Cruelty to Animals) and failing and
them,
any other similar organisation may so remove the peacocks and
peahens.
Those who remove the peacocks and
peahens as aforesaid should first endeavour to find the peacocks
and peahens good and lawful
homes and may sell them to defray their
reasonable expenses relating to the capture, transport and storage
of the peacocks and
peahens.
The parties are to bear their own
costs in the consolidated action, including all costs previously
incurred in their separate
applications and actions in the current
dispute between them.
DATED AT JOHANNESBURG THIS 28th DAY
OF FEBRUARY 2013
_______________________
N. P. WILLIS
JUDGE OF THE HIGH COURT
Counsel for the Plaintiff: Adv R.G.
Cohen
Counsel for the Defendant: Adv R.J.
Stevenson
Attorney for the Plaintiff: Glynis
Cohen
Attorney for the Defendant:
Marie-Lou Bester
Dates of hearing: 5-8; 14 February
2013
Date of judgment: 28 February 2013
Note:
Attached diagram available in the pdf file.
1
[2005]
ZAGPHC 362
; 31356/04 SGHC
2
Somewhat imperfectly and rather too blandly translated,
this
means: ‘trouble with the neighbours’.
3
The
defendant gave evidence that she is now in her sixties but that in
her youth she had been a
cause célèbre
as a hugely popular singer and entertainer in her home country of
Turkey. Time and chance brought her to Johannesburg in 1999.
She has
settled here. Jo’burgers may be charmed to know that she
considers Houghton to be a rustic idyll. In the opinion
of the
defendant, the grander suburbs of her native Istanbul cannot compare
with Houghton’s tranquil atmosphere. During
the inspection
in
loco
she
showed us photographs of herself with many famous people. I hope
that she will not take it amiss when I say that her popularity
is
quite understandable just by having regard to her beauty. Living in
a beautiful home, surrounded by fine art and antiques,
she is today
a
grande
dame
.
4
Mason Locke
Weems wrote the first biography of George Washington,
Life
of George Washington; with Curious Anecdotes, Equally Honorable to
Himself, and Exemplary to His Young Countrymen
.
The biography was first published in 1800 and was republished 82
times, including translations into French and German. It seems
that,
alas, the story is fabrication. Weems, a pastor, was also a shrewd
businessman with a keen sense of what the public wanted.
The ‘sin’
of telling a lie was that of Weems himself. Weems has probably been
forgiven by subsequent generations
for telling such a good and
memorable story about a hero. Why spoil a good story for the sake of
the truth? See, for example:
http://suite101.com/article/WashintonsCherryTree-a954
5
1918 AD
278
at 296-7. See also the judgment of Innes CJ at 290
6
2004 (3)
SA 281
(C). See also
Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club
2007 (2) SA 40
(C) at 43.
7
At
291H-292B
8
1963 (1) SA
102
(A) at 111F-G; and H
ad
fin
;
112 A-B; 114D-E
9
See, for example,
McCloskey,
D. 2008. ‘You know, Ernest, the rich are different from you
and me’: a comment on Clark’s
A
Farewell to Alms
.
In
European
Review of Economic History
,
Cambridge University Press
12
,
138-148.
10
In our
training as commissioners we were encouraged not to be too
fastidious about legal niceties in the Small Claims Court but
rather
to find broadly equitable solutions.
11
‘
Vrede
met die bure’ means ‘Peace with the neighbours’.
12
1907 TS 765
13
At 774.
Especially useful articles dealing with the legal conundrum created
by encroachments are to be found in the following:
Milton, J.R. L.
1968 ‘The Law of Neighbours in South Africa’. In
Acta
Juridica
123; Cillers J.B. and Van der Merwe C.G.1994. ‘The “year
and a day rule” in South African law: do our courts
have a
discretion to order damages instead of removal in the case of
structural encroachments on neighbouring land?’ In
Tydskrif
vir Hedendaagse Romeins-Hollandse Reg
(
THRHR
)
57
587-595
.
See, also Badenhorst, P.J. Pienaar, J.M. and Mostert, H. 2006
Silberberg
and Schoeman’s
The
Law of Property
,
5
th
Edition, LexisNexis Butterworths: Durban at 121-127.
14
1956 (1) SA
483
(A)
15
At 550G-H;
see Griesel J’s remarks in the case of
Trustees, Brian Lackey Trust v Annandale
2004
(3) SA 281
( C) at 292B
16
1968 (3) SA
121
(R)
17
1951 (4) SA
510
(A)
18
At 125H
19
At 126A-B
20
A legally imperfect, even brittle solution but one which is morally
correct, derived as a matter of grace.
21
A person
who exercises his or her legal rights causes no one any harm (my
translation).
22
Use what is
yours in such a way so as not to harm others (my translation).
23
It is
unlawful to build upon one’s own land in such a way as to
cause distress to another (my translation).
24
The law is
not concerned with trifling matters (my translation).
25
The law does not favour the wishes of the overly fastidious
(my
translation.)
26
At 130A
27
1997 (3) SA
120
(O) at 137J-138b
28
[2003] 1
All SA 698
(O) at 700a-e
29
(
supra
)
at 289B