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[2019] ZAGPJHC 556
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Rietvleiview Homeowners Association v Bapela and Others (82770/14) [2019] ZAGPJHC 556 (22 March 2019)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 82770/14
NOT REPORTABLE
OF INTEREST TO OTHER
JUDGES
REVISED
22/03/2019
In
the matter between:
THE
RIETVLEIVIEW HOMEOWNERS
ASSOCIATION APPLICANT
And
MATSOBANE
B.BAPELA FIRST
RESPONDENT
SECHABA
R.
BAPELA SECOND
RESPONDENT
CITY
OF TSWANE LOCAL MUNICIPALITY THIRD
RESPONDENT
JUDGMENT
COLLIS
J:
INTRODUCTION
1.
In
the present application, the applicant seeks interdictory relief and
a mandamus to compel the first and second respondents to
comply with
inter
alia
the
title deed conditions binding on the immovable property owned by the
respondents.
[1]
The relevant
immovable property is known as Portion […] (a portion of
portion […]) of the Farm […], Registration
Division
J.R., Province of Gauteng, being an immovable property of one (1)
hectare in extent
(the
immovable property),
for
any purpose other than for rural occupation purposes at a density of
one (1) dwelling per hectare and it is situated within
the estate.
2. The
present application is opposed by the second respondent only.
3. The
applicant is the homeowners association of the Rietvlei View Country
Estate,
inter alia
tasked with the management of the Rietvlei
View Country Estate for the benefit of the homeowners and to enforce
compliance with
the title deed conditions by each owner.
4. Homeowners
that purchase immovable property in the Rietvlei View Country Estate
do so in order to enjoy the
benefits of rural country living whilst
being close enough to town to be able to enjoy the benefits of city
living. Homeowners,
purchase properties to build homes and to enjoy
this lifestyle.
5. The
development is a rural type development and the title deed of each
immovable property has certain conditions
prescribed in the title
deeds of such properties in order to maintain the essence of what the
estate is, for the benefit of all
such property owners and members of
the Rietvlei View Country Estate.
OWNERSHIP
6.
On
or about 31 October 2003, the first and second respondent became the
registered owners of the immovable property in terms of
a deed of
transfer number T […].
[2]
The ownership to the immovable property is not denied by the second
respondent, albeit that she stipulates that the property was
acquired
by her when she was still married to the first respondent and is now
divorced from him.
[3]
TITLE
DEED CONDITIONS
7. The
title deed registered in their names had certain conditions contained
in it which the registered owners
are by law required to comply with.
The following are the material terms of the deed of transfer relevant
to the present application:
7.1 The
transfer was subject to the conditions imposed by the Directorate of
Resource Conservation of the National
Department of Agriculture and
enforceable by the Kungwini Local Municipality (the predecessor of
the third respondent, which was
incorporated as part of the third
respondent on 1 July 2001).
7 1 .1 The
immovable property is to be used for rural occupation purposes at a
density of 1 dwelling per hectare;
(condition 1X (a))
7.2 The
transfer was subject to the conditions and restrictions imposed by
and enforceable by Towndev (Pty) Ltd,
(condition X), its successors
in title or assigns (the applicant being the successor in title and
assign of Towndev (Pty) Ltd in
terms of the cession and assignment of
rights referred to already namely:
7.2.1 Building
plans (including septic tanks and French drains or septic tanks and
wetland system ("Reedbed
system") must be submitted to the
Local Authority, the third respondent, for approval before any
buildings may be erected;
7.2.2. Sewerage
shall be by septic tanks and French drains or septic tanks and
wetland system ("Reedbed
system") which the owners must
install at their own cost and comply with all the specifications and
requirements of the Local
Authority, the third respondent:
7.2.3 The
owners and any other persons shall not live on the property prior to
completion of the main
dwelling and the issuing of an occupation
certificate by the Local Authority, the third respondent;
7.2.4 No
iron, prefabricated, steel or wooden structures shall be erected on
the property;
7.2.5 The
owners shall at all times be obliged to maintain the pavement and
sidewalk areas adjoining the
property in a neat and tidy condition;
7.2.6 No
prefabricated walling or prefabricated fencing is permitted;
7.2.7 The
immovable property shall only be utilised for agricultural
activities. No industrial, retail
or wholesale activities of any
nature whatsoever are permitted. No advertising sign boards are
permitted;
7.2.8 No
sheds or storerooms shall be erected prior to commencement of
construction of main dwelling;
7.2.9 The
owners shall comply with the regulations and requirements of the
National Housing Board Registration
Council and Act 95 of 1998;
Housing Consumers and Protection Measures Act of 1998 and any other
legislation which may affect building
operations in the future;
7.2.10 The
immovable property shall at all times be maintained in a neat and
tidy condition by owners;
7.2.11
No
tents or caravans are permitted to be occupied on the immovable
property.
[4]
THE
BREACH
8.
The
applicant alleges that the second respondent has repeatedly acted in
breach of the title deed conditions and has acted unlawfully
and
despite repeated requests and demand the infringing owners have
failed and or refused to remedy the situation.
[5]
9. What
follows is a brief overview of such infringements by the second
respondent:
9.1 The
infringing owners commence with construction prior to 2012 on the
immovable property and the dwelling was
partially constructed.
Currently there exist no approved plans for the erected structures
with the third respondents.
9.2 After
2012 the infringing owners expanded the original structure, with the
purpose of starting a guesthouse
operation. Construction continued
without approval of any building plans. Albeit that plans were later
submitted in reaction to
a complaint received by the third
respondent, such building plans to date have not been approved by the
third respondent.
9.3 The
infringing owners thereafter started conducting a business by renting
rooms to numerous occupants. Around
the same time the immovable
property was also used for conducting church services over weekends
which consequently attracted a
number of persons on the property over
weekends.
9.4 On
25 May 2012, the applicant's erstwhile attorneys De Villiers and
Pheiffer directed a notice to the infringing
owners to comply with
the title conditions and included a copy of the title conditions as
part of such notice. Apart from signing
for receipt of the letter the
second respondent acknowledge receipt thereof and requested an
extension of time within which to
respond. As no further response was
thereafter received from the infringing owners, a further
correspondence was addressed to them
by the newly appointed attorneys
of record for the applicant. Respondent (mother of child) together
with Elisa arrived in South
Africa on 4 October 2018.
GROUNDS
IN OPPOSITION
10. In
response to the allegations of infringements the second respondent
merely denies that she has not complied
with the title deed
conditions.
11.
Furthermore,
she asserts that the applicant only came into being during 2014 and
denies that its members gave consent for the applicant
to conclude a
cession agreement with Towndev (Pty) Ltd, its previous
successor-in-title.
[6]
12. The
applicant to the founding affidavit has attached the written cession
agreement, which agreement was concluded
on 30 July 2014 between the
applicant and Towndev (Pty) Ltd. Furthermore, in its replying
affidavit, the applicant sets out that
at a general meeting held by
its members on 28 November 2013 concerns were raised by homeowners
regarding the role of Towndev in
enforcing its tile deed conditions
transgressions. Pursuant to such meeting the management committee met
on 8 May 2014 and an executive
decision was taken to approach the
Sinovich group to obtain cession of their rights, which ultimately
took place on 30 July 2014.
13. Having
regard to the minutes of meetings filed of record and the cession
agreement this Court is satisfied
that the decision to conclude a
cession agreement was validly taken and supported by members of the
applicant.
14.
In
her answering affidavit, the second respondent sets out that during
2010 she had building plans drawn up which plans were submitted
to
the third respondent for approval and which were ultimately approved
on 8 June 2011.
[7]
During the
construction of the main house however some deviations to the main
house was made from the original plan and a revised
plan was
thereafter submitted to the municipality for approval. To date she
has not received an approval on her revised plans despite
having made
several enquires with the third respondent.
[8]
It should be noted that no proof is annexed to the answering
affidavit as confirmation that the second respondent has submitted
revised plans to the third respondent.
15. If
one considers the title deed conditions it clearly stipulates, that
no building may be commence without
prior approval of plans by the
third respondent. By the second respondents own admission therefore,
she deviated from her original
submitted plan without first obtaining
prior approval on her revised plan from the third respondent prior to
erecting her building
in accordance with her revised plan.
16. It
therefore cannot be contended by her, that she at the very least is
not in contravention of this condition
contained in her title deed.
17. The
second respondent further concedes to having erected a borehole on
her property during 2013. This she embarked
upon on realising that
other owners also had boreholes erected on their properties and more
specifically white owners and in this
regard she contends that the
applicant applies selective enforcement of its conditions. With
reference to the borehole, the applicant
alleges, that the drilling
on the property of the second respondent is unlawful as it poses a
significant risk to the area of the
estate. In this regard the
applicant attached to its founding affidavit annexure "RV1 8 "
which is a letter received
from the third respondent stipulating that
unless prior written approval from the municipality is obtained no
owner or tenant of
the applicant shall sink any wells or boreholes
thereon as same is prohibited in terms of the Peri-Urban Town Areas
Town Planning
Scheme (1975).
18. The
second respondent in her answering affidavit is silent as to whether
prior to her erection of the borehole,
she had obtained written
approval from the third respondent. Her assertion that she erected a
borehole as other homeowners had
also erected boreholes and that no
steps were taken against them is simply devoid of any merit. You
cannot argue because others
are in contravention of a law and no
consequences is visited upon them, that it therefore gives you
permission to proceed to be
in contravention of the very same law.
19.
The
applicant further alleges that second respondent is utilising the
immovable structure for commercial purposes by renting out
rooms to
approximately 20(twenty) other people. This is in breach of the title
conditions which provides that the immovable property
shall only be
utilised for agricultural activities. Furthermore, the 5
th
September 2014, the Welbekend South African Police Service carried
out a raid on the immovable property and 18 (eighteen) illegal
immigrants were arrested on the property.
[9]
20.
In
this regard the second respondent in her answering affidavit denies
that she is renting out rooms on her immovable property but
significantly, she does not deny the raids and arrest having been
carried out by the Welbekend South African Police Service.
[10]
21. If
such a high number of persons were found on her property during the
raid carried out by the police, the
only inference to be drawn is
that indeed these persons were found to be staying there at her
premises. Therefore she was in contravention
of a condition of her
title deed, which only permits her to utilised the property for
agricultural activities.
22.
The
applicant also contends that the second respondent has breached and
continues to breach the title deed conditions that provides
that the
immovable property shall at all times be maintained in a neat and
tidy conditions by the owners.
[11]
In her answering affidavit the second respondent merely denies the
breached complained of and puts the applicant to proof thereof.
THE
LAW ON INTERDICTS
23.
Interdicts
are orders of court which normally prohibit (prohibitory interdicts)
or compel (mandatory interdicts) the doing of a
particular act to
avoid injustice or hardship.
[12]
A mandatory interdict is also available to remedy the effects of
unlawful action already taken.
24. In
order to succeed in obtaining a final interdict, the applicant must
establish:
24.1 a
clear right;
24.2 an
injury actually committed or reasonably apprehended; and
24.3
the
absence of similar or adequate protection by any other ordinary
remedy.
[13]
The
clear right
25.
In
order to establish a clear right, the applicant must prove on a
balance of probability, that it is legally entitled to prohibit
the
respondent.
[14]
Whether the
applicant has a right is a matter of substantive law, which
onus
the
applicant carries. The right which the applicant must prove is also a
right which can be protected and it is one which exists
only in law
be it at common law or statutory law.
[15]
This Court in paragraph 13
supra
had
concluded that a valid cession agreement was concluded between the
applicant and Towndev (Pty) Ltd. By virture of the second
respondents' ownership in the applicant, she became a member of the
applicant, which is obliged to enforce the relevant title deed
conditions as the representative body of its members.
[16]
The
injury
26.
The
word 'injury' must be understood in the wide sense to include any
prejudice suffered by an applicant as a result of an infringement
of
his rights.
[17]
The injury
does not have to be capable of pecuniary evaluation. When the
wrongful act giving rise to the infringement has already
occurred, it
must be of a continuing nature or there must be a reasonable
apprehension that it will be repeated. The test for apprehension
is
an objective one.
[18]
This
means that, on the facts presented to it, the Court must decide
whether there is any basis for the entertainment of a reasonable
apprehension by the applicant.
[19]
27. On
the objective facts presented this Court is satisfied, that the
applicant has established on a balance of
probabilities, that an
injury has been committed and that there are reasonable apprehension
for further injury. By way of example
to date no approved building
plans were issued for the structure presently erected on the
immovable property and as such a further
apprehension exists.
No
other adequate remedy
28.
An
applicant for an interdict must establish that there is no other
alternative remedy available. The general rule is that the courts
will not grant an interdict, if the applicant can be adequately
compensated for the injury complained of by an award of damages.
Damages however will not be considered to be an adequate remedy when
there is a continuing violation of the applicant's rights.
[20]
It has been found that when the respondent is a man of straw and the
applicant is less likely to recover damages from the respondent
then
our courts are more likely to grant an interdict.
[21]
As mentioned previously, the applicant upon noticing a violation of a
title deed condition, at various intervals had made several
and
repeated demands to the second respondent to remedy such breach.
Despite the demands the second respondent persist with her
unlawful
conduct. Having regard to what is set out in the various affidavits,
in this regard, this Court is satisfied that the
applicant has no
other adequate remedy available to it.
ORDER
29. In
the result the following order is made:
29.1 The
application is granted as per prayers 1, 2, 3, 4, 5, 6, 7, 8 and 9 of
the Notice of Motion.
29.2 The
second respondent is further ordered to pay the costs of the
application on an Attorney and Client scale.
COLLIS
J
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA
Appearances
:
Appearing
on behalf of for the Applicant :
Mr. S. Mafuyeka
Attorney
for the Applicant :
Mafuyeka & Associates Inc.
Appearing
on behalf of the Second Respondent : Adv. D. Mosoma
Attorney
for the Second Respondent :
Mohlolo Mashego Attorneys
Dates
of Judgment :
22 March 2019
[1]
Notice of Motion pages 1-6
[2]
Founding affidavit para 18 p 12
[3]
Answering affidavit para 5 & 14 p 194 & 205
[4]
Founding affidavit para 19, Annexure "RV4" page 13
[5]
Founding affidavit para 20 page 15
[6]
Answering affidavit para 15 page 206
[7]
Answering affidavit 5.11 page 196
[8]
Answering affidavit para 5.14 page 196
[9]
Founding affidavit para 38.1 and 38.2 page 21
[10]
Answering affidavit para 23 page 210
[11]
Founding affidavit para 45 page 27
[12]
Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Road,
Durban
[1986] ZASCA 6
;
1986 (2) SA 663
(A) at 676
[13]
Setlogelo v Setlogelo 1914 AD 221
[14]
Starke NO v Schreiber
[2001] 1 ALL SA 167
(C) at 174
[15]
Per
Friedman
AJP in Minister of Law and Order v Committee of the Church Summit
1994 (3) SA 89
(B) at 98 and the authorities there cited.
[16]
Founding affidavit para 50 & 51 page 38
[17]
Minister of Law and Order; Bophuthatswana v Committee of the Church
Summit of Bophuthatswana
1994 (3) SA 89
(B) at 98H-I
[18]
Ex Parte Lipschitz 1913 CPD 737
[19]
Janit v Motor Industry Fund Administrators (Pty) Ltd
[1994] ZASCA 110
;
1995 (4) SA 293
(A) at 304 H-J
[20]
Rivas v Premier (Transvaal) Diamond Mining Co Ltd 1929 WLD 1
[21]
Aetiology Today CC t/a Somerset Schools v Van Aswegen
1992 (1) SA
807
(W) at 815G-H