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[2022] ZAECMKHC 118
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Mondoclox (PTY) Ltd v Branch and Another (3581/2021) [2022] ZAECMKHC 118 (15 December 2022)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
CASE NO: 3581/2021
In the matter between:
MONDOCLOX (PTY)
LTD
Applicant
And
JANET CUMMING
BRANCH
First Respondent
NDLAMBE
MUNICIPALITY
Second Respondent
JUDGMENT
Bloem J
1.
The applicant seeks an order declaring the
erection of a structure unlawful and a directive that it be
demolished. In the alternative,
the applicant seeks an order
compelling the second respondent to take the steps which it is
lawfully obliged to take to ensure
the demolition of the structure.
2.
The applicant is a company. It is the owner
of an immovable property known as erf [....], Kenton-on-Sea (the
applicant’s property)
since 2014/2015. The first respondent is
an adult female. She is the owner of the neighbouring immovable
property known as erf
1561, Kenton-on-Sea (the first respondent’s
property) since 1995. The applicant’s property abuts the first
respondent’s
property on the eastern edge. The applicant’s
and first respondent’s properties are situated within the area
of jurisdiction
of the second respondent, the Ndlambe Local
Municipality (the municipality).
3.
When the applicant purchased its property,
it was undeveloped and remains so. It claimed that during 2015 it
drew plans for the
erection of a residential dwelling in the centre
of the property. It subsequently amended those building plans which
envisage the
proposed dwelling closer to the boundary which it shares
with the first respondent. The amended building plans have been
approved
by the municipality.
4.
The applicant alleged that, after the
approval of the amended building plans, a survey was carried out of
its property. The survey
revealed that a structure on the first
respondent’s property substantially encroaches over the
building line close to the
boundary between the two properties. The
applicant fears that the required excavations would seriously
undermine the foundations
of the encroaching structure, which in turn
would lead to instability and cause foundation subsidence and damage
to the encroaching
structure. The encroaching structure accordingly
has complications for the erection of the envisaged residential
dwelling on the
applicant’s property.
5.
The applicant’s legal representatives
met with the municipality’s Director of Infrastructure
Developments on 19 March
2019 to discuss the applicant’s
concerns. Several further visits by the applicant’s legal
representatives to the municipality
followed. During a meeting on 25
March 2019 the municipality provided the applicant’s legal
representatives with copies of
the 2007 and 2015 building plans
relating to the first respondent’s property. During that
meeting a certain Ms Ngxashula,
of the municipality’s town
planning department, informed the applicant’s legal
representatives firstly, that there
was no application for the first
respondent to erect the structure over the building line on the first
respondent’s property;
and secondly, that there was no
application for consent to land use change in respects of the first
respondent’s property.
6.
The applicant alleged that the first
respondent falsely represented to the municipality that the
encroaching structure was an artist’s
studio, when it was in
fact a flatlet or cottage which is rented out. A separate flatlet on
an immovable property constitutes a
second dwelling, which, without
specific permission, is not permitted within the prevailing land use
scheme which governs the use
of both the applicant’s and the
first respondent’s properties.
7.
It is common cause that during 1997 the
first respondent’s husband submitted building plans to the
municipality for the erection
of the structure in question (the
outbuilding). The municipality approved those building plans on
19 February 1997. On
4 October 2007 the first respondent
submitted further building plans to the municipality for certain
alterations and additions
to the existing outbuilding. On 2 April
2008 the municipality approved those plans. On 23 April 2008 the
municipality’s building
control officer inspected the first
respondent’s property during the construction of the envisaged
alterations and additions.
From the building control inspector’s
control sheet, it appears that the builder on site identified the
boundary pegs. According
to the building plans which were approved on
2 April 2008, the building line was 1570mm from the boundary with the
applicant’s
property and the floor plan indicated that the
structure would consist of an art studio, pottery studio and a
bathroom.
8.
During 2015 the first respondent submitted
further building plans to the municipality in respect of her property
for yet further
alterations and additions to the outbuilding. The
municipality approved the further amended building plans on 13 May
2015. The
applicant alleged that “
it
is apparent that the first respondent wished to extend the existing
outbuilding structures by adding an office and two stores
”.
The first respondent erected the structure as envisaged in the
further amended building plans, the applicant complaining
that “
the
result being the unlawful structure
”.
The applicant contended that the erection of the outbuilding was
unlawful for two reasons. Firstly, the entire length of
the structure
has been erected over the building line “
with
its nearest point to be within 290mm of the applicant’s
property and with its most distant abutting point to be 830mm
”.
Secondly, the structure appears to have a kitchen and a bathroom. It
is plumbed, supplied with electricity and has two
geysers. It
therefore constitutes a second dwelling unit, whereas the area in
which the properties are situated is zoned “single
residential”. The applicant alleged that the first respondent
did not apply for nor obtain permission to erect the structure
in
that manner.
9.
The
applicant based its application on the provisions of the National
Building Regulations and Building Standards Act
[1]
(the Building Act) and the National Building Regulations.
[2]
It furthermore based its application on the provisions of the Ndlambe
Local Municipality Spatial Planning and Land Use
Management By-Laws
[3]
(the
by-laws), as read with the Ndlambe Municipality Land Use Scheme
[4]
(the Scheme). The by-laws and the Scheme were promulgated and adopted
in terms of the Spatial Planning and Land Use Management
Act.
[5]
10.
The
applicant’s case is that the building line
[6]
nearest to the boundary
[7]
which
it shares with the first respondent is 1570mm and that the
outbuilding on the first respondent’s property encroaches
over
the building line nearest to that boundary. The applicant made that
allegation because that distance is specified on the first
respondent’s building plans. It is pointed out that in terms of
sections 24 and 26 of the Scheme, the building line is 1500mm
from
the boundary between the applicant’s and first respondent’s
properties. The applicant employed a professional
land surveyor who,
after having surveyed the properties, alleged that at its furthest
point, the outbuilding is situated 830mm
from the boundary with the
applicant’s property and at its closest point, it is situated
290mm from that boundary. The applicant
alleged that its enquiries
with the municipality revealed that the first respondent has not made
an application for permission
to encroach the building line. It
contended that the encroachment is unlawful and negatively impacts on
its enjoyment of its property
because it limits the extent to which
it can develop its property.
11.
The applicant alleged that, when it
purchased its property, the first respondent’s property was
zoned as residential zone
1. In terms of the Scheme, a distinction is
made between residential zones 1, 2, 3 and 4. Zone 1 makes provision
for single residential
purposes, zone 2 makes provision for medium
density residential purposes, zone 3 makes provision for high density
residential purposes
and zone 4 makes provision for incremental
housing. According to the Scheme, a dwelling unit on a residential
zone 1 property “
means a
self-contained inter-leading group of rooms with not more than one
kitchen used for human habitation and includes such outbuildings
as
are ordinarily used therewith and permit a home occupation for a
single household
”. Multiple use
of the building on a residential zone 1 property has to be limited to
minimise any adverse impact on the residential
environment. The first
respondent’s property could accordingly be used for single
residential purposes only. Consent had
to be acquired from the
municipality to erect an additional dwelling, crèche or guest
house on the property. The applicant
alleged that the first
respondent did not make an application to the municipality for the
amendment of the land use by having it
rezoned to residential zone 2,
3 or 4 or to a business zone. In this regard, the applicant alleged
that the first respondent’s
property is used as a guesthouse.
In support of that allegation, the applicant referred to an
advertisement by an estate agent
wherein a 5-bedroom house, with
pictures of the outbuilding, is offered to be leased.
12.
By letter dated 5 November 2019 to the
municipality the applicant, through its attorney, objected to the
encroachment over the building
line and the use of the first
respondent’s property other than for single residential
purposes. It requested the municipality
to investigate the two
complaints and take the appropriate steps. In a further letter also
dated 5 December 2019 the applicant’s
attorney informed the
municipality that any subsequent or
post
facto
application for approval by the
municipality or for the rezoning of the property will be met with an
objection from the applicant,
as such approval will have the effect
of significantly diminishing the value of the applicant’s
property.
13.
By email dated 15 January 2020, the
municipality’s Assistant Town Planner informed the applicant’s
attorney that a site
inspection was conducted on 14 January 2020
and that he had spoken to the first respondent who informed him that
the outbuilding
was used as an art studio and denied that it was used
as a guesthouse. He also informed the applicant’s attorney that
the
municipality had approved the outbuilding within the prescribed
building lines, but because there was no physical boundary fence
between the two properties, “
one
cannot be able to determine for sure whether such structure is
encroaching on your client’s property [and that it] will
therefore be advisable that your client appoints a land surveyor to
determine the boundary pegs of their property in order to determine
if indeed the structure is encroaching on their property
”.
He concluded that, from a Town Planner’s point of view, the
contraventions, as alleged in his letters dated 5 November
2019, were
neither established nor witnessed and that the matter was closed. He
nevertheless stated that he copied in the municipality’s
Building Control Section to investigate whether there was any
contravention of the National Building Regulations.
14.
In a letter dated 17 March 2020 the
applicant’s attorney confirmed that on 16 March 2020 he
met with the municipality’s
legal and other representatives. In
that letter he stated that consensus had been reached that the
structure was unlawful as it
encroached over the building line; that
the applicant had employed a land surveyor who verified the beacons
of the boundary between
the two properties; that the survey confirmed
the encroachment; that the construction of the applicant’s
envisaged dwelling
was likely to cause a collapse of the earth on the
first respondent’s property; and that the municipality had
undertaken
to urgently engage with the first respondent. The
applicant’s attorney addressed letters dated 31 March and 8 May
2020 to
the municipality, but received no response.
15.
In summary, the applicant’s case is
that although the municipality had approved the first respondent’s
original and
amended building plans, such approval related to the
erection of the outbuilding within the building lines of the first
respondent’s
property and that the outbuilding could be used
for an art studio only.
16.
The
municipality did not oppose the application. The first respondent
raised three points
in
limine
in her answering affidavit. The first was that the deviation from the
building lines was consented to by the previous owner of
the
applicant’s property, that the municipality approved the
building plans and that there is accordingly no illegality.
The
second is that the applicant relied on the report dated 16 March 2015
with drawings thereto from the land surveyor that it
employed. The
second respondent contended that the applicant’s claim to set
aside the plans and obtain a demolition order
became due on 16 March
2015 when the applicant became aware of the alleged encroachment. The
first respondent accordingly contended
that, because the applicant
served the notice of motion and supporting affidavits on her on or
about 22 November 2021, more than
six and a half years, its claim has
become prescribed in terms of section 11 of the Prescription Act.
[8]
The third point raised by the first respondent was that the applicant
relied on legislation that was promulgated during or after
2016
whereas the outbuilding was erected during 1997, it being contended
that the legislation cannot operate retrospectively, making
the
legislation irrelevant to the application. Mr Beyleveld, counsel for
the first respondent, did not deal with the third point
in his
written heads of argument- or at the hearing. In any event, reference
will be made hereunder to only the Building Act and
the National
Building Regulations.
17.
The first respondent also applied to strike
out paragraph 1 of the applicant’s replying affidavit as well a
resolution as
proof of the deponent’s disputed authority to
institute the application against the respondents. The first
respondent complained
that the applicant did not appropriately deal
with the deponent’s authority to bring the application in the
founding affidavit
and that it sought to supplement its case in the
replying affidavit. In the founding affidavit the deponent described
himself as
a director in the employ of the applicant. He also alleged
that he was duly authorised by the applicant to depose to the
founding
affidavit and institute the application on its behalf.
Attached to his founding affidavit was a resolution of the
applicant’s
directors reflecting his authority to institute the
application. That document reflected that the applicant resolved on 2
November
2021, the same date when the founding affidavit was
commissioned, that the applicant intended to institute the
application against
the respondents and resolved that the deponent,
in his capacity as the applicant’s director, was authorised to
act on behalf
of the applicant and sign any documents, inclusive of
affidavits, relating to the application. The first respondent
admitted that
the deponent was a director of the applicant and many
other companies, but denied that the resolution constituted
sufficient authority
to bring the application.
18.
In this heads of argument Mr Beyleveld
submitted that the resolution did not in express terms authorise the
deponent to bring the
application. I disagree. I am satisfied that
the deponent has made sufficient averments and placed enough before
the court to warrant
the conclusion that he was duly authorised to
institute the application against the respondents on behalf of the
applicant. It
was accordingly unnecessary for the applicant to attach
a further resolution to the deponent’s replying affidavit
wherein
his authority to institute the application on behalf of the
applicant was reiterated.
19.
In
any event,
the
remedy of a respondent who wishes to challenge the authority of a
person allegedly acting on behalf of an applicant, is provided
for in
rule 7(1) of the Uniform Rules of Court.
[9]
Rule 7(1) should accordingly be applied when the authority of anyone
acting on behalf of a party is challenged.
[10]
The first respondent did not use Rule 7(1) to challenge the
deponent’s authority to institute the application on behalf of
the applicant. The application to strike out paragraph 1 of the
replying affidavit and accompanying annexure must, in the
circumstances, be dismissed.
20.
The first respondent made an application to
deliver a rejoinder affidavit in response to the applicant’s
replying affidavit.
That affidavit sought to address two issues,
namely annexures to the answering affidavit which were not initialled
by the deponent
and commissioner of oaths and the allegation that the
affidavit of the first respondent’s daughter was initially not
attached
to the first respondent’s affidavit. Both issues have
been satisfactorily explained and at the hearing Mr Brown, counsel
for the applicant, did not offer serious opposition to the admission
of those documents. The court has had regard to them in preparation
of this judgment.
21.
Section 10(1) of the Prescription Act
provides that,
subject
to the provisions of Chapters III and IV thereof, a debt shall be
extinguished by prescription after the lapse of the period
which in
terms of the relevant law applies in respect of the prescription of
such debt. The periods of prescription of debts are
set out in
section 11 of the Prescription Act. They are 30, 15 and 6 years in
terms of section 11(a), (b) and (c) respectively.
Section 11(d)
provides that, save where an Act of Parliament provides otherwise,
the period of prescription shall be three years
in respect of any
other debt. The first respondent relied on section 11(d).
22.
Mr
Beyleveld submitted that the concept of ‘debt’ is now
settled law and, for purposes of the Prescription Act, means
“
Something
owed or due
:
something (as money, goods or service) which one person is under an
obligation to pay or render to another. 2. A liability or
obligation
to pay or render something; the condition of being so obligated
.”
That is the meaning ascribed to the word ‘debt’ in
the
Shorter
Oxford English Dictionary
,
[11]
which was referred to in
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd
[12]
wherein
it was held that a debt is an obligation to pay money, deliver goods
or render services. Counsel furthermore submitted
that the word
‘debt’ refers more generally to the claim or right of
action and is wider than the technical term ‘cause
of action’.
In
Desai
NO v Desai and Others
[13]
the then Appellate Division gave a wide and general meaning to the
term 'debt', which includes an obligation to do or refrain from
doing
something that entails a right on one side and a corresponding
obligation on the other.
23.
In
Makate
v Vodacom Ltd
[14]
the Constitutional Court found that the meaning given to the term
‘debt’ in
Desai
was erroneous to the extent that it went beyond what was said in
Electricity
Supply Commission
.
It held that, because section 10(1), as read with sections 11 and 12
of the Prescription Act, limits the rights guaranteed by
section
34
[15]
of the Constitution,
the provisions of section 39(2)
[16]
of the Constitution have to be followed in construing those
provisions. The court found that an interpretation of ‘debt’
which must be preferred is the one that is least intrusive on the
right of access to courts. Jafta JA, writing the majority judgment,
found that there was nothing
in
Electricity
Supply Commission
that “
remotely
suggests that ‘debt’ includes every obligation to do
something or refrain from doing something, apart from
payment or
delivery
”.
[17]
Makate
was followed in
Off-Beat
Holiday Club and another v Sanbonani Holiday Spa Shareblock Ltd and
others
[18]
wherein Mhlantla J, writing the majority judgment, said that she was
satisfied that in interpreting the meaning of
'debt',
Makate
functionally
overturned the broad test adopted in
Desai
to
the extent that it went beyond the narrow test
in
Electricity
Supply Commission
.
24.
In the present matter the applicant did not
claim the payment of money, the delivery of goods or the rendering of
a service. The
applicant claimed an order declaring the outbuilding
to have been erected in contravention of certain legislative
provisions and
that the first respondent be directed to demolish the
outbuilding, alternatively that the second take appropriate steps in
terms
of certain legislative provisions to demolish the outbuilding
and to enforce compliance with those legislative provisions. In my
view, an order directing the demolition of a structure cannot be
equated with an order that a service be rendered. Section 10 of
the
Prescription Act accordingly does not apply to the applicant’s
claim. The submission that the applicant’s right
to pursue its
application has become prescribed can accordingly not be sustained.
Its claim has not become prescribed.
25.
It is undisputed that the first
respondent’s husband purchased their property on 31 July 1995.
One of the conditions contained
in the Deed of Transfer was that no
building or structure or any portion thereof, except boundary walls
and fences, shall, except
with the consent of the Administrator, be
erected nearer than 1500mm of the lateral boundary common to any
adjoining erf, provided
that, with the consent of the municipality,
an outbuilding used solely for the housing of motor vehicles may be
erected within
such side space.
26.
The first respondent alleged that her
husband sought and obtained the written consent of Malcolm Baines,
the previous owner of the
applicant’s property, to erect the
outbuilding nearer than 1500mm from the boundary between the two
properties. She attached
a copy of application, with the building
plans of the proposed outbuilding, to her affidavit. The first
respondent alleged that
the written consent was given to the
municipality but, given the effluxion of time, it is not in the
municipality’s files.
She also alleged that Mr Baines orally
informed her that her husband had given consent and her husband also
informed her that Mr
Baines had given his consent. The municipality
approved the building plans on 19 February 1997. The first respondent
did not dispute
that the outbuilding is about 290mm at the closest
point and 830mm at the furthest point from the boundary between the
two properties.
The first respondent’s husband passed away on
28 August 2004 and on 11 January 2008 the property was transferred
into her
name.
27.
The first respondent confirmed the approval
by the municipality of the amendment of the building plans on 2 April
2008 and 13 May
2015. In 2008 the municipality approved the
conversion of the garage into a pottery studio and a bathroom and the
carport into
an art studio. In 2015 the municipality approved the
addition of an office and two store rooms to the existing
outbuilding. The
2015 addition is irrelevant for present purposes
because it was erected entirely on the first respondent’s
property. It is
the side wall of the pottery studio that encroaches
the building line on the first respondent property’s closest to
the boundary
between the two properties. Although much has been made
by the first respondent in her answering affidavit about the reasons
for
the applicant not yet having commenced the construction of its
residential dwelling on its property, it is irrelevant for the
determination
of the real issue, namely whether the first
respondent’s outbuilding encroached the building line with or
without Mr Baines’
written consent and with the municipality’s
approval.
28.
What has to be determined is whether or not
Mr Baines consented to the first respondent erecting the outbuilding
over the building
line and that the municipality approved the
building plans on that basis. If it is determined that such consent
was granted, the
application must be dismissed because the erection
of the outbuilding would then have been approved by the municipality
with the
consent of Mr Baines.
29.
For her contention that such consent was
granted, the first respondent relied on two sources. The first is the
application that
her late husband made to the municipality on 17
February 1997, a copy which was attached to her answering affidavit.
The difficulty
I have with that application form is that it does not
support the allegation that her husband made an application that the
outbuilding
be erected over the building line. Neither the
application form nor the building plans contained any indication that
the first
respondent’s husband sought or the municipality
approved the erection of the outbuilding over the building line. Both
the
applicant and the first respondent obtained documents, some of
which were attached to their respective affidavits, from the
municipality.
The only document which, according to the first
respondent, could surprisingly not be found in the municipality’s
files,
was the written consent allegedly given by Mr Baines. The
second source upon which the first respondent relied was her
daughter,
who simply alleged in her confirmatory affidavit that she
had read the first respondent’s answering affidavit and
confirmed
the correctness of the allegations contained therein in so
far as they related to her. Given the fact that the applicant’s
deponent stated in his founding affidavit that the first respondent
did not obtain approval from the municipality to erect the
outbuilding over the building line, one would have expected the first
respondent and her daughter to have stated when, where and
the
circumstances under which her late husband and father allegedly
informed them that he had obtained Mr Baines’ written
consent.
Neither one did so. Furthermore, there was no explanation why Mr
Baines could not depose to an affidavit to confirm having
given his
consent. The first respondent also did not secure an affidavit from
an appropriate person employed by the municipality
to either explain
why the alleged missing written consent was not in the relevant file
or that the municipality would not have
approved the outbuilding to
be erected over the building line without written consent from
Mr Baines. Without such affidavit
this court cannot, on the say
so of the first respondent, make a finding that the municipality
would not have approved the building
plans of the outbuilding without
such written consent. Such a finding would be based on speculation.
30.
In the circumstances, I cannot sustain Mr
Beyleveld’s submission that the first respondent’s
version does not consist
of bald or uncreditworthy denials, nor are
her explanations palpably implausible, far-fetched or clearly
untenable that this court
is justified in rejecting them on the
papers. The 1997 application to the municipality and the allegations
of the first respondent’s
daughter to her have no or very
little evidential value. In my view, the first respondent’s
version in that regard is implausible
and is rejected. It is the
applicant’s denial of the first respondent’s allegations
in that regard that is, in the
circumstances, not uncreditworthy or
far-fetched.
31.
The
result of that finding is that the approval of the building plans by
the municipality and the erection of the outbuilding did
not happen
with Mr Baines’ written consent to the first respondent’s
late husband for the erection of the outbuilding
over the building
line. The erection of the outbuilding contravened the National
Building Regulations, which, in terms of the Building
Act, are
included in the Act.
[19]
As
pointed out above, the erection of any building above the ground
outside the building line is prohibited by the definition of
‘building line’ in the National Building Regulations.
[20]
The erection of the outbuilding was accordingly unlawful, in so far
as it was erected over the building line.
32.
The applicant’s complaint was not
directed at the municipality for having approved the building plans
of the outbuilding in
1997 or thereafter. Its complaint was directed
at the first respondent or her late husband’s failure to erect
the outbuilding
within the building lines on their property. It was
submitted on behalf of the first respondent that, absent the
successful review
of the administrative decision to approve the
building plans, the first respondent’s actions consequent
thereto remain valid
and lawful. That submission cannot be sustained.
It was premised on the misconception that the building plans were
unlawfully approved
by the municipality. I repeat, it was not the
applicant’s case that the municipality approved the building
plans in contravention
of any legislation. There was accordingly no
need for the applicant to institute an application for an order
reviewing and setting
aside the municipality’s decision to
approve the building plans, as contended by the first respondent. The
applicant seeks
an order declaring that the erection of the
outbuilding was unlawful because it was erected over the building
line. The applicant
has succeeded to show, in fact it is common
cause, that the outbuilding was erected over the building line. The
first respondent
has failed to show that the municipality approved
the erection of the outbuilding based on the alleged written consent
of Mr Baines.
In view of the above finding, it is unnecessary to
decide the whether or not the outbuilding constitutes a second
dwelling in circumstances
where a second dwelling is prohibited by
the Deed of Transfer.
33.
What needs to be considered is a just and
equitable remedy given that the outbuilding encroaches the building
line on the first
respondent’s property. It is undisputed that
the applicant’s property is on a slope. After it purchased the
property,
it had plans drafted for the erection of a residential
dwelling in the centre of the property. It was subsequently decided
not
to erect the dwelling in the middle of the property because
firstly, the construction thereof, on a slope, would require costly
earth works with high costs of construction; and secondly, there are
many milkwood trees on the property which, in its view, add
substantially to the beauty of the property. It accordingly decided
to avoid a layout which would require the removal of those
trees. The
amended building plans, which have been approved by the municipality,
repositioned the envisaged dwelling closer to
the boundary which the
applicant shares with the first respondent.
34.
The applicant alleged that the erection of
the envisaged dwelling in accordance with the amended building plans
will require large
scale engineering works, inclusive of subterranean
excavations for foundations. Those excavations will be undertaken
immediately
adjacent to the first respondent’s outbuilding. The
applicant alleged that those excavations would pose a serious danger
to the foundations of the outbuilding. The first respondent’s
unhelpful attitude in this regard was that, because the applicant
acknowledged that the execution of its building plans would pose a
serious danger of undermining the foundations of the outbuilding,
the
application should for that reason alone be dismissed with costs.
35.
In the light of the applicant’s
undisputed evidence, will a damages claim by the applicant against
the first respondent be
appropriate or should this court order a
demolition order? In my view, a damages claim will not undo the above
dangers alluded
to by the applicant. The applicant’s fears of
damage to the foundations of the outbuilding, with possible adverse
consequences
to the applicant or its envisaged dwelling are real.
A
remedy in damages might not be an answer to that problem.
In my view and given the circumstances, the appropriate remedy is to
order the demolition of the outbuilding, but only to the extent
that
it encroaches over the building line. However, because of the drastic
nature of demolition, the first respondent should be
given an
opportunity to establish that the construction of the applicant’s
envisaged dwelling will not pose any real risk
to the outbuilding or
the construction of the applicant’s envisaged dwelling. It is
for that reason that the order has been
formulated in the fashion set
out below.
36.
Since the applicant has been successful, it
is entitled to the costs of the application. It would be appropriate
for each party
to pay its or her own costs relating to the first
respondent’s application to deliver a rejoinder affidavit in
response to
the applicant’s replying affidavit.
37.
In the result, the following order shall
issue:
1.
It is declared that the structure, erected
pursuant to building plans approved by the second respondent on 27
February 1997 (the
outbuilding), upon erf 1561, Kenton-on-Sea, in the
area of jurisdiction of the Ndlambe Local Municipality, Province of
the Eastern
Cape, measuring 933 square metres, has been unlawfully
erected since it encroaches the building line closest to the boundary
with
erf [....], Kenton-on-Sea, in contravention of the National
Building Regulations made under the National Building Regulations and
Building Standards Act, 1977 (Act 103 of 1977).
2.
The first respondent be and is hereby
directed to demolish the outbuilding, only to the extent that it
encroaches over the building
line.
3.
The partial demolition of the outbuilding
shall not take place unless and until a suitably qualified engineer
(the engineer) has
issued a certified as to whether or not:
3.1
the construction of the applicant’s
envisaged residential dwelling, as envisaged in the approved building
plans (Annexure
FA4 of the applicant’s founding affidavit),
will compromise the structural integrity and safety of the first
respondent’s
outbuilding; and
3.2
the outbuilding will compromise the
construction of the applicant’s envisaged residential dwelling.
4.
The first respondent shall, at her expense,
employ the engineer to produce the certificate, with reasons for the
conclusions at
which he or she has arrived.
5.
The first respondent shall serve a copy of
the engineer’s certificate on the applicant’s attorney
and the second respondent
on or before 28 February 2023.
6.
In the event of the first respondent
failing to serve the engineer’s certificate on or before 28
February 2023, she shall
partially demolish the outbuilding on or
before 17 March 2023.
7.
The first respondent shall pay the
applicant’s costs of the application, save that each party
shall pay its or her own costs
relating to the first respondent’s
application to deliver a rejoinder affidavit in response to the
applicant’s replying
affidavit.
GH BLOEM
Judge of the High Court
For the
applicant:
Mr G Brown, instructed by de Jager & Lordan Inc, Makhanda.
For the first respondent:
Mr A Beyleveld
SC, instructed by Wheeldon
Rushmere and Cole Inc,
Makhanda.
Date of
hearing:
18 August 2022.
Date of delivery of
judgment: 15
December 2022.
[1]
National
Building Regulations and Building Standards Act, 1977 (Act 103 of
1977), as amended.
[2]
R
egulations
made under section 17(1) of the
National
Building Regulations and Building Standards Act
,
published under Government Notice R2378 in Government Gazette 12780
of 12 October 1990, as amended.
[3]
Ndlambe
Local Municipality Spatial Planning and Land Use Management By-Laws,
published under GN 2 in Government Gazette 39733
of 26 February
2016.
[4]
Ndlambe
Municipality Land Use Scheme, as approved in terms of section 24(2)
of the Ndlambe Local Municipality Spatial Planning
and Land Use
Management By-Laws, which came into operation on 1 June 2019.
[5]
Spatial
Planning and Land Use Management Act, 2013 (Act 16 of 2013).
[6]
In
terms of
the
National
Building Regulations
‘
building
line’, in relation to a site, means a line prescribed in any
town planning scheme or any other law designating
the boundaries of
the area of the site outside of the erection above ground of any
building prohibited and in terms of the Ndlambe
Municipality Land
Use Scheme “building line” means the distance from the
cadastral line within which no building
or structure, excluding a
boundary wall, pergola or fence, may be erected.
[7]
In
terms of the Ndlambe Municipality Land Use Scheme “cadastral
line” means a line representing the official boundary
of a
land unit as recorded on a diagram or general plan approved by the
Surveyor General and registered in the Deeds Office.
[8]
Prescription
Act, 1969 (Act 68 of 1969).
[9]
Rule
7
(1)
provides that “Subject to the provisions of subrules (2) and
(3) a power of attorney to act need not be filed, but the
authority
of anyone acting on behalf of a party may, within 10 days after it
has come to the notice of a party that such person
is so acting, or
with the leave of the court on good cause shown at any time before
judgment, be disputed, whereafter such person
may no longer act
unless he satisfied the court that he is authorised so to act, and
to enable him to do so the court may postpone
the hearing of the
action or application.”
[10]
Unlawful
Occupiers, School Site v City of Johannesburg
2005
(4) SA 199
(SCA) at 206F-G
.
[11]
The
New
Shorter Oxford English Dictionary
Third Edition (1993) volume 1 at 604.
[12]
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd
1981 (3) SA 340
(A) at 344E-G.
[13]
Desai
NO v Desai and others
1996
(1) SA 141 (A).
[14]
Makate
v Vodacom Ltd
2016 (4) SA 121
(CC) at par 90.
[15]
Section
34 of the Constitution provides that e
veryone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.
[16]
Section
39(2) of the Constitution provides that, when interpreting any
legislation, and when developing the common law or customary
law,
every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.
[17]
Makate
above n 14 at par 93.
[18]
Off-Beat
Holiday Club and another v Sanbonani Holiday Spa Shareblock Ltd and
others
2017 (5) SA 9 (CC) at par 48.
[19]
In
terms of section 1 of the National Building Regulations and Building
Standards Act, “this Act” includes the national
building
regulations made and directives issued in terms of it.
[20]
See
above n 6.