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[2022] ZALMPPHC 52
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Double Four Properties (Pty) Ltd v Polokwane Municipality and Another (HCAA21/2021) [2022] ZALMPPHC 52 (11 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Case
no: HCAA21/2021
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
In
the matter between:
DOUBLE
FOUR PROPERTIES (PTY) LTD
APPELLANT
And
POLOKWANE
MUNICIPALITY
FIRST RESPONDENT
BROADLANDS
HOME OWNERS ASSOCIATION NPC
SECOND RESPONDENT
JUDGMENT
MULLER
J:
[1]
Leave to appeal to the Full Court was granted by the presiding Judge
after the main
application instituted by Double Four Properties (Pty)
Ltd
[1]
was dismissed with costs
and a counter-application instituted by Broadlands Home Owners
Association NPC
[2]
was granted
with costs.
[2]
In the main application Double Four sought an interim interdict
against the Polokwane
Municipality
[3]
pending the outcome of an action to be instituted
[4]
to provide a sewer connection to which the drainage installation of
the Baobab Office Park
[5]
situated on the property known as portion 348 (a portion of portion
220) of the farm Tweefontein 915 situated on the corner of
Range
Street and Munnik Avenue in the township of Polokwane, can be
connected.
[3]
Double Four also sought an order that the municipality reconnect the
sewer system
of the office park with that of Broadlands pending the
provision of such permanent connection to the sewer system of the
municipality
together with an interdict to restrain Broadlands from
constructing, reconstructing, altering, adding to or making any
permanent
disconnection in or of any drainage installation which may
or will have an effect on the proper functioning of Double Four’s
drainage installation without first having obtained the lawful
permission of the municipality.
[4]
The application was dismissed on the basis that Double Four had
failed to establish
a
prima facie
right to a sewage connection
against both the municipality and Broadlands.
[5]
The salient background facts are as follows. Double Four purchased
the office park
after it was put up at an auction. The stand where
the office park is situated is on the corner of Range Street which
leads to
and from Broadlands. The main entrance gate to Broadlands is
in close proximity to the entrance of the office park. To enter the
office park use must be made of the length of the entrance road from
Munnik Avenue to the main entrance to Broadlands where the
entrance
to the premises of the office park is situated. The office park
consists of a one storey building with office space and
is presently
occupied by a commercial bank
[6]
who had concluded a lease agreement with the previous owner Nkhwazi
Trust.
[7]
[6]
The municipality issued a final occupation certificate in respect of
the office park
as well as a zoning certificate zoning it as
“Business 4.” The municipality prior to the sale charged
the trust for
sewage availability. Ownership of the office park was
duly transferred to Double Four on 8 March 2018. In terms of the
approved
building plans the drainage installation of the office park
should be connected to the municipal sewer system and not to the
Broadlands
sewer system.
[7]
On 12 September 2018 the bank forwarded an email to Double Four in
terms whereof the
bank informed Double Four that Broadlands blocked
the connecting drainage pipe which leads from the office park to
Broadlands.
[8]
It is for the first time that Double Four has learnt that the
drainage system of the
office park is connected to that of
Broadlands. Double Four instructed its attorney Oosthuizen to
investigate. He made telephonic
contact with attorney Bosman who
acted on behalf of Broadlands. Bosman confirmed the factual position
to him and also informed
him that there is an agreement concluded
between the trust and Broadlands in terms whereof the trust pays a
levy of R12 000.00
per month for the connection of the drainage pipe
to the sewer system of Broadlands and also for an encroachment on the
property
of Broadlands. Bosman informed him that he had notified the
auctioneers of the situation prior to the auction.
[9]
On 27 September 2018 Bosman informed Oosthuizen in a letter that
there is no agreement
between the trust and Broadlands and that
Broadlands is unaware of any blockage of their sewer lines. He made
it clear that Broadlands
will not allow plumbers onto its property,
other than plumbers employed by it. Double Four was informed that it
has made unlawful
use of the sewer system of Broadlands and the
request to connect the drainage pipe leading from the office park was
declined. In
addition Double Four was informed that it unlawfully
encroached on the property of Broadlands by making use of extended
road access.
[10]
The bank in turn complained that the smell at the office park has
become unbearable and that
the drainage system is leaking. It stated
that the municipality was called to unblock the drainage installation
with no success.
[11]
On 5 December 2018 Double Four was informed by Bosman that Broadlands
will remove and repair
a broken pipe on its property but will not
reconnect the pipe from the office park and intends to block it off
to prevent leakage
onto the property of Broadlands.
[12]
Double Four, in the meantime has obtained the services of an expert
Wicus Pretorius to investigate
certain issues that included the
drainage issue. Pretorius confirmed in a preliminary report that all
erven within Broadlands are
serviced by an internal sewer
reticulation installation of Broadlands that is connected to the
municipal sewer system on the lower
boundary of Broadlands. The sewer
system was never transferred to the municipality. The sewer system
should have been connected
to a manhole close to Broadlands main
entrance, but due to the invert level being too high this could not
be achieved. The alternative
was to connect the office park sewer
system to a pipe on the boundary of Portion 286 where a sewer pipe
was provided for that purpose.
The engineers were apparently not
aware that the office park was not on the property of Broadlands. He
confirmed that he had discussions
with Bosman who informed him that
that all previous agreements between the trust and Broadlands are
null and void due to non-performance
by the trust. As-built plans
(submitted if there were amendments to the original approved plans)
have not yet been approved. Approvals
from the chief building
inspector, fire services, storm water road and water sanitation had
not been obtained. The as-built plan
indicated that the sewer
connects to the municipal sewer. He indicated that the trust paid the
municipality for a sewage connection.
Broadlands acknowledged in a
letter dated 18 May 2016 that the trust that:
“
We
hereby acknowledge that we have received the full amount due by
yourself and that access will now be granted to your property.
As per the BHOA Board’s
approval you may commence with the construction of the road on the
property as indicated in the attached
document.
Once the contract has
been signed and all documentation is in order the connection to the
sewerage will be permitted.”
[13]
A meeting was arranged with Bosman and held on 15 January 2019.
During that meeting Broadlands
made it clear that it will only
reconnect the drainage pipe if Double Four enters into an agreement
with Broadlands to pay it R15 000.00
per month together with a
10% annual increase. Double Four did not accept the proposal.
[14]
Double Four attended at the municipality on 23 January 2019. The
manager: Water and Sanitation
agreed that the municipality is
responsible to provide a sewage connection to the office park. He
suggested that the municipality
will conduct an inspection of the
property and if need be restore the connection to the Broadlands
sewer system.
[15]
On 24 January 2019 Bosman addressed a letter to Oosthuizen in terms
whereof he confirmed that
Broadlands tenders to reconnect the
drainage installation and will allow the encroachment on the
Broadlands property in return
for a payment of R13 000.00 per
month with an escalation of 10% per annum.
[16]
Double Four as a result of the continuous stench and the failure of
the municipality to intervene
was forced to install a 5000 litre tank
which is emptied every second day on the premises of the office park
as a temporary measure.
A 10 000 litre tank has been added
outside the buildings of the office park.
[17]
Another meeting was arranged with the municipality and other
stakeholders including representatives
from Broadlands. Bosman
informed them at a meeting that the trust developed the office park
and that the access road encroached
on the property of Broadlands.
Broadlands installed a drainage system that serves the individual
properties in Broadlands and which
connects with the sewer system of
the municipality. An agreement had been entered into between the
trust and Broadlands that the
drainage system from the office park
could be connected on a temporary basis to that of Broadlands. Bosman
stated that the pipe
was blocked and those the plumbers who are
employed by the bank broke the pipe when they tried to unblock it.
The pipe was then
sealed off by Broadlands. He reiterated that
Broadlands is willing to conclude an agreement with Double Four to be
registered against
the title deeds of the properties to pay a monthly
levy for the encroachment and the use of the drainage system of
Broadlands.
The municipality at the meeting agreed that it has a duty
to provide the office park with a sewerage service. To date no
progress
has been made.
[18]
I now turn to the case of the municipality. The municipality accepts
that it has a constitutional
duty to provide basic sewer services and
that Double Four has up to the present day not been provided with a
sewer connection to
which the drainage installation of the office
park can be connected. However, the assumption of Double Four that,
according to
the approved plans that the drainage system of the
office park be directly connected to the sewer system of the
municipality is
incorrect. According to the municipality the correct
position is that when Broadlands, who was the owner wishing to
subdivide its
property, and excise the portion on which the office
park is situated from its property, it was decided that due to the
elevation
of the office park the most practical solution will be to
connect its drainage system to the municipal sewer system by
utilising
the Broadlands sewer system. A sewer pipe was provided to
establish a connection on the boundary of portion 286 which is
property
within Broadlands and which is adjacent to the office park.
The reference in the approved plans to “NEW SEWER LINE”
and NEW 110mm dia. UPVC SEWER LINE WITH MIN. FALL 1:60 TO MUNICIPAL
CONNECTION” refers to the approval of a connection to
the
municipal sewer through the sewer system of Broadlands. The
municipality also appreciates that due to material differences
between Double Four and Broadlands no agreement can be reached
between them which necessitates a direct connection from the office
park to the sewer system of the municipality. A process needed to be
followed in terms of the By-laws
[8]
of the municipality to apply for a sewer disposal system or other
sewer services. Section 2(1) and (2) of the relevant By-law provides
that:
“
(1)
The Council must take reasonable measures to realise the right of
every person to a basic water supply and sanitation services
as
contemplated in the Act.
(2) Notwithstanding this
basic right, every person who is the head of a household or in charge
of a business enterprise or industrial
undertaking or the
representative of any such person, and who or which desires to
consume water must make application to the council
as contemplated in
section 4 to acquire such services.”
[19]
The right of Double Four to be provided with a sewer connection,
according to the municipality,
can only be established once Double
Four is able to show that it has complied with the provisions of the
By-law. The process to
be followed is that an application must be
lodged with the municipality. The municipality will then identify the
nearest suitable
point of access to the municipal sewer. Double Four
is then required to appoint an engineer to design a functional on
site sanitation
service infrastructure to discharge sewage from the
office park into the municipal sewer system. The municipality will
consider
a proposed design and approve it, if satisfied that an
application as prescribed has been submitted and should be
granted.
[9]
Double Four will
have to bear the costs.
[20]
Broadlands is the owner of and is responsible for the maintenance of
its entire infrastructure
within the borders of the estate.
Broadlands sewer system connects to the municipal sewer system which
is not located on the property
of Broadlands. The office Park is
merely a neighbour of Broadlands. When the office park was developed
by the trust the building
plans were approved by the municipality
indicated that the office park sewer system will connect to the
municipal sewer pipe line
directly. Instead of connecting the office
park drainage outlet to the municipal pipeline, the trust connected
it with the Broadlands
system.
[21]
Broadlands objects to the order sought. Firstly, because there is no
obligation on it as a neighbour
to provide Double Four with a
connection to the Broadlands sewer system, and secondly, that the
order will have a permanent effect.
Put differently, Broadlands will
be compelled to keep the sewer of the Double Four connected to their
system indefinitely which
is unacceptable to Broadlands.
[22]
When the office park was to be sold on auction, Broadlands by letter,
notified the auctioneers
and the attorneys of the trust that the
office park has no sewer connection and that the office park as such
is illegally connected
to Broadlands.
[23]
Broadlands specifically denies that it blocked the drainage pipe of
the office park because of
non-payment of a levy. There is no
agreement between Double Four and Broadlands in terms whereof
Broadlands is entitled to charge
a levy for the use of the Broadlands
sewer system and Double Four has never paid Broadlands for such use.
[24]
The illegal connection to Broadlands has its origin at the time
building work was being conducted
at the office park.
[25]
It is necessary as point of departure to emphasise what was said in
Administrator
and The Firs Investments Pty Ltd v Johannesburg City Council
:
[10]
“
It
is of the essence of a town-planning scheme that it is conceived in
the general interests of the community to which it applies.
Protection of those interests falls, in my opinion, within the ambit
of municipal function.”
[11]
and
“
Moreover,
all town-planning schemes are so intimately concerned with matters
which normally form the subject of municipal government
- e.g.,
streets which are vested in the municipality, buildings, traffic
problems, drainage, health, civic amenities and so forth…”
[12]
[26]
It was undisputed at the hearing in the court below that the
municipality has a constitutional
obligation to ensure that
sustainable services are provided to the community in respect of
those services that a municipality must
provide and to promote a safe
and healthy environment.
[13]
[27]
On the other side of the same coin is the right of Double Four to be
provided with those services.
The municipality contended, however,
that the right is not unqualified, but is subject to compliance with
the provisions of the
relevant By-Law and approval by the
municipality.
[28]
It is, in addition, not disputed that building plans have been
approved by the municipality for
the erection of an office building
on and the development of the office park and for the drainage system
of the office park to
be connected to the municipal sewer system. Why
the drainage system of the office park was connected to the sewer
system of Broadlands
with the approval of the municipality remains an
issue.
[29]
In conclusion, even if it is accepted that Double Four has to apply
to the municipality for a
connection after its drainage system was
“unlawfully” connected to the sewer system of Broadlands
instead of the approved
direct connection to the sewer system of the
municipality, Double Four remains in need of a workable and
sufficient sewer connection
to the system of the municipality. There
is no reasonable expectation that the municipality presently can
provide a connection
to its sewer system other than by utilising the
sewer system of Broadlands to which the municipality connected the
office park
“unlawfully.” The connection appeared to have
been made for the convenience of the municipality, at the time, due
to
the costs involved to establish a connection in accordance with
the approved plan. It is for present purposes, not a defence for
the
municipality to claim that an application must be made for such a
connection when the approved plan shows where the connection
to the
municipal system must be and when an occupation certificate was
issued the purpose of which is to certify compliance with
the
requirements of National Building Regulations and Building Standards
Act
[14]
in respect of the
office park, which no doubt, included the installation of an approved
drainage system and its connection to the
municipal system in terms
of the relevant By-laws and conditions for the establishment of the
office park. The municipality allowed
the office park drainage system
to be connected to the Broadlands sewer system. Whether it was
allowed because it was thought (erroneously)
at the time that it was
part of Broadlands is of no moment.
[30]
In
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
[15]
the requirements to obtain interim relief were formulated as:
“
Briefly
these requisites are that the applicant for such temporary relief
must show-
(a)
that the right which is the subject matter
of the main action and which he seeks to protect by means of interim
relief is clear
or, is prima facie established, though open to some
doubt;
(b)
that, if the right is only prima facie
established, there is a well-grounded apprehension of irreparable
harm to the applicant if
the interim relief is not granted and he
ultimately succeeds in establishing his right;
(c)
that the balance of convenience
favours the granting of interim relief; and
(d)
that
the applicant has no other satisfactory remedy.”
[16]
[31]
In the
court
a quo
the learned Deputy Judge President held that the case has to be
determined according to the
Plascon-Evans
rule
[17]
and proceeded to
state that:
“
The
applicant sought an interim order. It is well established that in
order to succeed, it needs only establish a prima facie right,
though
open to doubt. More specifically, the applicant must show that on
their version, together with the allegations of the respondents,
that
they cannot dispute, they should obtain relief at the trial. On the
contrary, the application cannot succeed if, having regard
to the
respondents contrary version and the inherent probabilities, serious
doubt is cast on the applicants case, the application
cannot succeed
-
see
Webster v Mitchell
1948 (1) SA 1186
(W)
.”
[32]
It was held in
Webster v Michell supra
that:
“
In
the grant of a temporary interdict, apart from the prejudice
involved, the first question for the court in my view whether, if
interim protection is given, the applicant could ever obtain the
rights he seeks to protect.
Prima
facie
that has to be shown. The use of the phrase “
prima
facie
established though open to some doubt” indicates I think that
more is required than merely to look at the allegations of
the
applicant, but something short of a weighing up of probabilities of
conflicting versions is required. The proper manner of
approach I
consider is to take the facts set out by the applicant, together with
any facts set out by the respondent which the
applicant cannot
dispute, and to consider whether, having regard to the inherent
probabilities, the applicant could on those facts
obtain final relief
at the trial. The facts set up in contradiction by the respondent
should then be considered. If serious doubt
is thrown on the case of
the applicant he could not succeed in obtaining temporary relief, for
his right
prima
facie
established, may be open to “some doubt”. But if there is
mere contradiction, or unconvincing explanation, the matter
should be
left to trial and the right be protected in the meanwhile, subject,
of course to the respective prejudice in the grant
or refusal of
interim relief.”
[18]
[33]
In
Yusuf
v Aboobaker and Pietermaritzburg Local Transportation Board,
[19]
the court considered that use of the expression “a
prima
facie
right” is unfortunate and means no more than that a
“preponderance of probabilities” favour the applicant.
[34]
There is no dispute between Double Four and the municipality, on the
papers, that Double Four
has a
prima
facie
right to be provided with a sewer connection to the municipal sewer
system, even if the right is qualified, as contended by the
municipality by submitting an application to the municipality.
Broadlands did not take issue with this right but took issue only
with the right to make use of its sewer system by the office park.
Broadlands is aware of the connection since 2016. Broadlands
in my
view is not authorised to unilaterally alter or disconnect the sewer
connection without the written permission of the Municipality.
[20]
[35]
The undisputed evidence is that the sewer connection between the
office park and Broadlands were
blocked and that the contents of the
sewer seeped to the surface. (It matters not that Broadlands deny
that it has severed the
connection on the property of Broadlands.)
Double Four was forced to erect a tank on the premises (which must be
emptied twice
a week) to prevent further seepage of sewer contents to
the surface and to some extent reduce the stench. There can be little
doubt
the situation caused a persistent health hazard to those
working in the office park and the surrounding area.
[36]
In addition to the aforesaid, a nuisance to health may be
interdicted. It was held in
Consistory
of Steytlerville v Bosman
[21]
that:
“…
it
is not necessary for the purpose of an interdict that the injury
sought to be prevented should be of a pecuniary nature. A nuisance
to
one’s health, for instance, may not cause any damage in money,
and yet it is an every-day practice to interdict it.”
[37]
The court must next determine if there is well-grounded apprehension
of irreparable harm. The
test is whether a reasonable man might
entertain a reasonable apprehension that harm will result. In both
instances described above
the harm may not be of a pecuniary nature.
But, the absence of a pecuniary harm is no impediment to the interim
relief claimed.
[22]
This court
should not take a too narrow approach to the requirement of
reasonable apprehension of harm. Apart from the health hazard,
a real
likelihood exists that the bank might terminate its lease with Double
Four which will result in pecuniary loss. Double Four
had to purchase
two tanks which need to be emptied weekly at a cost to abate the
health hazard. I am satisfied that Double Four
has succeeded to show
a well-grounded apprehension of harm.
[38]
When the prejudice to the applicant if the relief is refused is
weighed against the prejudice
that the municipality and Broadlands
will suffer if the relief is granted, it seems to me that the balance
of convenience favours
Double Four. It is common cause that that
sewer system of Broadlands were utilised for a number of years prior
to the blocking
that occurred. Temporary re-connection to the
Broadlands sewer system will be less than an inconvenience to
Broadlands than it
will be to Double Four if the relief is refused.
The office park will remain without a sewer system and the public
health hazard
unabated.
[39]
There is no other satisfactory remedy available to Double Four
pending the finalization of the
action. In my view the court
a quo
erred in dismissing the application.
[40]
In
Airoadexpress
(Pty) Ltd v Chairman Local Board Transportation Board Durban and
Others
[23]
the court reaffirmed the general power preserved by the court to
grant interim relief
pendent
lite
to avoid hardship and injustice in exceptional circumstances where a
litigant will be remediless, but for the exercise of such
power. On
the assumption that Double Four still has to apply for a sewer
connection despite the connection having being indicated
in terms of
the approved building plans and the subsequent provision of an
occupational certificate by the municipality, Double
Four still has
no sewer connection. The absence of a sewer connection causes a
health hazard. To avert escalation of a serious
public health hazard
from developing into a catastrophe it is open to this court to come
to assistance of Double Four
pendent
lite.
No
other remedy is available to Double Four but for an interim order to
connect its drainage system to that of Broadlands until
the dispute
between the municipality and Broadlands has been resolved.
It
follows that the appeal is to be upheld.
THE
COUNTER-APPLICATION
[41]
Broadlands instituted a counter-application against Double Four and
was granted final relief
in terms of an order declaring that Double
Four is encroaching onto the property belonging to Broadlands known a
Portion 350 of
the Farm Tweefontein No 915 LS, together with an order
that Double Four remove all traces of encroachment from the property
of
Broadlands.
[42]
When an applicant seeks final relief in motion proceedings disputes
of fact must be determined
on the facts as stated by the respondent
together with the admitted or undenied facts in the founding
affidavit of the applicant
which provides the factual basis for
determination unless denials or disputes raised in the version of the
respondent are not real
or genuine or the denials are bald or
unworthy of credit or the respondent’s version raises such
obvious fictitious disputes
of fact or is so untenable or implausible
or far-fetched that a court is justified in rejecting that
version.
[24]
[43]
Broadlands in support of the relief claimed stated that the
properties of Broadlands and the
office park are adjacent to each
other. Range Street which is also a public road which allows access
to Broadlands is constructed
on portion 350 which is the property of
Broadlands. A traffic light is situated at the intersection of Munnik
Avenue which is a
public road and main thoroughfare and Range Street
which leads to the entrance gate of Broadlands and the entrance to
the office
park. The entrance to the office park is situated in close
proximity to the entrance to Broadlands. Electrical cables which
provide
electricity to the traffic lights at Munnik Avenue and
electrical services as well as the water supply to Broadlands are
situated
on portion 350 and run under the area where the entrance to
the office park is. It is not in dispute that anyone going to the
office
park must as of necessity use Range Street and the entrance
which is situated on portion 350. Broadlands explain in annexure CB
that:
“
Die
uitgangsbaan van Gedeelte 348 is in sy geheel op Gedeelte 350 geleë.”
[44]
The entrance or the “uitgangsbaan” is part the disputed
encroached area. I understand
Broadlands to accept that the office
park must have an access road and for that purpose an entrance was
provided. From what is
depicted in annexure CG it appears that the
area of encroachment is an area (approximately 129 square metres
[25]
(marked with white lines) of portion 350 which is adjacent to Range
Street and the actual boundary between the Portion 348 and
350. The
129 square metre area is currently paved and inside the perimeter of
the office park. The area is utilised as a passage
for vehicles to
travel to and from a parking area inside the office park. It appears
from the photograph that the buildings of
the office park were
erected so close to the boundary between portion 348 and 350 that it
was necessary to encroach upon portion
350 to allow vehicles to
travel from the parking area of the office park to the entrance at
Ranger street. Annexure CB contains
an explanation together with a
sketch plan as follows:
“
1.
Die hoek van die gebou is 2, 87 meter van die grens D-E af.
2.
Die uitgangsbaan van Gedeelte 348 is in sy geheel op Gedeelte 350
geleë.
3.
Die eiland waarop die toergansbeheer hekke is lȇ op die grens
D-E. Die helfte van die eiland
oorskry op Gedeelte 350.
4.
Die palisade op die grens D-E lȇ om die helfte op Gedeelte 348
en Gedeelte 350. Waar
die randsteen begin is dit 9cm binne Gedeelte
348. By baken D is dit 9cm buite Gedeelte 348.
5.
Die palisade langs die grens C-D lȇ op Gedeelte 350. By baken D
is dit 3cm buite Gedeelte 348.
By baken C is dit 26cm buite Gedeelte
348.
6.
Die palisade op die grens B-C is binne Gedeelte 348 geleë”.
[45]
The way I understand it, is that it is really only the portion of the
passage together with the
boom gate for traffic leaving the office
park which forms the encroachment. Thus the left lane of the passage
for vehicles leaving
the office park if it dived in two and area
where the boom gate in respect of those vehicles is situated, which
are encroaching
on portion 350. If the encroachment is removed the
passage will only be wide enough to accommodate one vehicle to enter
or leave
at a time.
[46]
The encroachment is insufficiently identified in the papers. A map or
drawing produced by an
expert to indicate the exact extent of the
area of the encroachment should have been put up as evidence to make
clear where the
area is situated.
[47]
In the opposing affidavit Double Four lamented the use of a Google
Earth photo to indicate where
and to what extent the office park
encroached onto the property of Broadlands. Double Four accepted,
however, that an area of approximately
129 square metres is
encroaching onto the property of Broadlands but avers that it is an
insignificant area. An area of 129 square
metres can hardly be
described as insignificant in my judgment.
[48]
It does not mean that Broadlands rights as landowner should likewise
be brushed aside and be
regarded as being insignificant. It is
opportune to note that rights of the adjoining landowner Broadlands
are adversely affected
as a result of the encroachment on its
property because the passage or drive way which allows traffic to
pass the building of the
office park to and from the parking area or
whether the entrance which is situated on the land of Broadlands is
wider than 6 metres
allowed by Broadlands.
[49]
In
De
Villiers v Kalson
[26]
the court approved of the statement in Maasdorp’s
Institutes
of Cape Law,
as
the correct exposition of the law:
“
That
where a building is erected partly on ones own ground and partly on
anothers, the owner of the ground encroached upon may demand
the
encroachment be removed, or that the party making the encroachment
shall take transfer of the piece of ground actually occupied
by the
encroachment and so much of the rest of the ground rendered useless
to him thereby and to pay him the value of the ground
so transferred
together with the costs of transfer and a reasonable sum as damages
for the trespass and as a solatium for the compulsory
expropriation.
Where there has been a delay in applying for the removal of the
encroachment the Court will restrict the party injured
to the latter
remedy.
[50]
In
Fedgroup
Participation Bond Managers (Pty) Ltd v Trustee, Capital Property
Trust
[27]
the court retraced the development of our law in relation to an
aggrieved landowner’s right to seek removal of an encroachment
with the aid of an article authored by Boggenpoel ZT ‘
Compulsory
Transfer of Encroached-Upon Land: A Constitutional Analysis’
.
The court reiterated the principle as:
“
Boggenpoel
explains that in Roman-Dutch law the point of departure was the same
as in Roman law, namely that if anybody suffered
as a result of
something belonging to his neighbour overhanging or encroaching on
his property, he could force the neighbour to
remove it.”
[28]
[51]
In
BSB
International Link CC v Readam South Africa (Pty) Ltd and Another
[29]
the court reiterated that the common law principle, as expressed by
CG van der Merwe
[30]
finds
application in cases of encroachment on the property of another:
“
In
the case of encroaching structures the owner of the land which
encroached upon can approach the court for an order compelling
his or
her neighbour to remove the encroachment…Despite the above
rule above the court can, in its discretion, in order
to reach an
equitable and reasonable solution, order the payment of compensation
rather than the removal of the structure. This
discretion is usually
exercised in cases where the cost of removal would be
disproportionate to the benefit derived by the removal.
If the court
considers it equitable it can order that the encroaching owner take
transfer of the portion of the land which has
been encroach on. In
such circumstance the aggrieved party is entitled to payment for that
portion of the land, costs in respect
of the transfer of the land as
well as a
solatium
on account of trespass and involuntary deprivation of portion of his
or land.”
[31]
[52]
Double Four has placed reliance on the Roman-Dutch law rule that a
landowner cannot insist upon
removal of the encroachment if he/she
has allowed the encroachment knowingly.
[32]
It is to be stressed that the application of this rule has always
been subject to the equitable discretion of the court.
[33]
In
Stark
v Bloomberg
[34]
the court held, where a building encroached on neighbouring land, and
stood for more than a year without protest from the owner
of the land
that:
“
[it]
is not the practice of the Courts to order buildings to be removed
but to award damages. Such damages will not merely be value
of land
encroached upon, but the Court will also be guided by the loss which
the owner of the land has sustained by the encroachment.”
[53]
In
Van
Boom v Visser
[35]
action was instituted for the removal of a certain building from the
land of the plaintiff and for damages. The defendant was ordered
to
remove the encroachment, or in the alternative, to purchase the piece
of land he has encroached upon and to pay damages in the
amount of
£10.
[54]
There cannot be any doubt that this court has a discretion whether to
order removal of the encroachment
or to make any other reasonable and
equitable order depending on the circumstances of the case.
[36]
[55]
Of course, if the office park is allowed to encroach onto the
property of Broadlands, the encroachment
will be lawful. Double Four
will then exercise a right of access to the encroached portion of the
property of Broadlands whereby
Broadlands will be deprived of its
right of enjoyment over that portion of its property. As such the
deprivation must comply with
the provisions of section 25(1) of the
Constitution which provides that:
“
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of
property.”
[56]
Van der Merwe
supra
observes: in par 163 of LAWSA:
“
Generally,
loss of property by operation of the rules of the common-law cannot
be treated as expropriation in South African law,
simply because
expropriation can only be undertaken by the state on the authority of
legislation. By and large instances where
someone loses property by
operation of law on the authority of the common law, are therefore to
be treated as instances of deprivation
of property that must comply
with the non-arbitrariness requirement in section 25(1). This means
that there must be good reason
for such deprivation. The combination
of a compensation award with an order to transfer the land to the
encroacher is a serious
and extraordinary step in South African law.
Such an order would have to be justified under section 25(1)
separately from the decision;
the decision to deny injunctive relief,
and the effect that such deprivation would have on the investment in
property must be considered
carefully. It must not be assumed glibly
that the affected landowner must be satisfied with compensation; the
deprivation must
be justified adequately in every individual
instance.”
[57]
The common law, is law of general application.
[37]
Deprivation of property is permissible if such deprivation is not
arbitrary. The Constitutional Court in
First
National Bank of SA Ltd t/a Wesbank v Commissioner South African
Revenue Service and Another; First National Bank of SA Ltd
t/a
Wesbank v Minister of Finance
[38]
held
that ‘arbitrary’ in section 25 means:
“
Having
regard to what has gone before, it is concluded that a deprivation of
property is ‘arbitrary’ as meant by s 25
when the ‘law’
referred to in s 25(1) does not provide sufficient reason for the
particular deprivation in question
or is procedurally unfair.
Sufficient reason is to be established as follows:
(a)
It is to be determined by evaluating the
relationship between means employed, namely the deprivation in
question and ends sought
to be achieved, namely the purpose of the
law in question.
(b)
A complexity of relationships has to be
considered.
(c)
In evaluating the deprivation in question,
regard must be had to the relationship between the purpose for the
deprivation and the
person whose property is affected.
(d)
In addition, regard must be had to the
relationship between the purpose of the deprivation and the nature of
the property as well
as the extent of the deprivation in respect of
such property
(e)
Generally speaking, where the property in
question is ownership of land or a corporeal moveable, a more
compelling purpose will
have to be establish in order for the
depriving law to constitute sufficient reason for the deprivation
than in the case when the
property is something different and the
property right something less extensive….
(f)
Generally speaking, when the deprivation in
question embraces all the incidents of ownership, the purpose for the
deprivation will
have to be more compelling than when the deprivation
embraces only some incidents of ownership and those incidents only
partially.
(g)
Depending on such interplay between
variable means and ends, the nature of the property in question and
the extent of its deprivation,
there may be circumstances when
sufficient reason is established by, in effect, no more than a mere
rational relationship between
means and end; in others this might
only be established by a proportionality evaluation closer to that
required by s 36(1).
(h)
Whether there is sufficient reason to
warrant the deprivation is a matter to be decided on all the relevant
facts of each particular
case, always bearing in mind that the
enquiry is concerned with ‘arbitrary’ in relation to the
deprivation of property
under s 25.”
[58]
It is important too, not to lose sight of the fact that the judgment
of the Constitutional Court
dealt with the constitutional validity of
deprivation of property in terms of section 114 of the Customs and
Excise Act.
[39]
Nevertheless,
the factors enumerated above, in my view, apply equally to
deprivation of property in terms of the common law.
[59]
The court below was not requested nor did it consider transfer of the
encroached portion of the
property to Double Four. I understand the
law, as explained by Maasdorp, to be that the party who encroaches
may purchase the encroached
upon portion, only if the other party is
willing to sell it. That was also the approach adopted by the court
in
Van Boom v Visser supra.
[60]
Whether a court has the power to force a party to sell the encroached
upon portion of the property
is doubted. No argument was presented on
this topic before us. This court, therefore, need not decide the
issue in the present
case.
[61]
The encroachment in the present matter is not caused by a building or
other permanent structure
erected on the property of another. The
area encroached upon is an area sufficiently wide to allow for
vehicles to reach the parking
area of the office park.
[62]
Double Four argued in the court below that Broadlands allowed the
encroachment to persist and
has waived any right to have the
encroachment removed. In addition thereto, Double Four contended that
it purchased the office
park unaware of the existence of the
encroachment. In the alternative it was argued that Broadlands is
prepared to allow the encroachment
upon payment of compensation but
that they were unable to agree on a reasonable amount as
compensation.
[63]
I am unconvinced that Broadlands has waived its right to have the
encroachment removed. The
onus
is on Double Four to prove with clear evidence that Broadlands waived
it’s right on a balance of probabilities. Delay in
enforcing
its right also does not provide proof of a waiver nor does the delay
bring about the loss of the right. But the failure
to take steps
within a reasonable time to have the encroachment removed may be
taken into consideration to decide whether Broadlands
should be
permitted to assert its right.
[40]
In
Rand
Waterrraad v Bothma supra
the court applied principles of equity and similarly denied the
applicant the right to remove the encroachment due to its supine
approach to the litigation and the failure to assert its right within
a reasonable time period.
[41]
[64]
The fact that Double Four was unaware of the encroachment when it
purchased the office park is
neither here nor there. Nothing turns on
the access to the office park as an encroachment complained of is,
elsewhere. It is, to
say the least, rather surprising that the right
of access to the office park has not been registered.
[42]
[65]
It is not disputed that the point of access to the office park was
granted in terms of the approval
in respect of the development by the
authorities together with the consent of Broadlands.
[43]
The real issue in contention indeed is, the location of a two-way
passage used by vehicles which runs adjacent to the building
of the
office park to give access to the parking area. The area between the
street and the passage forms an island between the
two. The passage
is encroaching upon the property of Broadlands, as described in a
letter (Annexure KJO 26) dated 24 January 2019:
“
Should
no agreement be reached, would you be so kind as to inform us when
your client intend to make available the road access,
in more
specific the portion which encroach on our clients land, back to us.
In this regard it is obviously not our intention to
disallow your
client entry into its property, but is it merely to limit same to an
entrance into the property, instead of a road
running the length of
the property. Full detail pertaining thereto is available with Mr
Wicus Pretorius who is in the service of
your client.”
[66]
Counsel were requested to indicate whether the entrance to the office
park and the passage inside
the perimeter of the office park leading
to the parking area is a street within the urban area of Polokwane,
and if so, whether
such a passage could be closed in terms of the
order as framed in the counter-application without written consent of
the first
respondent.
[67]
Mr Bosman who appeared on behalf of Broadlands argued that no such
consent is needed because
a boom gate has been erected at the
entrance to the office park which prohibits access to and from the
office park. The passage
inside the premises of the office park is,
therefore, not a public road.
[68]
Section 80A(1)(
l
)
of the National Road Traffic Act permits a local authority to
promulgate By-laws in relation to the use of any public road within
the area of jurisdiction of the local authority. Section 14 of the
Standard Street and Miscellaneous By-Laws issued by the
Municipality
[44]
provides
that:
“
No
person shall make or cause to be made any hole, trench, pit or
excavation in any street or remove any soil metal or macadam
therefrom without the previous consent of the council in writing.”
[69]
The definition of ‘street’ in the By-law states that:
“
street includes
any street, road or thoroughfare shown on the general plan of a
township, agricultural holding or other division
of land or in
respect of which the public have acquired a prescriptive or other
right of way. And any other words or expression
to which a meaning
has been assigned in the Road Traffic Ordinance, 1966 (Ordinance 21
of 1966), shall have that meaning.”
[70]
Section 93 of the National Road Traffic Act
[45]
reads that:
“
Any
proclamation, regulation, by-law, notice, order, prohibition,
authorisation, appointment, permission, information, or document
made, issued, imposed, granted, furnished or given and any other
action taken in terms of any provision of a law repealed by
subsection
(1) shall be deemed to have been made, issued, imposed,
granted furnished, given or taken in terms of the corresponding
provision
of this Act (if any)”.
[46]
[71]
The National Road Traffic Act defines a public road as:
“’
Public
road’
means any road, street or
thoroughfare or any other place (whether a thoroughfare or not) which
is commonly used by the public or
any section thereof or to which or
to the public or any section thereof has a right of access, and
includes-
(a)
the verge of any such road, street or
thoroughfare;
(b)
any bridge, ferry or drift traversed by any
such road, street or thoroughfare; and
(c)
any other work or object forming part of or
connected with or belonging to such road, street or thoroughfare.”
[72]
In terms of the order sought in the counter-application, Double Four
is required to remove all
traces of any encroachment from portion
350. It seems to me that removal of the encroachment will inevitably
result in the removal
of at least a section of the entrance as well
as part or the whole of the sidewalk of Range Street together with
the passage used
by motor vehicles all of which are situated on
portion 350.
[73]
The public generally has access to the office park and the parking
area. No evidence has been
presented by any of the parties that
access is restricted by Double Four by utilization of the boom gates
which is situated in
the 129 square metre area of encroachment which
is presently utilised by Double Four as a passage for vehicles.
[74]
The mere presence of boom gates on the premises of the office park is
not proof that employees
and clients of the bank have restricted
access to the office park.
[47]
A restaurant business was earlier conducted from the premises. The
inference is irresistible that the passage is a public road.
[75]
Removal of the outbound passage and part of the sidewalk adjacent to
the outbound passage between
the street and the passage both of which
are on portion 350 may only be undertaken in terms of the By-law with
the written consent
from the municipality.
[76]
Broadlands has not given any indication whether the area is earmarked
for any specific purpose
in the foreseeable future nor has it placed
any value on the encroached area. I doubt whether the area can be
utilised by Broadlands
as a result of its location between the street
and the boundary between portions 350 and 348.
[77]
The encroached area is being utilised by Double Four since 2016. The
encroached area is a narrow
strip between the public street and the
boundary which as I have said forms an island between two streets
which appears not to
be commercially viable which Broadlands can
utilised or exploit commercially.
[78]
It seems to me that it will be just and equitable that value of the
encroached area be determined
and Double Four be ordered to
compensate Broadlands for past and future use of the encroached area.
A right to use and enjoy the
encroached area for vehicles to leave
the parking area should be registered against the title deed.
[48]
There are no
numerus
clauses
of servitudes. Van der Merwe CG says:
“
Soos
reeds vermeld, bestaan daar geen
numerus
clauses
van
erfdiensbaarhede nie. Mits aan die geldigheidsvereiste voldoen word,
hoef ‘n gronddiensbaarheid nie in ‘n geykte
vorm gegiet
te word nie…. Niks verhoed egter die eienaar van die heersende
erf om ooreenkomstig sy behoeftes n ongeykte
gronddiensbaarheid, van
watter aard ookal, deur ooreenkoms ten opsigte van die dienede
grondstuk te vestig nie”
[49]
[79]
The author referred, as authority, to the judgment in
Venter
v Minister of Railways.
[50]
A property was transferred to the government on condition contained
in the deed of transfer that the government shall not have
the right
to carry on any trade or business of a public nature from the
property so transferred. The owner of another portion of
the property
applied for an interdict to restrain the government from doing
business from its property. The court with reference
to
Tonkin
v Van Heerden
[51]
held:
“
In
the case just quote no attempt was made to argue that the servitude
created by the condition was invalid because it was unduly
in
restraint of trade. That is not strange, because the very nature of a
praedial servitude excludes the possibility that it may
be unduly in
restraint of trade. A praedial servitude comes into existence only if
the right to be acquired by the
praedium
dominans
is for perpetual benefit.”
[80]
I consider that it is for the respective parties to decide if the
area should be transferred
to Double Four.
[81]
The counter-application should be referred back for the court to
consider the amount of compensation.
To do so the parties must be
afforded the opportunity to place expert evidence, they deem
necessary, before the court. For that
purpose the determination of
the quantum of compensation to be awarded is referred to evidence.
[82]
As far as the costs are concerned I consider that the costs of the
application should stand over
for determination at the trial and that
the costs of the counter-application should stand over for
determination at conclusion
of the counter application.
[83]
Double Four is entitled to the costs of the appeal in respect of the
application. I consider
it fair that each party bear the costs in
respect of the counter-application.
ORDER
1.
The appeal in respect of the application is upheld with costs.
2.
The order of the
court aquo
is set aside and replaced with the
following order:
2.1
that the First Respondent is ordered to provide a sewer connection to
which the drainage installation
of the property known as portion 348
(a portion of portion 220) of the farm Tweefontein 915 situated at
the corner of Range Entrance
Street and Munnik Avenue, Broadlands
Estate, Polokwane (“the Baobab Office Park”) can be
connected.
2.2
That pending the provision of such permanent connection point, the
second Respondent is ordered to reconnect
the sewer system of the
Baobab Office Park with that of the Broadlands Estate, alternatively
that the First Respondent is ordered
to compel the Second Respondent
to do so.
2.3
That the Second Respondent be interdicted and restrained from
constructing, reconstructing, altering,
adding to or making any
permanent disconnection in or of any drainage installation which may
or will have an effect on the proper
functioning of the Applicants
drainage installation without first having obtained the lawful
permission of the First Respondent.
2.4
That the orders in prayers 2.1 to 2.3 above shall operate as an
interim interdict with immediate effect
pending the outcome of an
action instituted by the Applicant.
2.5
The costs of the application are reserved for the trial court to
consider.
3.
The appeal against the counter-application is upheld.
4.
The order is set aside and replaced with the following order:
4.1
The application is referred to evidence in respect of the
determination of the amount of compensation.
4.2
The costs of the counter application is reserved.
5.
No order is made in respect of the costs of the appeal of the
counter-application.
GC
MULLER
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
I
concur
EM
MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
I
concur
MG
PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
1.
For Appellant:
LM Malan SC
WA De Beer
2.
For first Respondent:
Adv
JAL Pretorius
3.
For second Respondent
N Bosman
4.
Date judgment reserved:
13 May 2022
5.
Date judgment delivered:
11 August 2022
[1]
Hereinafter
“Double Four”.
[2]
Hereinafter called “Broadlands”.
[3]
Hereinafter
“the municipality”.
[4]
The action has been instituted under case 6151/2021.
[5]
Hereinafter
“the office park”.
[6]
Hereinafter
“the bank”.
[7]
Hereinafter
“the trust”.
[8]
Standard
Water and Sanitation By-Laws Published under LAN 196 Limpopo
Provincial Gazette 1937 dated 14 June 2011.
[9]
Chapter
6 Part B of the By-law.
[10]
1971 (1) SA 56 (A).
[11]
70D.
[12]
71A; Also
BEF
(Pty) Ltd v Cape Town Municipality and Others
1983 (2) SA 387
(C) 401B-E.
[13]
Section 152(1) of the Constitution.
[14]
Act 103 of 1977.
[15]
1969 (2) SA 256
(C) 267A-F.
[16]
Setlogelo
v Setlogelo
1914
AD 221, 227.
[17]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[18]
At 1189.
[19]
1943
NPD 244, 245.
[20]
Section 96 of the By-law.
[21]
(1893)
10 SC 67, 70.
[22]
Prest
CB
The
law and Practice of Interdicts
(1996)
65;
Burgers
and Others v Joubert and Others
(1866)
1 Roscoe 351
,
354-355;
Section 24(a) of the Constitution.
[23]
1986 (2) SA 663 (A) 676 B-D.
[24]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) supra
634H-635C;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) par 26.
[25]
According to Broadlands.
[26]
1928 EDL 217, 229.
[27]
2015 (5) SA 290
(SCA).
[28]
Par 29.
[29]
2016 (4) SA 83 (SCA).
[30]
“
Things”
27
Lawsa
(2 ed) para 158.
[31]
Par 24.
[32]
Van
der Merwe CG “Things” 27
Lawsa
(2 ed) para 158.
[33]
Hornby
v Municipality of Roodepoort-Maraisburg
1918 AD 278
, 296-298.
[34]
(1904)
14
CT 135.
As
quoted
in De Villiers v Kolson
supra
229.
[35]
(
1904)
21 SC 360. 361.
[36]
De
Villiers v Kalson
supra 229-230;
Town
Council of Roodepoort-Maraisburg v Posse Property (Pty) Ltd
1932
WLD 78
, 87-88;
Johannesburg
Consolidated Investment Co Ltd v Mitchmor Investments (Pty) Ltd and
Another
1971
(2) SA 397
(W) 405D;
Rand
Waterraad v Bothma an n Ander
1997 (3) SA 120
(O) 138C-G;
Phillips
v South African National Parks Board
(4035/ 07) [2010] ZAECGHC 27 (22 April 2010) par 21;
BSB
International Link CC v Readam South Africa (Pty) Ltd and Another
supra
par
26.
[37]
Du
Plessis and Others v De Klerk and Others
[1996] ZACC 10
;
1996 (3) SA 850
(CC) par 44;
The
President of the Republic of South Africa v Hugo
1997
(4) SA 1
(CC) par 96;
S
v Thebus and Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC) par 65.
[38]
2002 (4) SA 768 (CC).
[39]
Act 91 of 1964.
[40]
Mahabeer
v Sharma NO and Another
1985 (3) SA 729
(A) 736H.
[41]
p
138.
[42]
Van der Merwe CG
Sakereg
2
nd
ed (1989) 526.
[43]
Ius in
personam ad servititem adquirendam.
[44]
Promulgated in terms of Administrators Notice 137 dated 23 January
1974.
[45]
Act 93 of 1996.
[46]
See also section 93B.
[47]
S v
Kriel
1968 (3) SA 452
(T);
S
v Rabe
1973 (2) SA 305
(C);
S
v Dillon
1983 (4) SA 877 (N).
[48]
As a real right.
[49]
Van der Merwe CG
Sakereg
2
nd
ed (1989) 480-481.
[50]
1949 (2) SA 178 (ECD).
[51]
1935 NPD 589.