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[2020] ZALMPPHC 14
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Cachalia v Lehwright Proprietary Limited (Makgoba JP, Phatudi J, Tshidada AJ) [2020] ZALMPPHC 14 (26 March 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
APPEAL
CASE NO: HCA 02/2019
COURT
A QUO
CASE NO: 2084/2016
In
the matter between:
YUSUF CACHALIA
APPELLANT
and
LEHWRIGHT
PROPRIETARY
LIMITED
RESPONDENT
(Registration
Number: 2004/006065/07)
JUDGMENT
MAKGOBA
JP
[1]
This
is an appeal against the judgment and order of a single Judge of this
Division (Mokgohloa DJP, as she then was) ordering that
the Appellant
(the neighbour of the Respondent) shall demolish a pigeon loft which
he constructed on his property which is adjacent
to the Respondent,
and to stop keeping pigeons on the property in a manner that creates
a nuisance. The appeal is with leave of
the Court a
quo.
[2]
The
Appellant is the registered owner of a property described as Erf
4460, Mokopane ("Erf 4460"). This property is adjacent
to
the Respondent's property and the pigeon loft erected on Appellant's
property is the subject of the dispute in this matter.
The property
was bought as a vacant stand in February 2011. The Appellant is also
the owner of Erf 4459, Mokopane ("Erf 4459")
adjacent to
Erf 4460 on which the pigeon loft is erected. This property, Erf 4459
is a residential property and the Appellant and
his family are
residing on same. The property was bought in August 2012.
[3]
The
Respondent is the owner of a property described as Erf 4461, Mokopane
("Erf 4461"). The Respondent erected a residential
house on
the property and Mr and Mrs Lehman are residents there. The property
was bought in March 2009.
[4]
The Court a
quo
granted the following order which is
appealed against:
1.
The
defendant is directed to demolish the pigeon lofts where they
currently stand.
2.
The
defendant is directed to stop keeping pigeons in a manner which
creates a nuisance for the plaintiff.
3.
Costs
of suit on attorney and client scale and such costs to include costs
in the interim application, experts' fees and costs consequent
to the
employment of two Counsel.
Pleadings
[5]
The
Respondent (as the Plaintiff in the Court a
quo)
alleged the following in its
particulars of claim:
“
7.
The Defendant built a pigeon loft on Erf 4460,
in extent 116 square meters, less than 1 meter from the common
boundary line with
the property of the Plaintiff, in contravention of
the approved building plans and the site plan and further in
contravention of
the special consent applied for by the Defendant
from the Mogalakwena Local Municipality, which consent further lapsed
due to the
non-fulfilment of the conditions and requirements of the
Mogalakwena Local Municipality."
8.
"The Defendant occupied the pigeon lofts
with pigeons on a large and extended scale and thereby creates a
persistent and continued
nuisance for the sound and smell and health
risk emanating therefrom."
[6]
The
Appellant (as the Defendant in the Court a
quo)
pleaded as follows to the above
allegations in the particulars of claim:
"
6.
PARAGRAPH 7 THEREOF
6.1.
The defendant admits having built a
pigeon loft on Erf 4460, in extent 116 m
2
, less than 1 m from the common boundary line with the property of
the Plaintiff.
6.2.
The balance of the allegations is denied
6.3.
Defendant pleads that it erected the
pigeon loft in strict compliance with the approved building plans and
site plan and in strict
compliance with the special consent of the
Mogalakwena Local Municipality and denies that the consent lapsed due
to the fulfilment
of the conditions and requirements of the
Mogalakwena Local Municipality.
7.
PARAGRAPH 8 THEREOF
7.1.
The
Defendant admits having occupied pigeon loft with pigeons. The
Defendant denies that the occupation is on a large and extended
scale. The Defendant pleads that the occupation is on a small scale
given the facilities developed.
7.2.
Defendant
denies that a persistent and continued nuisance is created for the
Plaintiff and denies that unacceptable sound and smell
risk emanate
from the pigeon loft."
Issues
[7]
As
it appears from the pleadings stated above, the Appellant admits
having built the pigeon loft less than 1 meter from the common
boundary line with the property of the Respondent. Save for this
admission the Appellant denies all the allegations and pleaded
that
he erected the pigeon loft in strict compliance with all legislative
and legal requirements. He further denied that a persistent
and
continued nuisance is created for the Respondent and denied that
unacceptable sound, smell and health risk emanate from the
pigeon
loft.
[8]
The
issues to be determined in the proceedings before the Court a
quo
and in this appeal are:
(a)
Whether
the Appellant constructed the pigeon loft in compliance with
legislative and legal requirements including the Town Planning
Scheme
and
(b)
Whether
the pigeon loft and the keeping of the pigeons create a persistent
and continued nuisance for the Respondent.
Common
Cause Facts
What follows are facts which are common cause
and not seriously disputed.
[9]
9.1.
The Respondent was informed by its
employee, one Nasima Gangat, that the Appellant intended to construct
a pigeon loft on Erf 4460.
The information
was received by Mr Lehman, the director of the Respondent company. On
7 October 2014 Mr Lehman addressed an email to the Appellant
concerning the intended construction of the pigeon loft. He stated
that pigeons give off an odour and make noise. He stated further that
the prevailing wind in that area is from the north west
and that
the pigeons are going to be right in his face. He asked that the
pigeon loft be erected as far as possible from his boundary
walls so
as to minimise the effects.
9.2.
The Appellant responded to Mr Lehman's
email and stated among others:
"A racing pigeon fancier lives just a few
doors away from you! I am certainly going to be pursuing my noble
hobby without infringing
the rights of others, least of all the
rights of my neighbours who have a right to an existence free as
possible from any nuisance"
Furthermore the Appellant stated:
"I
also note your suggestion that the loft be built away from your
boundary wall. It was my intention to erect a double-storey
structure
on the south-west corner of the plot, but after receiving your email
and picture of your view of the mountain, I have
decided against
doing so as it would spoil our view of a very scenic part of the
great Waterberg Mountain Range.
[10] The Appellant
started making enquiries at Mogalakwena Local Municipality regarding
the requirements
for the construction of a pigeon loft. He loosened
with one Mr Solani Ntshani. The Appellant was advised that he should
(i) apply
for special consent to do so and (ii) complete a form
titled: Application for Consent Use in Terms of the Greater
Potgietersrus
Town Planning Scheme 1997 and that (iii) all the
neighbours bordering Erf 4460 had to sign the consent form. He was
further advised
to fix a notice on the front gate of Erf 4460
indicating that he was lodging an application for a special use
consent of the property
and that anyone who wishes to object should
do so within 28 days. The Appellant completed the form and obtained
the necessary documentation.
He took the consent form to his
neighbour Mr Lehman, who signed it on 10 November 2014. He also
affixed the prescribed notice on
the front gate of Erf 4460. On same
date, 10 November 2014, the Appellant submitted the required consent
form and paid an amount
of R 583.00 to the Municipality. Attached to
the consent form were some correspondences and a site development
plan. From the annexures
it appeared that (i) the R 583.00 was paid
in respect of the special / written consent (ii) a site development
plan attached stated
that the proposed loft was to be constructed
approximately 2 meters from the boundary line.
[11]
On 12 December 2014 the local
municipality gave conditional approval of the application for a
special consent for the construction
of a racing-pigeon loft subject
to certain conditions. The relevant conditions being that:
11.1.
The building line can only be relaxed
from 2 meters to 1 meter and a high wall be erected in the direction
where the building is
to be relaxed.
11.2.
No title condition shall be
transgressed.
11.3.
The primary use of the Erf shall remain
residential.
11.4.
The applicant shall after approval by
the local municipality be obliged to, on an annual basis, in a month
during which the applicant
was notified of the approval, submit an
affidavit in confirmation of inter alia the fact that the conditions
pertaining to such
approval and use are fully complied with.
11.5.
The applicant had to inform the council
within 30 days in writing whether he accepts the above conditions and
intends to proceed
with his proposed activities or not, failing which
it will result in the cancellation of the consent granted to him.
[12]
On 19 May 2015 the Appellant submitted
the building plan indicating that a building was to be erected on the
south eastern border
of Erf 4460. The building were as per site
development plans, and no relaxation of the building line was sought.
Mr Pieterse, the
Divisional Head: Building, at Mogalakwena Local
Municipality, entered a query relating to the building plans
submitted stating
that the building was not a residential unit. On 29
May 2015 and 4 June 2015 Mr Pieterse addressed a letter to the
Appellant stating
that the building plans could not be approved
because of some incomplete information and urged the Appellant to
rectify and re-submit.
On 1 July 2015 Mr Pieterse signed off the
building plans. Soon thereafter, and on 2 July 2015, the
municipality's technical services
addressed a letter to the Appellant
informing him that the building plans were approved. The letter
stated further that (i) an
Occupational Certificate should be
obtained before the building can be occupied and (ii) no deviation
from approved plans is allowed
without consulting with the building
inspectors. Construction of the pigeon loft commenced during August
2015. It appeared from
the municipality's file that a note was
entered on 27 August 2015 by building inspectors indicating that the
contractor has changed
the dimensions of the building line on the
east to 1 meter instead of 2 meters as per the building plans.
[13]
In the meantime and when construction of
the loft commenced, Mr Lehman was overseas. He noticed upon his
return that construction
of the loft had started. On 24 August 2015
he forwarded an email to the Appellant stating that he was concerned
with the position
of the loft on the Erf. He stated that it seemed
that the Appellant was building the loft as far as possible from the
Appellant's
house. Mr Lehman received no response from the Appellant.
On 27 November 2015 Mr Lehman addressed another email to the
Appellant
requesting the Appellant not to insult him and build the
loft under his nose. He complained that the building was an eyesore
and
referred to health hazards as a primary concern. The Appellant
did not respond. A meeting was held on 4 or 5 December 2015 between
the parties in an attempt to resolve Mr Lehman's concerns.
[14]
On 1 March 2016 a zoning certificate was
issued in respect of Erf 4460 indicating that the Erf can be used as
a dwelling house with
or without outer buildings and can be used to
some other land users which included a special use permitted in terms
of a special
consent. The pigeons moved in during April 2016. The
health inspector issued a report on 4 April 2016. This report related
to an
inspection of a loft building which was on 9 March 2016 prior
to the pigeons moving in.
[15]
On 13 June 2016 the Respondent issued
summons and brought an application for interim relief against the
Appellant. In its application,
the Respondent sought an interim order
that the Appellant remove the pigeons from the loft pending the
outcome of the main action.
On 23 June 2016 the Appellant filed his
notice to oppose the application. He filed his answering affidavit on
18 July 2016. It
seems the Respondent abandoned its application for
an interim relief.
[16]
On 3 April 2017, the Respondent's
attorneys addressed a complaint to the municipality to take steps in
terms of its bylaws in particular
section 16(c) read with section
4(a) regarding the restriction of required distance between the
boundary wall, the building line
and also to refer the matter to
health inspector to investigate any nuisance and health risks that
may emanate from the pigeon
loft.
The
Evidence
[17]
Various witnesses testified for both the
Appellant and Respondent at the trial in the Court a
quo.
Five witnesses testified for the
Plaintiff (Respondent herein) and seven witnesses testified for the
Defendant (Appellant herein).
The Court a
quo
in my view, considered the evidence
with reference to credibility, reliability and probabilities as
required in line with case law
[1]
.
I
proceed to set out the evidence of each witness and evaluate such
evidence as and when I deal with the evidence of each witness.
[18]
Mr JM Lehman testified that he addressed
the email to Dr Cachalia (Apellant) on 7 October 2014 after having
been informed of the
Appellant's intention to erect a pigeon loft. He
indicated that the pigeons give an odour and noise, that the
prevailing wind was
from north-west and that the loft had to be
erected as far as possible from the Respondent's boundary line. He
considered the Appellant's
response to the email and was not informed
that the loft would be of such a large extent and next to his
boundary wall.
In the spirit of good neighbourliness, he
signed the Consent Form.
There
was nothing of the relaxation in the Consent Form, and if it was, he
would not have consented. This last mentioned aspect
was not
contested by the Appellant's legal representative during
cross-examination.
[19]
Mr Lehman complained about the constant
cooing sound of the pigeons (he stated it is intolerable) and smell
and the wind blowing
over the loft from north westerly
direction. This was enhanced by the U-shape of the loft. He stated
that pigeons cause dust.
This embarrassed him when he entertained
guests. Pigeons were also seen to sit on the ridge of the roof of the
structure, and was
constantly aware of the pigeons. The pigeons have
unrestricted airspace and came over into his house. Pigeon dust
constitutes a
nuisance. This clearly causes a nuisance and also
affected the value of his property negatively. The view to the
mountain was spoiled
with the unsightly structure of the pigeon loft.
[20]
Most of Mr Lehman's evidence was
uncontested. The Court a
quo
correctly accepted that Mr Lehman
was a credible witness, his evidence was reliable and supported by
the probabilities.
[21]
Mrs Judy Lehman primarily came to
testify about the nuisance. She is the person that spends the most
time in the Respondent's house,
and the house is her castle. She
convincingly animated the cooing sound of the pigeons, spoke about
the smell, the pigeon droppings,
the feathers all over her garden and
the white dust all over her house that she observed and which she and
her assistant Annah
had to clean. She also spoke about the spoiled
view with ugly loft structure, and the impact thereof on their
entertainment area.
[22]
According to Mrs Lehman pigeons were on
her side of the boundary line and even entered her bedroom. Same
could be identified by
the tags they carried. She stated that .her
ability to entertain guests was compromised. No wonder she in a
heated moment, accused
Dr Cachalia (the Appellant) of being a selfish
person.
[23]
The Court a
quo
accepted the version of Mrs Lehman
as a credible and reliable witness and that the balance of
probabilities supported her version.
The Court a
quo
cannot be faulted in this regard.
[24]
Mr HJ Marx, a property valuator,
testified about his visits to the subject property on three
occasions. The cooing sound was to
be heard from almost all over the
property. It was non-stop and was very irritating and annoying. He
recognised a distinct smell
blowing over, which reminded him of his
childhood on the farm where as children, had pigeons. He stated that
the smell would be
as a result of the pigeon droppings or the feather
dust.
[25]
Mr Marx stated that he was shocked by
the impression of the pigeon loft. From the aesthetical perspective,
the pigeon loft was unsightly,
it was of an inferior craftsmanship
and poor finishes. He came to the conclusion that the Respondent's
property value was negatively
compromised. This piece of evidence was
uncontested in cross-examination or even in any evidence of any
expert presented on behalf
of the Appellant. His evidence , as an
independent expert witness, stands unchallenged.
[26]
Mr Christo Du Toit is an architect. He
testified that the area where the Respondent's property is situated,
is an upper-class area
and the Respondent's house has high class
finishes. He heard the cooing sounds the whole day which was
unacceptable, and they had
to move inside the house during his first
visit to the Lehmans. The pigeon dust created a sort of a smoke,
haziness coming from
the pigeon loft. He questioned Dr Cachalia's
conduct in building the structure near the Respondent's property and
why it was not
built to Dr Cachalia's own home. He also criticised
the aesthetics of the pigeon loft, calling it a "monstrosity",
especially
as different materials were used. The ridging was of a
cement material, not level, one wall on the Respondent's side was not
plastered,
the IBR roof plates are of a thin and cheap quality. All
in all it was unacceptable.
[27]
The credibility of this witness was
unassailable and the probabilities supported his version. His
evidence was correctly accepted
by the Court a
quo.
[28]
Ms Irene de Villiers testified on behalf
of the Respondent and stated that she was previously employed by
Mogalakwena Municipality
and was involved with issues relating to the
promulgation of bylaws. She referred to the current bylaws applicable
to the keeping
of birds and aviaries and stated that it was
prohibited to erect an aviary within 3 meters from the boundary wall.
Furthermore,
the Municipality letter dated 12 December 2014
(Conditional letter of Approval of Consent to the Special Use)
addressed to the
Appellant stated among others that the building line
can only be relaxed from 2m to 1m and a high wall be erected in the
direction
where the building is to be relaxed. The building plans
stated clearly that any building built along the boundary line must
be
at least 2m from such boundary line. These conditions and
stipulations have to be complied with.
[29]
According to Ms de Villiers any special
consent relating to a use, does not change the position that the
primary use should remain
residential and be occupied for that
purpose. In other words the consent for pigeon loft can only be
granted if a residential unit
is approved. Accordingly, the Town
Planning Scheme 1997, did not override the by-laws. Even if consent
is given, the by laws
should still be adhered to. To act
contrary to the by-laws is unlawful. The credibility of this witness
could not be faulted.
[30]
The Appellant, Dr Yusuf Cachalia
testified and described himself as a pigeon fancier, who achieved a
lot as a hobbyist in the pigeon
breeding and racing sector. His
ideals were to establish a pigeon loft nearby his residence in order
to pursue his hobby. The evidence
of the Appellant was mainly on the
facts that are common cause as outlined earlier in this judgment. He
testified on the process
he embarked upon when he applied to the
Mogalakwena Municipality for the consent to build the pigeon loft and
ultimately brought
the pigeons to the premises. I accordingly proceed
to comment on his evidence in order to determine his credibility and
the reliability
of his evidence.
[31]
Regarding the position where the loft
was erected, the Appellant was unable to present an answer to the
question why he did not
construct the pigeon loft nearer to his own
home. He could not explain why he did not respond to the request as
per Mr Lehman's
e-mail of 7 October 2014, why he did not build the
pigeon loft as far as possible from Mr Lehman's boundary. It is
common cause
that the pigeon loft is built less than 1 meter from the
boundary line.
[32]
When the Consent Form was brought by him
to Mr Lehman for the latter to sign the Appellant failed to be open
and frank to Mr Lehman
and tell him what his true intentions were,
despite the fact that by that time the Site Development Plan had been
drawn. He did
not disclose the Site Development Plan to Mr Lehman.
Despite the fact that the Site Development Plan and building plans
were already
lodged but were not allowing the extension to the
boundary line for less than 1m, the Appellant instructed the builder
to erect
the structure on less than 1m from the building line, and
without any building plans allowing same.
[33]
The Appellant conceded that even if a
structure was properly and legally erected, this did not prevent the
neighbour to complain
of a nuisance, be that of sound or smell. He
steadfastly refused to accept that all the combined factors could be
a nuisance, although
admitting that other parties who are not pigeon
fanciers could have a problem in smelling, cooing and other factors
emanating from
pigeons. He stated that the loft building was cleaned
on a regular basis, however he later conceded that the Lehmans could
be smelling
the pigeons or their droppings. He conceded that it is
possible that the wind can carry the sound and dust in that it can go
out.
He also conceded that the Lehmans could smell the pigeons and
droppings and endure smells. The cooing to him was like music in his
ears, and the smell attractive to him, but on a question by the Court
he conceded that he cannot dispute that is could bother other
people.
[34]
My overall assessment of the Appellant
as a witness is that his candour and demeanor were argumentative and
evasive and not easily
prepared to concede the obvious. He lacked the
necessary credibility and his evidence was unreliable.
[35]
Mr Louis Johannes Pieterse testified on
behalf of the Appellant. He was employed as divisional head,
buildings at Mogalakwena Municipality.
He testified that in terms of
the National Building Regulations and Standards Act, 1977 the
building inspector has to recommend
the plans and the building
control officer had to sign same off on behalf of Municipality. It
came out during cross-examination
that Mr Pieterse was neither the
building control officer nor was he authorised to sign off the plans
on behalf of the Municipality.
This then meant that the building
plans and the deviations were never approved by the duly authorised
building control officer.
In as much as Mr Pieterse purported to sign
off those plans such recommendation for approval is in my view, null
and void.
[36]
Mr Pieterse testified further that the
site development plan and the first building plans had no relaxation
of the boundary line.
He stated that the building plans were only
changed later to accommodate the relaxation of the building plans.
This according to
him was called deviation. He conceded that he asked
for deviation on 27 June 2016. He conceded that without a
recommendation by
the building control officer the requirements for
approval of building plans were not satisfied.
[37]
It came out from the evidence of Mr
Pieterse that the building plans and even the deviations were never
recommended by the building
control officer or anyone acting on
behalf of the Municipality. Mr Piterse, by signing the control sheet
on the Municipality's
file as "the building control officer"
has done so clearly knowing that he was not the "building
control officer''
and accordingly intentionally misrepresented
himself to hold such position, and he was in fact not authorised to
sign any building
plans or deviation plans at all.
[38]
The Appellant called Dr Ockert Botha, a
pigeon fancier, to testify as an expert and express a professional
opinion with regard to
the transmission of diseases from animals to
human beings. Dr Botha testified that the health risk of a pigeon
loft is minimal
and that none of the organisms which Mr Lehman
pointed out pose any significant threat to human beings. Despite
being called as
an expert regarding the diseases the pigeons may
transmit to human beings, Dr Botha went further to testify about the
quality of
the Appellant's loft which he observed for the first time
on the morning of the day he was to testify. According to him the
Appellant
spent a lot of money on the perfect pigeon loft structure
which according to him, is second to none in South Africa and that
only
the Prince of Saudi Arabia has a better pigeon loft to that of
the Appellant.
[39]
The evidence of Dr Botha was largely
irrelevant to the case before the Court a
quo.
His evidence was one sided and could
not qualify as that of an expert witness. No wonder Counsel for the
Respondent labelled Dr
Botha as "the hired gun". Of
significance in this case Dr Botha nevertheless conceded that pigeons
can be a nuisance
to some people and smells, sounds and other factors
can be offensive and disturbing to other people who do not like
pigeons.
[40]
Mr Eugene Barnard, a professional
architect, testified on behalf of the Appellant. He had compiled a
report wherein he described
the structure of the pigeon loft,
considered the regulatory constraints applicable to the design of the
structure, evaluate the
design and commented on the potential impact
of the structure. According to him the loft building is
well-constructed and finished
to a reasonable standard.
[41]
Under cross-examination Mr Barnard was
referred to the roof structure of the loft as depicted on photos 13
and 14 of Bundle A. He
was referred in particular to the different
materials used on the roof and ridges of the loft. His comments were
that the roof
view as depicted on these photos is not neat and is
disturbing. He would not have designed the plan like that. He also
commented
on the unplastered wall on the Respondent side and stated
that this was not acceptable.
[42]
The evidence of this witness seems to
corroborate the evidence of Christo Du Tait, the architect who
testified on behalf of the
Respondent, to the effect that the loft
building presented an unsightly view.
[43]
Mr Yeenan is the drafter of the site
development plan and the building plans. In his testimony he said
that he told the Appellant
to put in "and
relaxation
of the building line from 2m to 1m".
However
he could not give the date when he so directed the Appellant. His
evidence was of no assistance to the Appellant.
[44]
Mrs Mamakoko of the Municipality's
Health Department testified that she inspected the loft: when she
previously inspected in the
loft, the pigeons were not in it. She
simply walked through the loft and stated that she found it clean.
Her second visit was on
4 June 2018 when the pigeons had already
arrived. The Appellant received her and she did another inspection.
Her conclusion was
the same as the first inspection.
[45]
Mr Kekana, an employee of the Appellant
testified. He stated that he cleans the loft four times a week. He
then gathers droppings
and disposes them at the dumping site.
According to him, the condition inside the loft is clean and the
smell is not unbearable.
He estimated the number of pigeons to the
between 400 to 450.
[46]
Mr Ntshani, the Town Planner, testified
on behalf of the Appellant. He stated that the Municipality received
the Appellant's application
for a special consent to construct a
pigeon loft on a residential stand 4460. The application was
submitted together with a site
development plan. Once satisfied that
there was no objection raised after 28 days, and that the Appellant's
neighbour at Erf 4461
had consented to the relaxation of a building
line from 2m to 1m, they approved the application. Under
cross-examination Mr Ntshani
conceded the town planning department
should, in the consideration of a town planning application
(construction of a pigeon loft)
also look at and consider the
by-laws. He however stated that he was not aware of the existence of
a by-law dealing with pigeon
and aviary restricting the building line
to boundary line. He nevertheless accepted that such by-laws were in
existence as same
were brought to their attention after the
application was approved. According to him if they were aware of the
existence of this
by-laws, they would have considered them.
[47]
Mr Ntshani was asked whether the
Appellant had respondend to the Municipality letter dated 12 December
2014 (the conditional consent
letter) calling upon the Appellant to
respond within 30 days in writing whether he accepts the conditions
set out in the letter.
He responded that the Appellant did respond.
He was however not able to state when did the Appellant respond and
could not even
present a copy of such response from the Municipality
records or file.
[48]
Mr Ntshani was referred to a copy of the
Consent Form signed by Mr Lehman which was contained in the
Municipality file. The Court
a
quo
correctly noted that it is clear
from the copy of the form that the relaxation clause appeared to have
been written or inserted
using a different pen from the rest of the
Consent Form. In fact the relaxation clause is in original writing
whilst the other
words immediately preceding the clause are
photocopied. It showed a possible forgery. When confronted with this,
Mr Ntshani refused
to acknowledge the obvious discrepancy in the
writing. It became clear that the Consent Form was tampered with
after the photocopy
was made. Mr Ntshani then conceded that an
application for relaxation of the building line should have been done
on a separate
form and not be simply added on the already signed
Consent Form which already contained the signature of Mr Lehman.
[49]
The Court a
quo
correctly rejected Mr Ntshani's
evidence dealing with the application for relaxation of the building
line and his version relating
to
the
granting of the consent
to
relaxation, which according
to
him appeared in the letter dated 12
December 2014. Mr Ntshani's evidence lacked credibility, he was not
objective in that he tried
to
protect
and favour the Appellant.
[50]
Having set out the evidence led on
behalf of the Appellant and the Respondent hereinabove, my assessment
and conclusion is that
the Court a
quo
correctly preferred and accepted the
version of the Respondent over that of the Appellant. The Court a
quo
was faced with two mutually
destructive versions and did carefully apply the principles set out
in the
Stellenbosch Farmers' Winery
case, supra.
This Court's powers to interfere on appeal with
the findings of fact of a trial Court is limited
[2]
.
The
trial Court had a better opportunity to observe the conduct and
demeanor of each witness during the trial.
In
the absence of demonstrable and material misdirection by the trial
Court, its findings of fact are presumed to be correct and
will only
be disregarded if the recorded evidence shows them to be clearly
wrong
[3]
.
In
S v Moyane and Others
2008 (1)
SACR 543
(SCA) at 548b it
was
held:
"Bearing
in mind the advantage that in trial Court
has
of seeing, hearing and appraising
a
witness, it is only in exceptional
cases
that
this Court will be entitled to interfere with
a
trial Court's evaluation of oral
testimony".
Whether the Appellant constructed the pigeon
loft in compliance with legislative and other legal requirements.
[51]
The construction of the pigeon loft has
to be in accordance with and in compliance with legislative and other
legal requirements
which include the Town Planning Scheme. Special
consent had to be applied for and granted by the Municipality.
Building plans and
site plans and the relaxation thereof need to be
approved by the Municipality.
It is the Respondent's case that the pigeon
loft has not been constructed in compliance with the legislative and
other legal requirements
in that the Appellant built the pigeon loft
on Erf 4460, in extent 116 square meters less than 1 meter from the
common boundary
line with the property of the Respondent; Furthermore
it is the Respondent's case that the building plans and site plans
were never
approved by the Municipality through the recommendation of
the building control officer. That the special consent applied for by
the Appellant from the Municipality had lapsed due to non
fulfilment of the conditions and requirements of the Mogalakwena
Local Municipality as set out in their letter dated 12 December 2014.
It is the Respondent's case that the Appellant never complied
with or
accepted the conditions as set out in the said letter.
[52]
The Appellant admitted that the pigeon
loft was built less than 1 meter from the common boundary line. This
is a clear contravention
of the legislative provisions including the
Town Planning Scheme. In particular the Appellant has contravened the
provisions of
section 7 of the National Building Regulations and
Building Standards Act 103 of 1977 (NBSA). A sanction for such
contravention
is to be found in section 21 of this Act where an order
for the demolition of the structure is prescribed. This aspect will
be
dealt with in detail later in this judgment.
[53]
Mr Lehman denied having consented to the
relaxation of a building line. He testified that the Appellant
approached him to sign·
a Consent Form which he signed.
According to him he signed the form indicating that he did not have
an objection to the pigeon
loft being constructed on Erf 4460. He
however did not know the extent of the pigeon loft that was to be
constructed nor that it
was to be constructed on the south-east side
of his house and that no site development plan was attached to the
document he signed.
He stated that he signed the Consent Form in the
spirit of good neighbourliness. He emphatically stated that the
portion relating
to the relaxation of the building line from 2m to 1m
was not contained in the Consent Form which he signed. It appears
therefore
that the relaxation clause on the Consent Form was inserted
after Mr Lehman had signed the form.
[54]
The Respondent had instituted
application proceedings for an interim order and the Appellant filed
his answering affidavit thereto.
Regarding the signing of the Consent
Form, Mr Lehman stated in the Respondent's interim application that:
"
21.
Attached
hereto as Annexure "F" is
a
copy of the Application for consent
use in terms of the Greater Potgietersrus Town Planning Scheme, 1997.
I note with great concern
what appears to be two distinct
handwritings and pens used in paragraph 3 of part 2.
22.
I, as the director of the Applicant, did
sign the application form as adjacent owner, which consent by myself
was conditional and
specifically subject thereto that the Respondent
does not build the pigeon loft, in
a
manner of speaking, right under my
nose. I attach hereto as Annexure
"G"
a
letter by myself addressed to the
Respondent, indicating the above conditional consent."
To
this the Appellant proffered the following answer:
"I
confirm the contents of this paragraph. I fail to see what the two
handwritings and different pens have to do with these
arguments. I
confirm that I completed the application and as is clear from the
annexure, it already happened during 2014. I cannot
recall the
specific circumstances under which it was done but I deny that there
is anything strange or notable regarding the aspects
mentioned by the
Applicant. Attached hereto is Annexure F is
a
copy of the Application for consent
use in terms of the Greater Potgietersrus Town Planning Scheme, 1997.
I note with great concern
what appears to be two distinct
handwritings and pens in paragraph 3 of part 2."
[55]
It is significant to note that the
Appellant does not deny the existence of the two distinct
handwritings and pens used in the form.
At the trial the Appellant
confirmed the truthfulness of the above statement in his answering
affidavit. He however stated that
after deposing to the answering
affidavit on 14 July 2016, he had a discussion with his architect who
reminded him that it was
him, the architect, who advised him to
insert the words "and the relaxation of building line from 2m to
1m" on the consent
form. He stated that he would call his
architect to confirm this version. Indeed, Mr Yeeman, the architect,
was called to testify.
Mr Yeeman confirmed that he advised the
Appellant to insert the relaxation clause. He however could not tell
when this was done,
whether it was before or after Mr Lehman signed
the consent form. Counsel for the Respondent submitted that on the
strength of
Mr Lehman's evidence. and on the preponderance of
probabilities the insertion of the relaxation of the building line
from 2m to
1m was done after Mr Lehman had signed the consent form
and he was never made aware of the insertion. I agree.
[56]
It is a further submission by
Respondent's Counsel that the probabilities are that the Appellant at
that stage committed fraud by
inserting in his own handwriting, a
supplementary sentence in the Consent Form, misleading and pretending
that such consent for
the relaxation was given by Mr Lehman. That in
the circumstance the Appellant has committed fraud. I am inclined to
agree with
Counsel in this regard. Accordingly, the Consent Form
which included the relaxation of the building line, was tainted with
fraud
and the purported approval of the deviation is of no
consequence. It must be noted that it is common cause that the
building (pigeon
loft) was never erected in terms of the original
building plans and / or the alleged approval thereof.
[57]
Apart from the fact that it now appears
clear that the Appellant has committed fraud, it also tainted his
credibility in this case
and his evidence could not be relied upon.
The aspect of fraud and how it impacts on the alleged approvals and
special consent
granted to the Appellant to erect the pigeon loft
will be dealt with below.
[58]
The principle is that fraud unravels all
and the Court will not allow any administrative process to be used by
a dishonest person
to carry out fraud
[4]
.
Fraud is conduct that vitiates every transaction known to the law. I
may emphasise that: "No Court in this land will allow
a person
to keep an advantage which he has obtained by fraud. No judgment of a
Court, no order of a Minister, can be allowed to
stand if it has been
obtained by fraud. Fraud unravels everything. The Court is careful
not to find fraud unless it is distinctly
pleaded and proved; but
once it is proved it vitiates judgments, contracts and all
transaction
[5]
.
In
casu
the Appellant's contention that
there was a decision by the Municipality recommending and approving
the variation plans, which could
include the relaxation of the
boundary line to 1 meter, is unacceptable, as such decision, if there
ever was one, was as a result
of fraud committed by the Appellant. I
accordingly make a finding that there was no decision made by the
Municipality to approve
the plans for the Appellant to construct the
pigeon loft.
[59]
To conclude the question whether the
Appellant built the pigeon loft in compliance with legislative and
other legal requirements,
I arrive at a finding that that was not the
case and for the following reasons:
59.1.
the Municipality officials did not refer
to the applicable bylaws when they purportedly approved the building
plans.
59.2.
the building plans were not signed off
by the building control officer. Mr Pieterse who signed off the
building plans was not the
building control officer and neither
authorised to sign off the plans on behalf of the Municipality.
59.3.
the conditions stated in the consent
letter dated 12 December 2014 were not adhered to. Therefore the
conditional consent granted
to the Appellant fell away 30 days after
12 December 2014.
59.4.
the building plans or even deviations
were never recommended by the building control officer or anyone
acting on behalf of the Municipality,
and there is no evidence of any
approval of the plans in terms of the applicable legislation, namely
NBSA.
59.5.
the site development plan which was
allegedly annexed to the Consent Form did not show that there was a
relaxation of the building
line in that it showed the building line
to be 2 meters from the boundary.
5.6. on his own
admission the Appellant built the pigeon loft less than 1 meter from
the boundary
line in contravention of the NBSA, bylaws and the Town
Planning Scheme.
Appellant's Submissions on Appeal
[60] For the first time
on appeal the Appellant raised an argument that the relief claimed by
the Respondent
was bad in law. This point of law was never raised at
the trial but raised during the application for leave to appeal and
before
us in this appeal.
As a general rule, a question of law may be
advanced for the first time on appeal, but only if its consideration
involves no unfairness
to the party against whom it is directed. It
is also a general requirement for the raising of a new point on
appeal that the point
be covered by the pleadings
[6]
.
[61] The point raised
by the Appellant on appeal was to the effect that the relief sought
was bad in law
and that the final order granted was legally
untenable. It was argued on behalf of the Appellant that the Court a
quo
granted a remedy of a consequential nature without
granting the primary relief. It was argued that the Court a
quo
should have first reviewed and set aside the Municipal approval
of the plans before it could grant an order for demolition of the
pigeon loft.
[62]
The Appellant avers that the order
granted in favour of the Respondent in prayer 1 thereof that the
Appellant be directed to demolish
the pigeon lofts, is incompetent
because the Respondent did not seek an order reviewing and setting
aside the decision to approve
the building plans, and because of that
the order to demolish could not be granted. The Appellant relies
heavily for this proposition
on the cases of
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA)
and
Serengenti
Rise Industries (Pty) Ltd and Another v Aboobaker NO and Others
2017
(6) SA 581
(SCA).
[63]
The abovementioned cases are not
applicable in the present case. Neither of the
Oudekraal
judgment or the
Serengenti
judgment dealt with a situation
where the decision of Municipality was vitiated by fraud as in the
present case where the relaxation
of the building line, which was the
basis for the approval of the variation plans was brought about by
fraud on the part of the
Appellant. Where fraud is involved, as in
the present case, every action taken by the Appellant and the
Municipality after the
Consent Form was handed to the Municipality is
void. Even if it be accepted that the plans were properly approved,
it is common
cause that the building was not built in terms of the
variation plans in that it was erected less than 1 meter from the
boundary
line.
[64]
It should be borne in mind that in the
present case a finding is made that there was no approval of the
plans, the relaxation of
the boundary line and the variations or
deviations by the Municipality. Consequently there was no decision of
the Municipality
to be subjected to review proceedings. The pigeon
loft was simply erected illegally hence the remedy sought against the
Appellant
is that of demolition of the structure. There was no need
for review proceedings against the Municipality in the present case.
The clear facts of this case are that the Appellant has erected the
property less than 1 meter from the boundary line, which building
is
in contravention of the bylaws which specifically prohibit a
structure to be erected within 3 meters from a boundary line.
[65]
In the premises, the point of law raised
by the Appellant albeit belatedly has no merit and is dismissed. In
any event this Court
does not condone the late raising of this point
of law by the Appellant. The point should have been raised at the
trial and be
covered in the pleadings. In my view the Respondent is
prejudiced by the late raising of this point of law on appeal.
In the
Riddles
matter referred to above
Murphy J held as follows:
"My
difficulty with the Respondent only now taking these points, which
may or
may
not
be meritorious, is that they appear not to have been raised before
or
adjudicated
by the Magistrate; and hence it is doubtful whether the Appellant has
had
a
proper
opportunity to deal with them".
The
Court refused to allow the belated point of law in the
Riddles
matters.
Does the Court have the powers to order a
demolition?
[66]
Among the orders granted by the Court a
quo is the order directing the Appellant to demolish the pigeon lofts
where they currently
stand. The basis of the order is that the lots
are built in contravention of the legislative provisions and / or
Town Planning
Scheme. The only statutory power of demolition is to be
found in s21 of the National Building Regulations and Building
Standards
Act 103 of 1977 ("NBSA") which provides:
" Order in respect of erection and
demolition of buildings.
Notwithstanding
anything to the contrary contained in any law relating to
Magistrates' Courts,
a
Magistrate
shall have jurisdiction, on the application of local authority or the
Minister, to make an order prohibiting any person
from commencing or
proceeding with the erection of any building or authorizing such
local authority to demolish such building if
such Magistrate
is
satisfied that such erection is
contrary to or does not comply with the provisions of the Act or any
approval or authorization granted
thereunder"
[67]
In
Lester
v Ndlambe Municipality and Another
[7]
it
was decided that a Court hearing an
application in terms of s21 of the NBSA had no latitude not to order
the complete demolition
of a building once the jurisdictional fact,
namely that the building was erected contrary to the NBSA, was
established. It was
held that the law could not and did not
countenance an ongoing illegality which was also a criminal offence.
To do so would be
to subvert the doctrine of legality and to
undermine the rule of law.
[68]
It is clear that only a local authority
or the Minister has
locus standi
to
bring an application in terms of s21 before a Magistrate. The
statutory right to seek the remedies provided for in s21 is clearly
intended to enable local authorities and the Minister to ensure
compliance with the provisions of the NBSA in relation to town
planning schemes. Consequently an individual such as the Respondent
in
casu
would
not have
locus standi
to
approach the Court in terms of s21 of the NBSA.
[69]
That, however, could hardly mean that
the Respondent in the present case was without a remedy. At common
law the power to order
the demolition of a building ordinarily finds
application in the case of an encroachment by a building onto a
neighbour's property.
In
LAWSA Vol 27 (2 ed) para 158
the following is set out"
"When
a
landowner erects
a
structure on his or her land he or
she must take care that he or she does not encroach on his or her
neighbour's land. This rule
of neighbour law is not only applicable
in
cases
where
the building itself
or its foundations encroach on neighbouring
land, but
also
where
roofs, balconies or other projections encroach on the air space above
a
neigbour's.
"In the case of encroaching structures the owner of the land
which is encroached upon can approach the Court for
an order
compelling his or her neighbour to remove the encroachment……."
[70]
In
BSB
International Link CC v Readam South Africa (Pty) Ltd and Another
[8]
a
demolition order albeit partial was
granted at the instance of the Applicant. The basis of such an order
was the non-compliance
with the town planning scheme by the
respondent in that case.
Ponnan JA at para [26] had this to say:
"The
high court appeared not to appreciate that it
was
possessed of the kind of discretion
alluded to by Graham JP. What tips the scales against BSB
is
that it
was
warned that it was acting illegally
and in spite of such warning, it deliberately persisted. If anything,
it engaged in obfuscatory
behaviour to delay finalisation of this
litigation whilst pressing ahead with its illegal conduct. Such
conduct can hardly be countenanced
by
a
court. To do
so
will make a mockery of ordered town
planning and by extension the law. The order granted by the court
a
quo which directed that the property
be demolished to the extent necessary to ensure compliance with the
scheme, can accordingly
not be faulted".
[71]
In
casu,
as an adjoining landowner whose
rights were adversely affected by the unlawful construction of the
pigeon loft building, the Respondent
approached the Court a
quo
for a common law remedy as it was
entitled to do so. Accordingly, the demolition order granted by the
Court a
quo
is
appropriate and cannot be faulted.
[72]
The last issue to be considered in this
appeal is whether the pigeon loft and the keeping of the pigeons
create a persistent and
continued nuisance for the Respondent. The
Respondent's version has been accepted by the Court a
quo,
and correctly so. Even some of the
witnesses who testified for the Appellant made some concessions
regarding nuisance created by
the location of the pigeon loft as well
as the keeping of such a large number of pigeons (400 to 450 in
number) on Erf 4460.
The Legal Principles: Nuisance
[73]
It remains to apply the law to the facts
as I consider them to have been established. In the present case the
question is whether
the conduct of the person causing the alleged
nuisance (Appellant) is, in the delictual sense, wrongful in relation
to the party
complaining of the nuisance (Respondent). In a case of
nuisance, the neighbour complains that his right to enjoy the
undisturbed
use of his property with reasonable comfort and
convenience is impaired.
[74]
In
Regal
v African Superstate (Pty) Ltd
[9]
the Court had occasion to consider
the position of the law in South Africa in regard to matters which in
England are dealt with
according to "the law of nuisance".
The principle in our law is this: although an owner may normally do
as he pleases
on his own land, his neighbour has a right to the
enjoyment of his own land. If one of neighbouring owners uses his
land in such
a way that material interference with the other's rights
of enjoyment results, the latter is entitled to relief.
[75]
In
De
Charmoy v Day Star Hatchery (Pty) Ltd
[10]
Miller J said:
"the "interference"
with the neighbour's right of enjoyment must be material or
substantial, for it
goes without saying that, especially in contemporary conditions, some
inconvenience or annoyance emanating from
the use of neighbouring
property must needs be endured".
Wrongfulness
must be determined with regard to the particular circumstances of the
case. The question is whether the harm-causing
conduct, assessed in
accordance with public policy and the legal convictions of the
community, constitutionally understood, is
or is not acceptable; in
short, whether it is objectively reasonable to impose liability
[11]
.
[76]
The harm-causing conduct will be an
actionable nuisance if it is unreasonable. All the factors bearing on
this value judgment must
be balanced, including those conventionally
mentioned in the sphere of nuisance - the locality of the properties,
the suitability
of the defendant's use of its property; the extent
and duration of the interference and the times at which it occurs.
In
PGB
Boerdery Beleggings (Edms) Bpk & Another v Somerville 62 (Edms)
Bpk & Another
[12]
the Court
approved the propositions that the interference will be unreasonable
when it ceases to be a "to-be-expected-in
the-circumstances" interference and is of a type which does not
have to be tolerated under the principle of "give and
take, and
live and let live"; that this involves an objective evaluation
of the circumstances and milieu in which the alleged
nuisance has
occurred; and that this is achieved, in essence, by comparing the
gravity of the harm caused with the utility of the
conduct which has
caused harm.
See
also JRL Milton in Joubert: The
Law of South Africa Vol 19 at para 189 and Trustees, Two Oceans
Aquarium Trust v Kantey & Templer
(Pty) Ltd 2006 (3) SA 138 (SCA)
para 11-12.
[77]
In the present case we have to do with a
private nuisance; that is an act or omission or state of affairs that
materially inconveniences
another in the ordinary comfortable use or
enjoyment of the premises. A private nuisance occurs when a neighbour
interferes with
an owner's use and enjoyment of his land. The owner's
interest is violated mostly by the invasion of the land or premises
by foul
odour, smoke, gas fumes, noise or similar substances. In
excessive quantities these substances, impinging upon the sensory
organs,
induce actual physical discomfort and distress in human
occupants of land
[13]
.
[78]
In his testimony, Mr Lehman complained
about constant cooing sound of the pigeons and smell and the wind
blowing over the loft to
the north-westerly direction. He stated that
his entertainment area is at the back of his house almost opposite
the loft and that
the constant cooing and smell cause him an
embarrassment whenever he has guests around to entertain. Pigeons
were seen sitting
on the ridge of the roof of the loft. He was
constantly aware of the pigeons. The view to the mountain was spoiled
with the unsightly
structure of the loft. This evidence was not
disputed.
Mrs Lehman spends most time in her house. She
confirmed the cooing sound, smell, the pigeon droppings, the feathers
and dust that
she had to clean in the house. Pigeons were on her side
of the boundary line and even entered her house and messed her
carpets.
Her ability to entertain guest was compromised. The property
valuator, Mr Marx visited the Lehmans on three occasions. He
confirmed
hearing the cooing sound whilst in the entertainment area.
According to him, the sound was non-stopping, very irritating and
annoying.
He further recognised a distinct smell blowing over which
reminded him of his childhood (on the farm where as children, had
pigeons).
Mr Marx concluded that the Respondent's property value was
negatively compromised.
[79]
The factors which have been regarded as
material in determining whether the disturbance is of a degree which
renders it actionable,
include (where the disturbance consists in
noise) the type of noise, the degree of its persistence, the locality
involved and the
times when the noise is heard. The test, moreover,
is an objective one in the sense that not the individual reaction of
a delicate
or highly sensitive person who truthfully complains that
he finds the noise to be intolerable is to be decisive, but the
reaction
of "the reasonable man" - one who according to
ordinary standard of comfort and convenience, and without any
peculiar
sensitivity to the particular noise, would find it, if not
quite intolerable, a serious impediment to the ordinary and
reasonable
enjoyment of his property.
See
De Channey v Day Star·Hatchery (Pty) Ltd
supra at
1920-F.
[80]
In the light of what I have stated
above, I am of the view that the evidence justifies the Respondent's
assertion that the erection
of the pigeon loft and the keeping of
pigeons therein constitute a serious and substantial invasion of the
Respondent's rights.
The Court a
quo'
s
finding in this regard cannot be
faulted.
Conclusion
[81]
The
Court a
quo
was
correct in making a finding that the Appellant did not erect the
pigeon loft in compliance with the legislative and other legal
requirements and therefore ordered demolition of the structure.
Furthermore the Court a
quo's
finding
that the pigeon loft and the keeping of the pigeon creates a
persistent and continued nuisance for the Respondent cannot
be
faulted.
[82]
The
appeal is accordingly dismissed with costs, such costs to include the
costs consequent upon the employment of two Counsel.
E
M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
I agree
M PHATUDI
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
I agree
T C TSHIDADA
ACTING JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 13 March 2020
Judgment
delivered on
: 26 March 2020
For
the Appellant
: Adv G J Diamond
Instructed
: E J Hounibal Attorneys
c/o DDKK Attorneys
For the
Respondent
: Adv. T Strydom SC
Adv. J F Winnertz
Instructed
: Bornman Snyman & Barnard Attorneys
c/o Niland & Pretoruis Inc
[1]
See Stellenbosch Farmers' Winery Group (Pty)Ltd and Another v Martel
Et Cie and Other s 2003 (1) SA 11 (SCA).
[2]
See S v Francis 1991(1) SACR 198 (A) at 204d, RV Dhlumayo and
Another 1948 (2) SA 677 (A).
[3]
S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e-f.
[4]
See Loomcraft Fabrics CC v Nedbank Ltd & Another 1996 (1) All SA
51 (A)
[5]
See First Bank ltd t/a Rand Merchant Bank & Another v Master of
the High Court, Cape Town & Others [2013) ZAWCHC 173
(11
November 2013) at para 20-27; Ensor FrankiPipeline (Pty) Ltd &
Another v Mopani District Municipality & Others [2014)
ZASCA 21
(28 March 2014) at para 25.
[6]
See Riddles v Standard Bank of South Africa Ltd 2009 (3) SA 463 (T)
[7]
2015 (6) SA 283
(SCA)
[2014] 1 All SA 402
[8]
2016 (4) SA 83 (SCA)
[9]
1963 (1) SA 102 (A)
[10]
1967 (4) SA 188
(D) at 191H - 1928
[11]
See Country Cloud Trading CC v MEC, Department of Infrastructure
Development
(2014) ZASCA 28
;
2015 (1) SA 1
(CC) paras 20-21; Za v
Smith & Another
[2015] ZASCA 75
;
2015 (4) SA 57
4 (SCA) paras
15-16
[12]
2008 (2) SA 428 (SCA)
[13]
LAWSA Vol 9 page 122 para 169.