Van Rensburg NO and Another v Equus Training and Consulting CC and Another (3649/06 & 1440/07) [2009] ZAECPEHC 50 (25 September 2009)

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[2009] ZAECPEHC 50
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Van Rensburg NO and Another v Equus Training and Consulting CC and Another (3649/06 & 1440/07) [2009] ZAECPEHC 50 (25 September 2009)

FORM A
FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISIONJUDGMENT
PARTIES:
Wilma Emmerentia van Rensburg N.O vs Equus Training and
Consulting
Case Number:

1440/07
High Court:

Eastern Cape Division
DATE HEARD:

25/09/09
DATE DELIVERED:
20/10/09
JUDGE(S):
Froneman
J
LEGAL REPRESENTATIVES –
Appearances:
for the Applicant(s):
Adv Eksteen and Adv Euijen
for the Respondent(s):   Adv  van der Linde and

Huissamen
Instructing attorneys:
for
the
Applicant(s):
De Villiers and Partners
for the Respondent(s):   Greyvenstein, Rushmere Inc
CASE INFORMATION –
Nature of proceedings.
Topic:
Key Words:
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE – PORT ELIZABETH
Case Nos: 3649/06 & 1440/07
In the matter between
WILMA EMMERENTIA VAN RENSBURG NO First Applicant
PHILIPPUS STEPHANUS VAN RENSBURG
Second Applicant
and
EQUUS TRAINING AND CONSULTING CC First Respondent
NELSON MANDELA METROPOLITAN
MUNICIPALITY
Second Respondent
-------------------------------------------------------------------------------------------------------
JUDGMENT
-------------------------------------------------------------------------------------------------------
Froneman J.
[1]
This judgment deals
with two separate applications, but the two matters are interrelated
and concern similar issues. The issues
arise from the existence of
restrictive title conditions registered against the first
respondent’s property (‘the neighbouring
property’) and some 71
other properties in a designated block in Summerstrand, Port
Elizabeth. The applicants sought different
relief in the two
applications. For the sake of convenience I will refer to the first
as the ‘interdict proceedings’,
1
and to the second as the ‘demolition proceedings’
2
.
[2] Both the interdict proceedings and the
demolition proceedings were brought on the basis of transgressions of
the restrictive
title conditions, albeit different in nature in
respect of each instance. The interdict proceedings were postponed
sine die
when the first respondent gave an undertaking that it would cease its
unlawful construction pending the finalisation of an application
by
it for the removal of the restrictive title deed conditions in terms
of the Removal of Restrictive Conditions Act 84 of 1967
(‘the
Removal Act’). The first respondent was ordered to launch the ‘said
application’ within 60 days of the court order,
failing which the
applicants had to set the interdict proceedings down again for
hearing. The initial demolition proceedings resulted
in the setting
aside of the second respondent’s approval of building plans and a
finding that the construction of the enlarged
dwelling on the
neighbouring property infringed the restrictive title conditions. The
demolition order sought in those proceedings
stood over for
determination until the outcome of ‘the application for the removal
of the restrictive title conditions’ was
made known to the
respondents.
[3] The applicants contend that the applications
for the removal of the restrictive title conditions have been
finalised and thus
now seek an interdict in the one case and a
demolition order in the other. The first respondent contends that
what was envisaged
in both proceedings was finalisation on the
substantive merits of the removal applications and not rejection of
the applications
on procedural issues, as has been the case.
[4] I do not intend to deal with the submissions
of the first respondent in any detail. In my judgment it is
abundantly clear that
the removal applications contemplated in both
sets of proceedings have been unsuccessful in one way or another. The
fact that further
applications under the Removal Act are in the
pipeline may be a factor in considering whether to grant the relief
sought for by
the applicants or not, but it is certainly no bar to
the applicants setting the matters down for determination as
envisaged under
the earlier court orders.
The interdict proceedings
[5]
What was originally
sought by the applicants was an interdict to prevent the first
respondent from building over the building line
adjacent to the
street frontage of the neighbouring property, as well as for an order
to demolish the structures already built
which encroached over the
building line. It is clear that the first respondent indeed built in
contravention of the restrictive
title condition. It is also clear
that the ultimate purpose of the construction was to enable the first
respondent to conduct a
guesthouse on the property.
[6] The first respondent opposes the orders sought
to be confirmed by appealing to the discretion the court has to
refuse an interdict.
In this regard reference was made to the fact
that the first respondent had obtained special consent to operate a
guesthouse; that
other guesthouses were being operated in the area
too; and that removal of the restrictive conditions may yet
eventuate. A court
does not have a general discretion to suspend the
operation of an interdict where the conduct complained of is
established as unlawful.
Such discretion can only arise under
exceptional circumstances (
United
Technical Equipment Co v Johannesburg City Council
1987(4)
SA 347 (T) at 347G). In my judgment no such exceptional circumstances
exist here. The first respondent has consistently,
over an extended
period of time, sought to advance its own interest in operating a
guesthouse without any proper regard to the
fact that it was doing so
unlawfully until it had successfully applied for the removal of the
restrictive title conditions (
Enslin v
Vereeniging Town Council
1976(3) SA 443
(T)). In my judgment it would undermine the court’s role as
“enforcer of the law” (see
United
Technical Equipment
, above, at 347
G-H), if someone could use its own extended unlawful course of
conduct and the consequences thereof, such as the
construction and
cost of completed work, as a reason why the law should not take its
ordinary course (cf.
Enslin
,
above, at 452H). This goes for the demolition part of the order as
well, as I will presently indicate in relation to the other

application.
The demolition proceedings
[7] In an earlier matter,
Van
Rensburg and another NNO v NMMM and others
2008(2) SA 8 (E), I granted a demolition order in circumstances where
the owner of the offending buildings had continued with its
unlawful
conduct. In that case I also held that a claim for damages could not
properly compensate the applicants for the loss of
privacy and use of
their property in accordance with the intended character of the area,
as evidenced by the content of the restrictive
conditions. Similar
considerations arise in the present matters. I am unable to discern
any material differentiating features or
circumstances which would
justify a different approach in the present matters insofar as the
grant of demolition orders are concerned.
Striking out applications
[8] In view of the conclusion I have come to I
consider it unnecessary to give any specific relief in relation to
the applications
for striking out. It should be apparent from what I
have already stated that I consider much of the allegations about,
for example,
the use by others of guesthouses, the approval of other
removal applications and the present character of the area, as
inconclusive
or irrelevant. No material prejudice to the applicants
would follow from not striking these allegations.
Order
[9]
It is ordered
that:
1.
In case
no. 3649/2006
1.1
The first
respondent is interdicted from continuing with any building
activities on erf 102, Summerstrand, that encroach over the
building
line adjacent to the street frontage of the erf (which is stipulated
in the title deed of the erf as being not closer
than 30 cape foot
(9,45 metres) to such street frontage);
1.2 The first respondent demolish all structures erected on erf
102, Summerstrand, which so encroach over the said building line;
1.3 The first respondent is ordered to pay the costs of the
application, such costs to include the costs of two counsel.
2.
In case
no. 1440/2007
2.1 The respondents take all necessary steps to
demolish the buildings which were erected on erf 102, Summerstrand,
in accordance with plans approved by
the second respondent on 23 February 2007;
2.2 The first respondent is ordered to pat the costs of the
application, such costs to include the costs of two counsel.
J.C.Froneman
Judge of the High Court.
1
Case No. 3649/06.
2
Case No. 1440/07.