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[2016] ZAFSHC 232
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Mangaung Metropolitan Municipality v Tsoei and Another (3367/2016) [2016] ZAFSHC 232 (15 December 2016)
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 3367/2016
In
the matter between:
MANGAUNG
METROLOLITAN MUNICIPALITY
Applicant
and
KEHELETWE
ASAEL TSOEI
1
st
Respondent
LEHLOHONOLO
ASAEL TSOEI
2
nd
Respondent
CORAM:
HEFER,
AJ
JUDGMENT:
HEFER, AJ
HEARD
ON:
17 and 24 NOVEMBER 2016
DELIVERED
ON:
15
DECEMBER 2016
INTRODUCTION
[1]
The applicant is engaged in a project for the upgrading of the
existing asphalt roads and storm water system in Bochabela,
Bloemfontein. This project is understandably important as the
existing asphalt roads are in poor condition, peppered with potholes
as well as edge breaks. Furthermore, what is of importance for
purposes of the present application, there is no existing form of
storm water drainage in the area, which leads to flooding of the
properties bordering these roads when it rains.
[2]
A firm of Engineers, WSP, was appointed to see to the upgrading,
construction and repairs which includes the development of
a formal
storm water drainage system.
[3]
During June 2015, whilst conducting surveys for the purpose of the
construction and repairs referred to, it was found that the
respondents’ property, which consists of a residential
property, was encroaching upon the road reserve, of which the
applicant
is the registered owner.
[4]
At this stage, it is convenient to describe the encroachment, of
which photographs were appended to the founding- as well as
replying
affidavits, as follows:
[i]
The respondents’ residence situated on the property consists of
a medium to large
size double story house.
[ii]
In front of the house there is an enclosed paved area, the dimensions
of which are irrelevant
for purposes of the present application.
[iii]
The enclosed area referred to, is closed off by devils fork fencing
on the sides and a concrete fence
and electric operated gate in the
front.
[5]
It is evident from the photographs that the devils fork fencing on
the sides extend beyond the erf boundaries of the neighbouring
houses
to an extent of approximately six metres. The effect of the
encroachment as described is as follows:
[a]
pedestrians who wishes to walk past the respondents’ property,
are not able to continue on the
“pavement”, but have to
go onto the road surface, past the respondents’ property and
then up unto the “pavement”
after passing the
respondents’ property; and
[b]
the trench which have already been dug out for the storm water
drains, only goes up to the concrete
fence and stops there due to the
concrete wall itself preventing it from continuing on the same path.
Pavement
is used in inverted commas because the area concerned is not a formal
area. Next to the road there is a slightly higher
grass covered area
which according to the photograph, appears to be for the use of
pedestrians.
[6]
According to the applicant, prior to the current encroachment, the
concrete and devils fork fencing referred to, extended to
a lesser
degree onto the applicant’s property, in other words, the
current fenced of paved area referred to in front of the
residence,
was smaller during June 2015. The applicant refers to the
situation on June 2015 as “
the
initial encroachment’
.
At that stage during the design stage, November 2016, the applicant
was willing to accommodate the respondents in that the pipeline
has
to run behind the kerb line which would mean that the pipeline would
miss the fence of the property. However, it
now appears
that when WSP came on site during January 2016, the fence of the
respondents’ property was moved even further
onto the road
reserve. The encroachment extended 4.23 metres on the one side and
3.82 metres on the other side.
[7]
It is common cause that numerous meetings have taken place between
all parties concerned in an attempt to find a solution to
the
problem. Of importance for purpose of the present application is that
it is also common cause that a meeting took place on
the 2
nd
of
March 2016 to discuss the matter. During this meeting the
applicant was represented by certain officials whilst the
respondents
represented themselves. According to the Respondents they had
“
compromised the
dispute
”
during
this meeting to the effect that elbows could be inserted so as to
circumvent the encroaching area and keep the pipeline on
both sides
connected to each other. According to the respondents, this option
was decided upon as a solution to a further alternative
to the
demolition as suggested by the officials representing the applicant
during the meeting. The applicant in it’s founding
affidavit
already stated that no agreement had been reached during the March
2016 meeting and also denies the compromise in it’s
replying
affidavit.
[8]
For sake of completeness, it needs to be mentioned that the applicant
, in it’s replying affidavit, further alleged that
the use of
the elbow connections referred to by the respondents were in any case
impractical. Furthermore, in regards to the alleged
compromise, the
applicant further replied that the relevant officials who represented
the applicant during the meeting of March
2016, did not have the
necessary authority to conclude any agreement with the respondents as
alleged. The respondents in their
rejoinder affidavit, then raised
the plea of estoppel, namely that the applicant should be estopped
from denying the authority
of officials referred to.
[9]
In their opposing affidavit the respondents state that “
the
encroachment now consist only of a boundary wall, a garden- and paved
area”
.
This
in effect indicates that the existence of the encroachment is
not disputed. During the hearing of the matter, Mr Grobler
on behalf
of the respondents, also conceded that the property of the
respondents is presently encroaching on the property of the
applicant.
[10]
The first issue which needs to be decided is whether a compromise was
indeed reached between the parties during the meeting
held on 2 March
2016. The respondents, in their opposing affidavit, as well as during
argument have chosen to rely on a compromise
in particular and not
solely on an agreement.
The
very essence and motive of a compromise is the uncertainty and doubt
of the parties as to their respective rights. (See
Natal
Bank v Kuranda
1907 TH 155
at 167. In
Vena
v Port Elizabeth Divisional Council
1933
EDL Graham, JP said the following at page 87:
“
A
compromise takes place where there is a question of doubt and the
parties agree not to try it out but to settle it between themselves
by a give and take arrangement. – See
Huddersfield
Banking Company v Lister
(1896L.R.2 CH.D285), and in
Mozley’s
Law Dictionary
I
find “A compromise” defined as “an adjustment of
claims and disputes by mutual concession either without resort
to
legal proceedings or on the condition of abandonment of such
proceedings if already commenced.”
[11]
A dispute exists when one party maintains one point of view and the
other party the contrary or different one, even if one
disputant is
prepared to listen to further argument. (See
Williams v Benoni
Town Council
1949 (1) SA 507
W. Also
Dictionary to
Legal Works and Phrases
Claassen, Vol. 2 –p. D - 46).
[12]
According to the respondents, during the meeting held on 2 March
2016, the officials representing the applicant told them that
they
had two alternatives to the demolition of the fence and encroachment.
Although the respondent in their opposing affidavit
made an attempt
to create the impression that the boundary lines of the property are
uncertain and cannot be established, it is
not the case of the
respondents that during the meeting of the 2
nd
of March 2016 nor any other meeting, it was disputed that the
respondents’ property is not encroaching upon the property
of
the applicant. This is not a case where one party maintains one point
of view and the other party the contrary or a different
one as
envisaged in the matter of
Williams
v Benoni Town Council
(supra), referred to. Whereas it appears that it was common cause
between the parties that the area referred to, is indeed encroaching
on the property of the applicant, there existed no dispute for
purposes of a compromise. At best for respondents, if it be found
that an agreement was reached between the parties during the meeting
referred to, it can merely be described as a solution to the
problem
of the respondents’ encroachment obstructing the laying of the
storm water pipes.
[13]
Mr Grobler further argued that the well-known “
Plascon
Evans Rule”
should
be applied in matter and that the court should indeed find that an
agreement was indeed reached on 2 March 2016, whereas
the applicant
is completely silent about what exactly transpired during the said
meeting, save for stating that no agreement was
concluded. It was
also suggested that due to the existence of an irresolvable dispute
of fact, that the application should be dismissed.
This argument was,
however, nor pursued during the hearing of the matter. Due to the
reasons hereunder, I do not consider it necessary
to deal with this
point any further.
[14]
As stated, according to the respondents, the effect of the compromise
would be that elbows were to be inserted so as to circumvent
the
encroaching area and keep the pipeline on both sides connected
to each other. That would mean that the devils fork as
well as the
concrete fencing will remain in place. This will also have the effect
that pedestrians will have to “
take
a detour around the respondents’ property”
in
the sense that pedestrian will have to get down from the “pavement”
when they get to the respondents’ property,
lower themselves to
the road level and then climb onto the “pavement” again
after passing the respondents’ property.
As stated, it appears
that previously the encroachment even extended further to what the
respondent’s themselves a so-called
“
gardened-
and paved area
”
.
This appears currently to be removed due to the construction works in
progress. The fact that the property is situated in a rather
“
simple/ordinary
”
suburb in comparison to
one of the rather upper-class suburbs in Bloemfontein, as suggested
during argument, does not make any difference.
The fact remains that
pedestrians, wherever they are walking, are entitled to walk on a
“pavement” where there is no
risk of being hit by passing
vehicles.
[15]
In
Eastwood
v Shepstone
1902
TS 294
at 302 Innes CJ stated:
“
Now
this court has the power to treat as void and to refuse in any way to
recognise contract and transactions which are against
public policy
or contrary to good moral. It is a power not to be hastily or
rationally exercised; but when once it is clear that
any arrangement
is against public policy, the court would be wanting in its duty if
it hesitates to declare such an arrangement
void.”
[16]
These principles were endorsed by the Supreme Court of Appeals in
Sasfin (Pty) v Beukes
1989 (1) SA 1
where Smallberger
JA who gave the judgment of the majority of the court stated at 8(c)
as follows:
“
Wille
in his Principles of South African Law, 7
th
edition at 324 speaks of an agreement being contrary to public policy
if it is opposed to the interests of the state, or of justice,
or the
public. Interest of the community or the public are therefore of
paramount importance in relation to the concept of public
policy.
Agreements which are clearly inimical to the interest of the
community, whether they are contrary to law or morality, or
counter
to social or economic expedience will accordingly on the ground of
public policy, not be enforced. (See also
Standard Bank of SA
Ltd v Essop
1997(4) SA
569 and
Botha (now
Griesel) and Another v Finance Credit (Pty) Ltd
1989 (3) SA 773
A at 782.”
[18]
In this instance it should also be considered that according to the
applicant, the encroachment fences in the electric box
of Centlec
which is not allowed in that employees of the applicant as well as
Centlec should have unobstructed access to this box
and the first
encroachment is on top of the electricity line and on the longer side
over the space reserved for telephone lines,
ADSL lines, etcetera,
which will hamper the rendering of services, installing and
maintenance of further services as well. The
main concern, however,
is the safety of the pedestrians.
[19]
Therefore, although the existence of an agreement, or more in
particular a compromise is disputed by the Applicant, I find
that
even if an agreement had been reached between the parties, such
agreement will be void and unenforceable due to the fact that
it will
be contrary to public policy.
[20]
In
Trustees, Brian Lackey Trust v Annandale
2004 (3) SA
281
CPD Griesel J confirmed the principle that a court has a
discretion, in certain circumstances, to order damages instead of
demolition
of encroachment. At page 291 A to B, the following was
stated:
“
It
further appeared when reference was made to the existence of such a
discretion, it was done in a context of fairness. The court
accordingly held that, especially in the field of neighbour law,
consideration of reasonableness and fairness were prominent factors
in the exercise of the court’s discretion. Based on highly
exceptional facts of the case, the court exercised it’s
discretion in favour of the respondent and against the application
for a demolition order.”
In
this regard the respondents propose in their opposing affidavit that
the trench for the pipeline should simply be dugged underneath
the
devils fork fence (on both sides), the pipeline subverted so as to
run through the area of encroachment and closed up again.
The
respondents further tendered to purchase the area of encroachment
from the applicant. According to the respondents, what they
cannot
afford is the outright demolition of the wall structure. Given the
positioning of the respondents’ house, it will
mean that they
would have to almost forego the entire front fence, which will
obviously negatively impact upon the safety features
of a house, and
diminish it in value both aesthetically and monetarily. This,
according to the respondents, will cause them great
prejudice.
The
respondents, however, lose sight of the fact that the property upon
which they are currently is the property of the applicant.
The
respondents were at no stage, being the initial encroachment stage,
as well as currently, entitled to erect any fence or structure
on the
property of which the applicant is the registered owner. The
respondents only have themselves to blame for the current situation.
As stated, if the encroachment is not demolished as sought by the
applicant, the effect thereof will be that it is contrary to
the
public interest for various reasons already stated above.
[21]
As far as the costs are concerned, Mr Roux on behalf of the applicant
argued that the respondents should be penalised by a
punitive cost
order. I am in agreement with this argument. The respondents
not only encroached upon the property of the applicant
earlier during
November 2015, but even went so far as to extend the encroachment to
a larger degree to what we currently found.
After several attempts to
resolve the problem, the respondents still refuse to demolish the
encroachment. In this regard it needs
to be mentioned that from what
can be ascertained from the photographs in regards to the property,
there is no reason why the same
fences and boundary wall may not be
erected on the boundary lines, therefore closer to the respondents’
residence. If that
is done, the safety concerns by the respondents
will also be addressed. The respondents’ reluctance to demolish
the encroachment
can only be contributed to respondents’
attempts to enlarge their property in an improper manner at the
expense of the applicant.
Furthermore as stated, it inconveniences
and endangers pedestrians wishing to pass their property. For those
reasons, a punitive
cost order in the exercise of my discretion
should be awarded.
ORDER
[22] Accordingly the
following order is made:
1.
The
respondents are ordered to remove any and all encroachment of their
property onto the road reserve and property of the applicant
in front
of and/or adjacent to erf [...], M. S., B., Bloemfontein also known
as erf 30702, Mangaung Extension […], Bloemfontein,
Free State
Province;
2.
Should the
respondents fail or neglect to remove the encroachment within twenty
one days after an order herein is granted, the applicant
is
authorised to, by way of its employees or contractors, remove the
encroachment;
3.
The
respondents will be held liable for any costs in removing the
encroachment in terms of paragraph 2 of the order;
4.
The
applicant, it’s employees or contractors are indemnified for
any damages caused due to the removal of the encroachment;
5.
Respondents
are to pay the costs of the application on an attorney/client scale.
__________________________________
J.J.F.
HEFER, AJ
On
behalf of the plaintiff:
Adv. L A Roux
Instructed by Moraka
Attorneys
BLOEMFONTEIN
On
behalf of the respondents: Adv. S. G Grobler
Instructed by Kramer
Weihmann Joubert Attorneys
BLOEMFONTEIN