About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2019
>>
[2019] ZAWCHC 66
|
|
Red Ant Relocation and Eviction Services and Others v Crouse and Others (14651/2017) [2019] ZAWCHC 66 (29 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:
14651/2017
Before: The Hon. Mr Justice Binns-Ward
Hearing: 27 May 2019
Judgment:
29 May 2019
In
the matter between:
RED
ANT RELOCATION AND EVICTION
SERVICES
(PTY)
LTD
First
Applicant
ABRAHAM
JOHANNES BOSCH
Second Applicant
LIZET
MERLE
BOSCH
Third Applicant
ABIGAIL
CHRISTY
LOUBSER
Fourth Applicant
and
BENITA
CROUSE
First Respondent
ANDRÉ
BOSCH
Second
Respondent
HARBOUR
ISLAND HOME OWNERS’ ASSOCIATION
Third Respondent
THE
CITY OF CAPE
TOWN
Fourth
Respondent
JUDGMENT
BINNS-WARD J:
[1]
The applicants sought the following relief
in their notice of motion:
…
an order in the following
terms:
1.
That the first and/or
second respondent and/or any person occupying with them and/or
visiting them be interdicted from using the
outside braai, wooden
deck and pergola on the property situated at no. [...] Road, Harbour
Island, Gordon’s Bay.
2.
That it be declared
that the outside braai, wooden deck and pergola on no. [...] Road,
Harbour Island, Gordon’s Bay, are not
compliant with the
approved plans for the property.
3.
That the first and/or
second respondents as owner(s), alternatively bona fide possessors of
the property situated at no. [...] Road,
Harbour Island, Gordon’s
Bay, be ordered to demolish on the said property within 14 days:-
a.
the outside braai (next
to the property situated at 3 [...] Road);
b.
the wooden deck; and
c.
the pergola.
And, should the first and/or second respondents fail to
adhere to the above within 14 days, that the sheriff or his duly
appointed
agent or subcontractor be authorised to demolish the
structures.
4.
That the first and/or
second respondents and/or anyone occupying with them and/or visiting
them be interdicted from making any remarks
towards occupiers at 3
[...] Road, Harbour Island, Gordon’s Bay.
5.
That the first and/or
second respondents and/or anyone occupying with them and/or visiting
them be interdicted from entering the
property situated at 3 [...]
Road, Harbour Island, Gordon’s Bay.
6.
That the first and/or
second respondents and/or anyone occupying with them and/or visiting
them be interdicted from intimidating
and/or interfering with the
builder and/or building works at 3 [...] Road, Harbour Island,
Gordon’s Bay.
7.
That, in respect of the
dividing wall between the properties situated at no. 1 and no. 3
[...] Road, Harbour Island, Gordon’s
Bay –
a.
the first applicant be
authorised to raise the dividing wall between the properties to 1,80
metres.
b.
That the first and
second respondents jointly and severally contribute to 50% of the
costs incurred by the raising of the wall to
be payable within 30
days from such costs submitted (sic).
8.
Costs on the
attorney and client scale against the first and second respondents
jointly and severally, the other to be absolved.
9.
Costs against the third
respondent only in the event that such respondent opposes the
application. In such event that such
respondent opposes the
application. In such event, costs are to be payable jointly and
severally with the first and/or second
respondents.
10.
Further and/or
alternative relief.
[2]
The first applicant company is the
registered owner of the property at 3 [...] Road, Harbour
Island, Gordon’s Bay.
The second to fourth applicants are
all members of the family that I infer enjoys the use of the first
applicant’s property
as its holiday home. Harbour Island
is a communal housing development that is administered by the third
respondent homeowners’
association, to which all the property
owners in the development are required to belong. The first
respondent is the owner
of the property at [...] Road. The
first respondent’s property is immediately adjacent to that of
the first applicant.
The two properties are separated from each
other by a boundary wall. The homeowners’ association’s
development
rules prescribe that the wall may not exceed 1,2 metres
in height. And that, indeed, appears to be the height of the
existing
boundary wall.
[3]
The relief sought in terms of paragraphs
1-3 of the notice of motion relates to issues arising from the
erection on the first respondent’s
property of certain
structures for which there were no approved building plans as
required in terms of the National Building Regulations
and Building
Standards Act 103 of 1977 (‘the Building Act’), and
which, to a greater or lesser extent, also infringe
the lateral
building line restrictions imposed to regulate the proximity of
building development between the properties.
It was by virtue
of the implication of the Building Act that the City of Cape Town,
which is the relevant local authority, was
joined as a party to the
proceedings at the insistence of the first respondent, and against
the (to my mind, justified) contention
by the applicants in
interlocutory proceedings before Thulare AJ that it was not a
necessary party.
[4]
Neither the City, nor the homeowners’
association played an active part in the proceedings. Both
abided the judgment
of the court. The homeowners’
association, however, filed an affidavit explaining its inability, by
virtue of the constraints
imposed by the development rules, to accede
to the first applicant’s objective of raising the height of the
dividing wall
between the properties to 1,8 metres in height, as
prayed in terms of paragraph 7 of the notice of motion.
[5]
The relief sought in paragraphs 1 – 3
of the notice of motion became moot by the time of the hearing
because the first respondent
caused the offending structures to be
demolished a fortnight or so before the matter was argued. The
first respondent had,
however, offered to settle the litigation a
year earlier on the basis that she would demolish the structures in
issue and apply
for permission to erect replacements that would be
amenable to approval by the local authority in terms of the Building
Act and
also compliant with the homeowners’ association’s
building rules. The offer of settlement had been refused by
the
applicants, who indicated that they were willing to settle only if
the first and second respondents conceded all of the substantive
relief sought in the notice of motion and paid the applicants’
costs of suit.
[6]
The relief sought in terms of paragraphs 4
and 5 of the notice of motion was personal to the second to fourth
applicants.
It was based on their allegations about the conduct
towards them of the first and second respondents and unidentified
visitors
to the first respondent’s property when the second to
fourth applicants were in residence at the first applicant’s
property. The allegations were denied and - as the applicants’
counsel advisedly conceded when the matter was argued
- the second to
fourth applicants consequently could not hope to obtain the relief
sought in terms of those paragraphs without
a reference of the
disputed facts for determination on oral evidence. Whether they
would have succeeded in obtaining a ruling
referring the issues to
oral evidence had they sought one is doubtful having regard to the
eminent foreseeability of factual dispute
arising in matters of the
character in issue; cf.
Standard Bank of
SA Ltd v Neugarten and Others
1987 (3)
SA 695
(W) at 699A-B.
[7]
The factual foundation for the relief
sought in terms of paragraph 6 of the notice of motion was also the
subject of dispute.
For the same reasons as those described in
respect of the relief sought in terms of paragraphs 4 and 5 of the
notice of motion,
the first applicant could not obtain the relief
sought in terms of paragraph 6 on the papers; oral evidence would be
required.
[8]
It was not evident to me how the first
applicant could on any approach hope to succeed in obtaining the
relief claimed in terms
of paragraph 7 of the notice of motion.
The maximum height of boundary walls between properties in the
Harbour Island development
had been determined at 1.2 metres in terms
of the applicable development rules. As between the owners of
property in the
development, the development rules have the same
effect as the provisions of the constitution of an unincorporated
association
do as between the association’s members.
Their character is contractual. The applicant should have
appreciated
that the court has no jurisdiction to make a new contract
for the parties by altering the terms of their subsisting
arrangement.
In the circumstances the question of who should be
liable to contribute to paying for the heightening of the wall would
not be
reached. But it is impossible to conceive why the second
respondent, who had no demonstrated proprietary interest in either
of
the properties, should have been expected do so.
[9]
Appreciating that the applicants could not
succeed on paper on the relief sought in terms of paragraphs 4 to 7
of the notice of
motion, and acknowledging that the only matter that
fell to be determined in respect of that sought in paragraphs 1 to 3
of the
notice of motion was costs, the applicants’ counsel
sought to characterise the former as merely ‘ancillary’
to
the latter. Implicit in the argument advanced by Mr
Wijnbeek
in this regard was the contention that if the applicants had been
entitled to obtain the relief that the first respondent had
effectively conceded by demolishing the offending structures, they
should consequently be regarded as having achieved substantial
success and awarded their costs of suit accordingly.
[10]
The first respondent’s counsel
resisted the contention on costs advanced on the applicants’
behalf. He made two
principal submissions in this regard.
[11]
The first was that the applicants had by
the date of the hearing stood to obtain no more substantive relief
than that which had
been offered to them by the first respondent a
year before. He contended that in the circumstances the only reason
the matter had
had to come to court was because the applicants had
persisted until the hearing in demanding the remainder of the relief
sought
in the notice of motion, which they should have realised they
could not hope to obtain on paper, or at all in some respects.
Mr
de Waal
SC
argued that that the relief sought in terms of paragraphs 4 to 7 of
the notice of motion that the applicants chose not
to persist in
asking for at the hearing was in point of fact in no way ‘ancillary’
to that sought in terms of paragraphs
1 to 3.
[12]
The second was that the applicants should
in any event have sought adjudication of their disputes with the
first respondent under
the auspices of the Community Schemes Ombud
Service Act 9 of 2011 (‘the Ombud Act’) instead of
resorting to the costlier
option of High Court litigation. It
bears noting in that regard that a homeowners’ association is a
community scheme
as defined in s 1 of the Ombud Act. Mr
de
Waal
sought support for the argument in
the judgment I handed down just last week in
Coral
Island Body Corporate
v
Hoge
[2019] ZAWCHC 58.
[13]
I think that there is force in the first of
the aforementioned contentions by Mr
de
Waal
. The first applicant has
indeed obtained no more by way of substantive relief than it was
offered a year ago. The applicants
have not persisted with the
remainder of the substantive relief sought in the notice of motion,
and it is clear that the first
applicant could not have succeeded
with that sought in terms of paragraph 7 thereof.
[14]
It therefore seems to me that the first
applicant would not have been entitled to its costs beyond the expiry
of a reasonable
spatium deliberandi
after the date of the first respondent’s offer of settlement.
Had the matter proceeded to a hearing on the substantive
relief it
would probably have had to pay the first respondent’s costs of
suit in regard to the application for relief in
terms of paragraph 7
of the notice of motion. As the second, third and fourth
applicants could not have succeeded in obtaining
relief against the
first respondent on the papers, they faced the prospect of the
dismissal of their application with a liability
to pay the first
respondent’s costs had the matter proceeded to a hearing on the
substantive relief that they had sought.
Had the application
fallen to be determined on the merits, the incidence of liability for
costs would in all likelihood have gone
both ways.
[15]
It is correct that the second to fourth
applicants’ nuisance complaints arising from the alleged
effects of smoke inhalation
associated with the use of the unlawfully
erected braai and chimney structure could in a sense be said to be
‘ancillary’
to the complaint about the very existence of
the structure. But there does not seem to me to be sufficient
connection between
the existence of the offending structures on the
first respondent’s property and the subject matter of the
relief sought
by the second, third and fourth applicants in terms of
paragraphs 4 and 5 of the notice of motion, or that sought by the
first
applicant in terms of paragraph 6 thereof to justify its
characterisation as ‘ancillary’ to that sought in
paragraphs
1 to 3.
[16]
As to the second of the aforementioned
principal contentions by Mr
de Waal
,
only matters that qualify as ‘disputes’ within the
meaning of that word as specially defined in the Ombud Act are
amenable to adjudication by the Community Schemes Ombud Service; cf.
Trustees for the time being of the
Avenues Body Corporate v Shmaryahu and Another
[2018] ZAWCHC 54
;
2018 (4) SA 566
(WCC) at para. 16. The word
‘
dispute
’
is defined in s 1 of the Act to mean ‘
a
dispute in regard to the administration of a community scheme between
persons who have a material interest in that scheme, of
which one of
the parties is the association, occupier or owner, acting
individually or jointly
’.
[17]
I am not persuaded that the relief sought
against the first respondent arising out of non-compliance with the
Building Act qualifies
as a matter concerning a dispute ‘
in
regard to the administration of a community scheme
’.
The consideration and determination by local authorities of building
plan applications involves the administration
of the Building Act and
the enforcement of land use scheme regulations, which are matters of
generally applicable public law administration.
Furthermore, it
was not clear on the papers whether the lateral building line
infringement involved a breach of the homeowners’
association
development rules, which would engage the administration of the
community scheme, or a breach of the applicable land
use scheme under
the
Spatial Planning and Land Use Management Act 16 of 2013
, which
would not.
[18]
In circumstances in which it is not clear
that all of the relief sought by the applicants arose in the context
of a dispute as defined
in the Ombud Act, I do not think that they
fell to be penalised for not proceeding for relief under the auspices
of that Act.
[19]
Having regard to all the aforementioned
considerations, and noting that the applicants chose to act together
in compositely seeking
quite discrete heads of relief in proceedings
that did not altogether justify consolidation for convenience of
hearing, and further
that they acted jointly in rejecting the first
respondent’s offer to accede to all of the substantive relief
to which the
first respondent was entitled, I have concluded that
justice would be served if no order were made as to costs, with the
result
that each party will bear its own costs. I can only
imagine that in directing that the costs of the aforementioned
joinder
application stand over, rather than awarding them to the
successful party in the interlocutory proceedings, Thulare AJ
intended
to signify that they should be costs in the cause. And
so they will be.
[20]
An order in the following terms will issue:
1.
No
order is made in respect of the relief sought in terms of paragraphs
1 to 3 of the notice of motion by reason of it having been
rendered
moot upon the demolition of the outside braai, wooden deck and
pergola therein referred to.
2.
It
is recorded that the applicants did not persist at the hearing in
seeking the relief set forth in paragraphs 4 to 7 of the notice
of
motion.
3.
There
shall be no order as to costs.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant’s counsel:
D.H. Wijnbeek
Applicants’ attorneys:
Allen & Associates
Braamfontein
Bailey Haynes Inc.
Cape Town
First Respondent’s counsel:
H.J. De Waal SC
First Respondent’s attorneys:
BDP Attorneys
Tygervalley
MacRobert Attorneys
Gardens, Cape Town