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[2018] ZAGPJHC 669
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Waterfall Hills Residents Association NPC v Jordaan and Another (A3140/2018) [2018] ZAGPJHC 669 (12 November 2018)
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REPUBLIC OF
SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEAL
CASE NUMBER: A3140/2018
In
the matter between:
WATERFALL HILLS RESIDENTS
ASSOCIATION NPC
Appellant
And
D J JORDAAN
First Respondent
L HALL
Second Respondent
JUDGMENT
Windell J
INTRODUCTION
[1]
This is an appeal and cross appeal
in
terms of section 57(1) of the Community Schemes Ombud Service Act 9
of 2011 (“the Act”)
against
an award granted by the adjudicator.
Section
57(1) vests an applicant or any affected person who is dissatisfied
by an adjudicator’s order, with a right to appeal
to the High
Court, but only on a question of law.
[2]
The award was made against the
appellant,
the
Waterfall
Hills Residents Association NPC (“the Association”),
in favour of
the first respondent. It was ordered:
[1]
[2.1]That the koi pond
erected at Unit [...] be removed within 14 days of the order.
[2.2] That the flower
bed adjacent Unit [...] be restored to the original state with
indigenous plants within 14 days of the order.
[2.3] No order as to
costs.
[3]
It was conceded during the hearing of the appeal that the adjudicator
erred in granting relief against the Association, as no
relief was
sought by the first respondent against it during the adjudication
hearing: Relief was sought against the second respondent.
The appeal
should therefore succeed on that basis alone.
[4]
In the cross appeal the first respondent seeks an order against the
second respondent on the same terms as the award granted
against the
Association.
[5]
The cross appeal was noted late and the first respondent seeks
condonation. The application for condonation is opposed by the
second
respondent.
CONDONATION
[6]
The adjudicator granted the award against the Association on 10
November 2017.
In accordance with section
57 of the Act, the parties affected by the ruling had 30 (thirty)
days to lodge an appeal. The Association
lodged its appeal against
the adjudicator’s decision on 07 December 2017. The cross
appeal by the first respondent was only
noted five months later, on
11 May 2018.
[7] The first respondent filed a
substantive application for condonation setting out the events that
led to the late filing of the
cross-appeal. It was submitted that the
attorney on record for the first respondent only received the full
record of the adjudication
hearing on 1 March 2018, which consisted
of eight volumes. Legal representatives were excluded from the
adjudication hearing,
and it was contended that the situation was
therefore significantly different from an appeal where legal
representatives were indeed
in attendance in the forum
a quo
,
and thus had a good working knowledge of the pleadings, trial bundle,
evidence, and the inter-relationship between them. Moreover,
inasmuch
the Act only permits an appeal on points of law, this was not a
matter where the attorney could adequately discharge his
obligations
to the first respondent by relying solely on his recollection of the
evidence, including the cross-examination, and
the hearing generally.
No hearing date for the appeal had been allocated when the cross
appeal was noted, and it was submitted
that there was no prejudice to
any of the parties in granting condonation.
[8] The second respondent opposed the
application for condonation and asserted that the first respondent
failed to say anything
about the prospects of success on appeal and
except for a single, bald assertion that no prejudice will be
suffered by the second
respondent, the entirety of the remainder of
the affidavit was devoted to an explanation for the delay in bringing
the cross-appeal.
There was however no explanation for the delay from
1 March 2018 (when the appeal record was received) to 11 May 2018
when the
cross appeal was eventually noted. It is contended
that the explanation offered by the first respondent was therefore
neither
complete nor sufficient, and that, coupled with the fact that
nothing was said of the merits of his case and only lip service is
paid to potential prejudice, the first respondent ought to bear the
responsibility for his non-compliance with the Rules.
[9]
Counsel for the second respondent further submitted that the second
respondent is prejudiced as he finds himself in a position
where the
ruling was not granted against him and he was reasonably poised to
feel comfortable that the dispute had found a resolution
of sorts.
But then the first respondent belatedly joined the second respondent
to the proceedings, forcing him to incur costs by
becoming active in
litigation he was up to then, just observing. For these reasons, the
second respondent seeks a dismissal of
the condonation application
with costs.
[10]
The first respondent had 10 days
after the Association noted its appeal to file its cross appeal. It
only noted the cross appeal
some five months later. The second
respondent failed to explain what transpired between eventually
receiving the record in March
2017 and the noting of the cross appeal
in May 2017, and he also failed to expressly deal with the prospects
of success on appeal.
[11] The
explanation for the lateness and the prospects of success are however
not the only two factors that needs to be considered
in a condonation
application.
In
Ferris
and Another v Firstrand Bank Ltd
,
[2]
the Constitutional Court held, with reference to
Bertie
van Zyl (Pty) Ltd and Another v Minister for Safety and Security and
Others,
[3]
that the applicant’s explanation for the late filing of the
application was less than satisfactory and there were no prospects
of
success. The court held that the test for condonation is whether it
is in the interest of justice to grant it.
[12]
It is trite that a court has a wide discretion in deciding
whether to condone non-compliance with the Rules. The main factor in
consideration of the application for condonation in this matter is
the fact that the
adjudicator had already made a
factual finding, but because the adjudicator
erroneously made
an order against the Association and excluded the second respondent
,
the order was unenforceable. The purpose of the cross –appeal
is to get an order, on the same terms as the adjudicator’s
original order, against the party against whom relief was originally
sought, namely the second respondent.
Were the first
respondent not allowed to proceed with the cross appeal, the first
respondent will be without a remedy. His prejudice
is substantial and
irreparable were the cross appeal not to be entertained.
[13]
The second respondent’s disappointed expectation is not a
cognisable ground of prejudice. I agree with counsel for the
first
respondent that the second respondent would in any event have to
incur costs in defending the cross appeal if he so chooses,
but such
costs would be attendant upon the cross appeal even if it were noted
timeously.
The finalization of the appeal was not delayed by
the late noting of the cross appeal as notice of the set down was
served on 7
June 2018; well after the cross appeal had been noted.
The late filing of the cross appeal is condoned.
BACK
GROUND FACTS
[14]
For ease of reference the parties in the cross appeal will be
referred to as “Jordaan” and “Hall”.
[15]
Jordaan and Hall both reside at the Waterfall Hills Mature Lifestyle
centre and are neighbours. They are members of the Association
and
bound to its rules. On 13 February 2017 Jordaan lodged an application
for dispute resolution in terms of section 38 (3) of
the Act. In his
application Jordaan complained about the installation of a koi pond
in a flower bed in front of Hall’s house
that was attracting
frogs that made such a noise that Jordaan and his wife were unable to
sleep at night which was causing them
health problems. Peace and
quiet is a key factor regarding life on the estate and the frogs were
creating a disturbance. Jordaan
further contended that Hall was in
any event not allowed to install the koi pond as it was against the
landscaping rules. Jordaan
therefore sought an order instructing Hall
to, at his own cost, remove the koi pond and restore the flower bed.
No relief was sought
against the Association.
[16] Pursuant to the processes
contemplated in Chapter 3 of the Act, and following the failure of a
conciliation process as contemplated
by section 47 of the Act, the
dispute between the parties was referred to an adjudicator, Mr. P
Samuels. The adjudicator
duly convened a hearing on 10 October
2017 in order to hear evidence on the disputes between the parties.
At the adjudication
hearing the Association was represented by
authorized representatives, and Jordaan and Hall represented
themselves. None
of the parties were legally represented at the
hearing. Following the conclusion of the adjudication hearing, the
award was handed
down on 10 November 2017.
EVALUATION
[17]
The adjudicator heard evidence from Hall, Jordaan and Mr Kilbourn, a
board member of the Association, and made two findings.
He found
that: (1) The koi pond was not a small water feature as contemplated
in clause 5.4 of the Landscaping Rules and; (2) The
koi pond created
a nuisance as envisaged in rule 8.1 of the Conduct Rules. Counsel for
Jordaan submitted that both these findings
were factual findings and
were therefore not appealable in terms of the Act. The second
respondent argued that both findings involved
points of law and were
appealable. I agree with the second respondent. Although factual
findings were made, which this court is
not entitled to interfere
with, the conclusion the adjudicator arrived at involved the
interpretation of documents (the Landscaping
Rules and the Conduct
Rules) which involved points of law.
The
water feature
[18]
Clause 5.4 of the Landscaping Rules states as follows:
“
Small
water features are permitted and can be positioned in any recess of a
unit or on patios. The water features must be an earth
colour, the
same or similar to the recommended colours for pots. The electrical
cord for the water feature pump must be concealed.
The installation
of water features will be permitted only after approval by Estate
Management.”
[19]
The adjudicator interpreted clause 5.4 of the Landscaping Rules and
found that it did not provide for the installation of a
koi pond. In
addition, he found that the pond was, in any event, not approved by
the Association as permission was not granted
in writing at the time
it was sought, but was confirmed
ex
post facto
.
[20]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality,
[4]
Wallis JA set out the proper approach to be adopted when interpreting
documents. He remarked as follows:
[5]
“
[W]hatever
the nature of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears; the
apparent purpose to which it is directed and the material known
to those responsible for its production. Where more than one meaning
is possible each possibility must be weighed in the light
of all
these factors. The process is objective not subjective. A sensible
meaning is to be preferred to one that leads to insensible
or
un-businesslike results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against,
the
temptation to substitute what they regard as reasonable,
sensible or businesslike for the words actually used. To
do so
in regard to a statute or statutory instrument is to cross the divide
between interpretation and legislation; in a contractual
context it
is to make a contract for the parties other than the one they in fact
made. The inevitable point of departure is the
language of the
provision itself, read in context and having regard to the purpose of
the provision and the background to the preparation
and production of
the document.” (Footnotes omitted.)
[21]
The adjudicator found that a small water feature as contemplated in
clause 5.4 of the Landscaping Rules did not include a pond
which he
found is defined as “
a body of standing water either natural
or artificial that is usually smaller than a lake
” and that
it could not have been within the contemplation of the drafters of
the rules that a koi pond should be considered
as part of “small
water features”. He did not find, as was contended by the
second respondent during argument, that
a koi pond was not a water
feature but only that it was not a
small
water feature (my
emphasis).
[22]
The interpretation of a document is a matter of law and not of fact
and, accordingly, interpretation is a matter for the court
and not
for witnesses.
[6]
Clause 5.4
stipulates that “
small”
water
features are permitted and can be positioned in any “
recess
of a unit or on patios”.
The
water features must be an earth colour
,
“the same or similar to the recommended colours for pots”
and
that the “
electrical
cord”
for
the “
water
feature pump”
must
be concealed
.
From
a proper reading of clause 5.4 the adjudicator was correct in finding
that a koi pond was not a small water feature. The language
used in
clause 5.4; the context in which, and the apparent purpose to which
it was directed at, is, in my view, clear. If a pond
does not
constitute a “small water feature” as contemplated in the
Landscaping Rules, then it is against the Landscaping
Rules for it to
be installed on Hall’s property.
[23]
However, the main issue, as far as I am concerned, is not the
installation of the koi pond
per se
,
but the allegation that the koi pond creates a nuisance as it
attracts frogs that make such a loud noise during the night that
it
impacts on the health of Jordaan and his wife. Based on the evidence
presented before him, the adjudicator made a factual finding
in
favour of Jordaan.
[24]
Jordaan testified
that
his wife is suffering from Hashimoto’s auto immune disease and
the frog noise is having a detrimental effect on her health
as she is
unable to sleep at night
.
In
support of his evidence
Jordaan relied on
the report of a well-known environmentalist and frog expert Vincent
Carruthers. Mr. Carruthers found that the
species
of the frog causing the disturbance was the Guttural Toad
Sclerophyrs
gutturalus.
In his report he described
the call of the toad as follows:
“
The
call of the Guttural Toad is a loud, pulsed bray, which is amplified
by the large vocal sac. Only the males call – the
purpose of
the call is to attract females to the site to breed. They call from
semi-concealed positions under overhanging rocks
or embankments. Each
call has a duration of about 0.8 seconds and is emitted once every
four or five seconds. Males congregate
at the breeding sites and
establish large choruses, which, to the human ear, produce a very
loud and incessant sound. Calling usually
starts around sunset and
continues until about midnight. There are occasional short periods of
silence if the chorus is disturbed”.
[25]
During the adjudication hearing a recording of the frog noise was
listened to. The
adjudicator found that the
noise constituted a disturbance not in keeping with the peace and
quiet offered by the estate.
He found that
the koi pond created a nuisance on the basis that frogs were
inhabiting the pond and creating a noise disturbance
which was
adversely affecting Jordaan and his wife.
[26] It was submitted by the second
respondent that, on the objective facts, the conduct of Hall
(installing the koi pond) did not
constitute a nuisance as
contemplated in Rule 8.1 of the Conduct Rules as such conduct was
undertaken in due and reasonable exercise
of the owner’s
property rights and any disturbance to Jordaan constituted a mere
discomfort, inconvenience or annoyance emanating
from the use of
neighbouring property which must be endured.
[27]
An occupier of land commits a nuisance by creating (or allowing) a
state of affairs on land whereby the owner or occupier of
other land
is unreasonably or unfairly and materially disturbed or annoyed or
interfered with.
[7]
The test is
an objective one. The standard applied is not that of a perverse,
particular or over scrupulous person but of a normal
person of sound
and liberal tastes and habits.
[8]
[28]
Clause 8.1 of the Conduct
Rules prohibits any member from creating any nuisance or disturbance
(whether through noise, odours, or
any manner whatsoever) on or about
the Estate.
The reality in this matter is
that the water feature is attracting a large number of very noisy
frogs to the flower bed. Objectively,
these frogs make an
unacceptable noise for the most of the evening and Jordaan and his
wife are finding it difficult to get a good
night’s sleep. In
my view the adjudicator was correct in finding that the koi pond
causes a disturbance and the only effective
way of removing the
nuisance was to order the removal of the koi pond.
[29]
In the result the following order is made:
[29.1] The appeal and cross appeal are
upheld.
[29.2] The adjudicator’s ruling
is set aside and replaced with the following:
[29.2.1] Mr L. Hall, the owner of Unit
[...], Waterfall Hills Mature Lifestyle estate, is ordered to remove
the koi pond erected
at Unit [...] within 14 days of this order.
[29.2.2] Mr L. Hall, the owner of Unit
[...], Waterfall Hills Mature Lifestyle estate, is ordered to restore
the flower bed adjacent
to Unit [...] to the original state with
indigenous plants within 14 days of this order.
[29.3] Costs in the
appeal to be paid by first and second respondents jointly and
severally.
[29.4] Costs of the
cross appeal to be paid by the second respondent.
_____________________________
L. WINDELL
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I agree.
_____________________________
C.REYNEKE
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Counsel for the
applicant: Advocate D. Mahon
Instructed by:
Faber Goertz Ellis Austen Inc.
Counsel for the
first respondent: Adv HM Viljoen
Instructed by:
Johan Victor Attorneys
Counsel for the
second respondent: Advocate HV Vorster
Instructed by:
Lloyd Attoreys
Date of hearing:
14 August 2018
Date of
judgment: 12 November 2018
[1]
In terms of
section 54 of the Act.
[2]
2014 (3) SA 39 (CC)
[3]
2010 (2)
SA 181 (CC)
[4]
2012 (4) SA 593 (SCA)
[5]
At 604 -605
[6]
KPMG v
Securefin Ltd
2009
(4) SA 399
SCA, at [39] and [40]
[7]
East
London Wester Districts Farmers Association v Minister of Education
& Development Aid
1989
(2) SA 63 (A)
[8]
Prinsloo
v Shaw
1938 AD 570