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[2013] ZAECPEHC 42
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van Rensburg NO and Another v Naidoo NO and Others (2732/2011) [2013] ZAECPEHC 42 (20 June 2013)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – PORT
ELIZABETH)
CASE NO: 2732/2011
DATE HEARD: 13/06/2013
DATE DELIVERED:
20/06/2013
In the matter between
WILMA EMMERENTIA VAN RENSBURG N.O
....................................
1
ST
APPLICANT
PHILIPPUS STEPHANUS VAN RENSBURG
N.O
...............................
2
ND
APPLICANT
and
PERAPANJAKAM NAIDOO N.O
.....................................................
1
ST
RESPONDENT
PURSOTHAM NAIDOO N.O
............................................................
2
ND
RESPONDENT
SHASHI NAIDOO N.O
......................................................................
3
RD
RESPONDENT
ANTHOSH NAIDOO N.O
..................................................................
4
TH
RESPONDENT
NELSON MANDELA BAY
METROPOLITAN MUNICIPALITY
...................................................
5
TH
RESPONDENT
JUDGMENT
ROBERSON J:-
[1] The applicants are the trustees of
the Hobie Property Trust, which owns erf 104 Summerstrand, Port
Elizabeth. The first to fourth
respondents (the respondents) are the
trustees of the Shan Trust, which owns erf 105 Summerstrand. The
parties have been involved
in a long history of litigation and
hopefully the order I intend making in this application will be the
last word in their dispute.
[2] On 3 April 2007, Froneman J
ordered the respondents to demolish certain structures on their
property, which had been erected
in contravention of certain
restrictive title deed conditions.
1
On 20 December 2012 Smith J declared
the respondents to be in contempt of Froneman J’s order and
sentenced each of them to
six months’ imprisonment. The
sentence was not to be implemented if the respondents demolished the
structures within two
months from the date of the order. Smith J’s
order further provided that if the respondents did not demolish the
structures
within that time, the sentences would become operative and
the deputy sheriff was authorised to demolish the structures.
2
[3] The respondents did not demolish
the structures within two months of Smith J’s order. On 20
February 2013 they launched
an application to vary Smith J’s
order to the extent that the sentences would not be implemented if
they had not demolished
the structures within four months of the date
of the order. On 5 March 2013, by agreement Revelas J granted an
order varying Smith
J’s order, in terms of which the sentences
would not be implemented if the respondents demolished the structures
on or before
31 March 2013.
[4] The present application, launched
on 4 June 2013, is for an order declaring that Smith J’s order,
as varied, is now in
operation, although during argument it emerged
that the applicants were prepared to agree to one further extension
of the time
within which the structures were to be demolished, that
is to 15 July 2013, on condition that the court ordered that this be
the
final extension, and that the respondents should pay the costs of
the application on the attorney and client scale, such costs to
include the costs of two counsel. The respondents agreed to an order
extending the time for demolition to 15 July 2013 (this was
asked for
in the answering affidavit) and that such extension be the final
extension. They were however not prepared to pay the
costs of the
application and in any event objected to a punitive costs order and
the costs of two counsel.
[5] As was correctly submitted on
behalf of the applicants, Smith J’s order was not solely for
the benefit of the applicants,
but was also to vindicate the honour
of the court and the legitimacy of the judicial system. Taking into
account the terms of the
order sought and the extent to which the
structures have now, eventually, been demolished, I am of the view
that a relatively brief
extension of time until 15 July 2013 on the
terms proposed, will not do further harm to the honour of the court.
[6] In considering the issue of costs,
it is necessary to have regard to the attitude of the respondents
towards Froneman J’s
order, as found by Smith J in his
judgment. At paragraph [28] he said the following:
“
In
my view it is abundantly clear that the Respondents never intended to
demolish the property in compliance with Froneman J’s
order.
Even after they realised that they had exhausted all their legal
remedies, they were nevertheless determined to avoid compliance
with
the order through political intervention. To this end they have
resorted to enlisting the assistance of various political
office
bearers.”
[7] In her founding affidavit the
first applicant recounted the events which had taken place since
Revelas J’s order. On 28
March 2013 the respondents’
attorney telephoned the applicants’ attorney and requested a
further extension of time.
The request was based on information which
indicated that the municipality intended to pursue a “blanket”
application
for the removal of restrictive title deed conditions
relating to all properties in Summerstrand extension 1. The
applicants’
attorney responded by letter advising that an
application should be brought for such further extension. No
application was brought.
Demolition commenced on 29 March 2013. On 2
April 2013 the respondents’ attorney informed the applicants’
attorney
that “I advised my client (the first respondent) to
comply strictly with the law and she is accordingly demolishing and
regularizing
her affairs on her property.”
[8] Demolition proceeded at a slow
pace and on 8 May 2013 the applicants’ attorney wrote to the
respondents’ attorney
putting the respondents on terms to
complete the demolition by 31 May 2013, failing which an application
to declare Smith J’s
order operative would be brought. The
respondents’ attorney responded by stating that certain
portions of the structures
had been demolished and that the
respondents would continue to comply with Froneman J’s order.
The first applicant deposed
to her affidavit on 4 June 2013 at which
time, so she alleged, and attached photographs in support of her
allegations, considerable
portions of the structures to be demolished
were still in place. One or two labourers, at time assisted by the
second respondent,
were carrying out the demolition.
[9] The first respondent deposed to
the answering affidavit on 11 June 2013. By this time considerably
more demolition work had
taken place, and there was apparently only
one wall of one of the structures remaining. She requested further
time until 15 July
2013 to complete the work.
[10] The first respondent apologised
to the Court “insofar as I have been disrespectful in respect
of these actions”.
She stated that after Smith J’s order
she fully intended to comply with Froneman J’s order. There
were delays because
of the festive season and time was needed to find
a suitable contractor to carry out the work, and to obtain a
demolition permit
from the municipality. It was for these reasons
that a two month extension was sought. The first respondent agreed to
an extension
until 31 March 2013 because she was undergoing emotional
stress and did not properly consider the practicalities of the
demolition.
[11] On 11 January 2013 a quotation
for R380 000 was obtained from the contractors Stu Davidson &
Sons. The first respondent
was advised by their representative that
the machinery would cause damage to the paving on the property and
the common boundary
wall, and that heavy machinery could not be used
to demolish the top storey of one of the structures because it would
endanger
the boundary wall and the remaining portion of the
structure. According to the first respondent, as a result of the
depletion of
their financial resources caused by the ongoing
litigation, the respondents were unable to afford the price quoted by
Stu Davidson
and could not retain their services. Thereafter, on 21
March 2013, labourers were employed to do the work. The work took
longer
than was expected, because some of it had to be performed by
hand and in a confined area. The deadlines of 31 March 2013 and 31
May 2013 could therefore not be met.
[12] The first respondent expressed
surprise at the applicants’ “demands for a quicker pace
of demolition.” According
to her no-one else has complained.
She believed that what had been done so far was sufficient to satisfy
the Court order and added
that the respondents could not afford
further litigation. Accordingly no application for a further
extension was brought. She said
that she had built her hopes on an
application by the municipality for a blanket removal of restrictive
title deed conditions,
the foundation for her hopes being a
resolution passed by the municipality to the effect that a task team
was to assess the impact
of the demolition order. Her attorney was
informed of this resolution on 28 March 2013. However because action
on the part of the
municipality remained uncertain, demolition was
commenced.
[13] The first respondent believes
that the reason why the applicants brought the present application is
because she has brought
an application against several respondents,
amongst whom are the applicants and the municipality, for various
forms of relief flowing
from alleged transgressions of restrictive
title deed conditions.
[14] In my view there is no basis for
finding that this was the reason for the application. If one has
regard to the history of
the matter, since Smith J’s order was
made the applicants have behaved in a fair and reasonable manner
towards the respondents.
Revelas J’s order was made by
agreement, and the applicants themselves offered a further extension
until 31 May 2013, even
though in spite of the extension until 31
March 2013, demolition work did not start until 29 March 2013. Given
these circumstances,
it cannot be said that they resorted to a Court
application with undue haste. It was submitted on behalf of the
respondents that
the application was unnecessary because the
applicants would have seen the demolition taking place. I cannot
accept such a submission,
which I find startling. The extent of
demolition as at 4 June 2013 was not impressive, especially
considering that more than five
months had passed since Smith J’s
order and that two extensions were agreed to by the applicants. The
pace of demolition
appears to have increased significantly following
the service of the notice of motion on the respondents. Further, in
resisting
the application, the respondents asked for an indulgence,
namely yet a further extension within which to comply with Froneman
J’s
order and to vindicate the honour of the Court. The
respondents should have brought an application for an extension of
time. The
applicants have, for the third time, agreed to an
extension. In all these circumstances, it is appropriate that the
respondents
should pay the costs of the application. It also seems to
me that it would be unfair, given the course of events since Smith
J’s
order, for the applicants to have to bear any legal costs
in relation to this application.
[15] There are other considerations.
In spite of the respondents’ assertions of logistical problems
in carrying out the demolition,
it is apparent that up until 29 March
2013 no demolition work was done, and the reason for this was the
respondents’ hope
that the municipality would bring its
“blanket” application. The first respondent said as much.
In my view this attitude
is consistent with Smith J’s finding,
quoted above, that, at least up to that stage, the respondents never
intended to obey
Froneman’s J’s order.
[16] As if this was not enough, in the
application before Revelas J, the respondents made no mention of this
hope. The motivation
for an extension of time in that application
indicated an intention to demolish the structures, but more time was
needed because
of various unavoidable delays, including the obtaining
of a demolition permit from the municipality.
[17] Further still, in her affidavit
in the application before Revelas J, the first respondent said that
she advised Stu Davidson
that its quotation was acceptable and that
it could begin the demolition. In the present application, as
mentioned, she stated
that the respondents could not afford the price
quoted, and had to resort to the hiring of labourers.
[18] In my view these contradictory
aspects to the respondents’ resistance to the application cast
serious doubt on their
bona fides with regard to obeying Froneman J’s
order. Their effect leads me to conclude that the respondents, up
until 4
June 2013, were determined to drag this matter out for as
long as they could. The dramatic increase in the rate of demolition
since
that date demonstrates as much.
[19] In all these circumstances, an
award of costs on the attorney and client scale is justified. I am
also of the view that the
costs of two counsel should be allowed.
This application is the culmination of protracted and at times
complex litigation, which
has wide implications not only for the
parties, but also for the honour of the Court and the administration
of justice.
[20] The following order is made:
[20.1] The order of Revelas J dated 5
March 2013, is varied to the extent that the date 31 March 2013 where
it appears in paragraphs
3, 4 and 5 of that order, is replaced with
the date 15 July 2013.
[20.2] It is declared that the
extension until 15 July 2013 constitutes the final extension that
will be granted in order for the
first, second, third and fourth
respondents to comply with paragraphs 2 and 3 of Froneman J’s
order dated 3 April 2007 under
case number 1668/2006, by demolishing
the structures referred to therein.
[20.3] The first, second, third and
fourth respondents are to pay the applicants’ costs in the
present application on the
attorney and client scale, such costs to
include the costs of two counsel, jointly and severally, the one
paying the others to
be absolved.
______________
J M ROBERSON
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: Adv A M
Breitenbach SC, and Adv T M G Euijen, instructed by De Villiers &
Partners, Port Elizabeth
For
the 1
st
to 4
th
Respondents: Adv A Moorhouse,
instructed by Robert J Martindale, Port Elizabeth
1
The
judgment is reported as
Van Rensburg
and another v Nelson Mandela Metro Municipality and others
[2007] 4 All SA 950
(SE)
2
Smith
J’s judgment is reported as
Van
Rensburg NO and another v Naidoo NO and another
[2012]
ZAECPEHC 94