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[2010] ZAGPJHC 69
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Dainfern Valley Home Owners Association v Falconer and Others (2009/51286) [2010] ZAGPJHC 69 (10 August 2010)
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
Not reportable
CASE NO 2009/51286
DATE 10/08/2010
In the matter between
DAINFERN
VALLEY HOME OWNERS ASSOCIATION
APPLICANT
and
LINDSAY
FALCONER
FIRST
RESPONDENT
CITY
OF JOHANNESBURG METROPOLITAN MUNICIPALITY
SECOND
RESPONDENT
THE
MINISTER OF SOCIAL DEVELOPMENT OF THE REPUBLIC OF SOUTH AFRICA
THIRD
RESPONDENT
J U D G M E N T
VAN OOSTEN J:
The applicant is a
voluntary association duly constituted in respect of the townships
known as Dainfern Extensions 16 (excluding
certain erven) and 19 (the
estate). Its aim and object in terms of its constitution is:
‘…
to
promote, advance, and protect the communal interest of the owners of
all erven in the township of Dainfern Valley, in particular
ensuring
acceptable aesthetic, architectural, environmental, security, and
living standards in the said area.’
All registered owners of properties in
the estate in terms of the constitution, are automatically members of
the applicant. The
first respondent (Ms Falconer or the respondent)
has been the registered owner of a property in the estate (the
property) since
29 March 2006 and she accordingly since that date, is
a member of the applicant. Ms Falconer is a qualified nursery school
teacher
and she has been conducting a playgroup facility known as
Valley Kids Play Group
(the playgroup) at the property since
the beginning of 2006.
The first and third respondents have
been joined in these proceedings as nominal interested parties only
and no relief is sought
against them. In argument before me it was
conceded that their joinder in these proceedings was superfluous but
nothing turns on
this.
The applicant seeks interdictory
relief against the respondent. The interdict is aimed at preventing
her from operating or conducting
the playgroup on the property until
she has duly complied with certain statutory requirements and other
formalities. Those are
the following: firstly, the consent of the
second respondent for the use of the property for purposes of
conducting a crèche,
nursery school or play group thereon,
secondly, registration of the playgroup as a place of care in terms
of s 30 of the Child
Care Act 1983, thirdly, the granting of the
necessary permit in terms of Section 100 of the Public Health By-Laws
of the second
respondent and fourthly, the consent of the residents
of neighbouring properties to that of Ms Falconer to the use of the
property
for purposes of conducting a crèche, nursery school
or playgroup thereon.
The respondent has raised three points
in limine.
The first is that an alternative dispute resolution
is provided for in the applicant’s constitution which she
should have
followed. The point is short-lived. Clause 22 of the
constitution provides for arbitration in respect of ‘any
dispute arising
out or in connection with this constitution’
.
As it will become apparent later in the judgment the issues
arising in this matter can in no way be classified as ‘disputes
arising or in connection with the applicant’s constitution’
.
Secondly, a misjoinder in respect of the third respondent is
alleged. It was argued that both the Minister of National Health and
Welfare and the Minister of Education should have been joined in
these proceedings instead of the Minister of Social Development.
Counsel for the respondent readily conceded, in my view rightly so,
that the joinder of any one or more of the Ministers I have
referred
to, was not necessary for a proper adjudication of this application.
The final point
in limine
hedged on the assumption that the
applicant in seeking to enforce compliance with the statutory
requirements, attempts to usurp
the functions of the relevant
authorities. The argument is premised on a misconception of the true
nature of the relief sought
by the applicant: it is plainly not to
enforce those requirements but rather to prevent the respondent from
conducting the playgroup
until she has duly complied with those
requirements. There being no merit in any of the points
in limine
they were dismissed and the argument proceeded on the main relief
sought.
At the outset it is necessary to state
that it is common cause between the parties that the statutory
requirements I have referred
to firstly, are of application and must
be complied with and secondly, that they have not been complied with.
Ms Falconer recognises
and accepts the responsibility to comply with
the requirements. She states that she has already over a period of
time taken certain
steps in order to comply with the requirements.
She further explains that there are no reasons to believe that the
necessary authorisation
will not be granted and that it is merely
bureaucracy and red tape preventing or delaying the final issuing of
letters of compliance
or consent from the relevant authorities.
I do not consider it necessary to
traverse all the steps the respondent has taken thus far in order to
obtain the necessary statutory
sanctions. Suffice to say that there
is nothing before me to show that any insurmountable obstacles exist
to thwart her attempts.
I will return to this aspect later in the
judgment.
The contentious requirement remaining
concerns the consent of the residents of the neighbouring properties.
This has become the
subject of much debate before me. The applicant
has dealt with this aspect somewhat clumsily in the papers: in the
applicant’s
founding affidavit reference is made to a general
meeting of the members of the applicant which was held on 28 August
2008.
At the meeting the deponent (who is the general manager
of the applicant) states it was decided by the members of the
applicant
in order to protect the communal interests of the owners of
all erven in the estate, that all nursery schools, playgroups or
crèches
operating within the Dainfern Valley Estate were to
comply with certain requirements, one of which is relevant for
present purposes.
It is the following:
‘
All the
neighbours must give their approval for the operation of the nursing
school;’
The minutes of this particular meeting
however, on this aspect, reflects something entirely different. There
the following is recorded:
‘
10.
ADOPTION
OF POLICY REGARDING BUSINESS ACTIVITIES OF JUNGLE TOTS AND DAINFERN
VALLEY KIDS: NURSERY SCHOOLS OPERATING IN DFV
This item was for a policy to be
obtained for operating Nursery Schools and not tabled for approval at
meeting. Mrs J Bull gave
her reasons for these to be allowed to
operate in the estate. She has 14 children in her playschool from
8:30-12 noon; there is
no traffic problem and no noise. She has
obtained a petition from all neighbours stating that excessive noise
was not generated
by having the playschool in their area.
Consideration to be given to:
a)
Registration with Health
authorities.
b) Fully compliant with legal
requirements;
c) Hours of operation: proposed
8:00am- 5.00pm weekdays only;
d) Nursery school or playschool;
e) Major number of attendees should
be from the estate;
f) Discussion to take place with
neighbours and get their approval;
g) Number of children; maximum30
h) HOA must be indemnified against
any injuries sustained at these schools.
i) Property’s
main use to be residential – as a residence.’
In her response to the inconsistency
Ms Falconer concludes that the version on behalf of the applicant
that a policy was adopted
at the meeting in the terms I have referred
to, is ‘simply false’. In the replying affidavit and with
reference to
the apparent inconsistency, the deponent says he was
personally present at the meeting, that the policy in fact was
adopted but
that this aspect was incorrectly recorded in the minutes.
Counsel for the respondent sought leave to respond in a further
affidavit
to the applicant’s version now proffered in the
replying affidavit. Having given careful consideration to this aspect
I have
decided not to accede to the request. I prefer to adopt a more
pragmatic approach which is aimed at finalising this matter in the
interest of all parties. I will for present purposes, accept that the
respondent is bound by the consent requirement: I have no
reason to
doubt the honesty of the applicant’s general manager, Mr
Anderson, who is the deponent to the affidavits on behalf
of the
applicant. The notion of Mr Anderson attempting to mislead this Court
concerning the events at the meeting at which a large
numbers of
members of the applicant were present (69 in total), is too far
fetched to deserve further consideration. I have not
been told
whether the respondent was present at the meeting. Had she not
attended one would have expected her to have made enquiries
as to
what was discussed and decided at the meeting as this concerned the
very business in respect of which she needed approval.
The respondent
in any event, did act in accordance with the policy: she has obtained
the approval in writing of the owners of at
least three neighbouring
properties which are annexed to the applicant founding affidavit.
Finally, and perhaps decisively, I am
of the firm view that the consent of the respondent’s
neighbours in any event ought
to be obtained if regard is to be had
to the communal rights and interests of the owners and residents in
the estate. They undoubtedly
have an interest in the respondent’s
application for approval. Their interests require recognition and
protection which practically
can be achieved by either having this
application served upon them thereby affording them the opportunity
to respond thereto, or
by ordering the respondent to obtain their
consent as she has already started doing in the case of three of her
neighbours. Again,
the practical and most cost effective way of
dealing with these aspects, in my view, is simply to order
compliance.
In conclusion, the respondent at this
stage has still not complied with the requirements referred to in the
applicant’s notice
of motion. Technically speaking she is
conducting the business illegally. The question now arising is
whether the drastic
remedy of an interdict would be appropriate in
all the circumstances of this case. I do not think so. Counsel
for the respondent
advanced compelling considerations why the
granting of an interdict at this stage would not be appropriate and
submitted that the
respondent should rather be afforded the
opportunity to finalise matters within a stated period of time. I
agree. The respondent
has conducted the playgroup for a number of
years. There is nothing before me to show that she is doing so
against the wishes of
any of the members of the applicant. On the
contrary the applicant and its members in principle seem to have no
objection in principle
against the respondent conducting the
playgroup. Their only justifiable concern is compliance with the
statutory requirements.
The respondent’s continuation with the
playgroup for a further period in order to afford her a reasonable
opportunity to
finalise compliance with the requirements will not
cause any prejudice to either the applicant or its members.
In the result I make the following
order:
1.
The matter is postponed
sine
die
.
The first respondent must comply with
the requirements set out in prayers 1.1, 1.2, 1.3 and 1.4 of the
notice of motion within a
period of two months from the date of this
order, failing which the applicant may enrol this matter again for
hearing for the relief
sought in the notice of motion.
Costs are reserved.
Counsel
for the applicant:
Adv
HF Oosthuizen
Counsel
for the first respondent:
Adv
GR Wynne