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[2016] ZAGPPHC 887
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Kranspoort Eienaars Komitee v D J and Another (41310/2015) [2016] ZAGPPHC 887 (23 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
23/9/16
CASE
NO: 41310/2015
Reportable:
No
Before
His Lordship Mr Acting Justice Davis
Date
heard: 12 September 2016
Judgment
delivered: 23 September 2016
In
the matter between:
KRANSPOORT
EIENAARS KOMITEE
(REGISTRATION
NO:
2004/023323/08)
Applicant
and
M
J
First
Respondent
C
J
Second
Respondent
JUDGMENT
DAVIS,
AJ:
[1]
This is matter concerning a barking dog, to whit a Chihuahua. It is
to be deprecated that a high court is burdened with such
a dispute as
the present one and it is equally deplorable that the parties cannot
themselves resolve an issue of this nature.
[2]
The identity of the parties and the nature of the dispute appear from
the following summary as distilled from the papers:
2.1. The Applicant is a
company previously incorporated in terms of Section 21 of the
Companies Act, 1973 with registration number
2004/ 023323/08. It is a
company incorporated not for gain and without share capital. Its
Memorandum of Incorporation states its
principal business as being
the following:
"Die
hoofbesigheid wat die maatskappy gaan dryf is om
as
vereniging
van die eienaars van erwe in Kranspoort Vakansiedorp en Kranspoort X1
Vakansiedorp, Mpumalanga Provinsie die administrasie,
ontwikkeling en
bestuur daarvan
as
'n dorp oar te neem en te behartig en
eiendomsreg te neem van bates wat die eienaars van erwe
as
'n
groep toekom."
2.2. The First Respondent
is the member of a close corporation, Carma Behuisings BK who is in
turn the registered owner of an erf
in Kranspoort X1 Vakansiedorp,
Mpumalanga. Although the close corporation has been deregistered, the
First Respondent intends applying
for its re-registration. The First
Respondent and her 37 year old son (the Second Respondent) have their
residence on the aforementioned
erf.
2.3. The close
corporation had acquired the erf from the liquidators of the initial
developer of the township in which the erf is
situated and it was
registered in the close corporation's name on 3 April 1996. This
registration predates the incorporation of
the Applicant and the
relevance hereof shall be more apparent hereinlater. The Applicant
alleges that all landowners within the
two townships referred to in
the Applicant's Memorandum of Incorporation (referred to by the
Applicant as
"the development' )
are members of the
Applicant and subject to management rules prescribed for the township
by the Applicant's board of directors.
2.4. In terms of the
rules no pets or farm animals are allowed in any public place, street
or private property or erf in the townships.
2.5. The townships (or
"development')
are stated to constitute a rustic
nature-lover's environment where various species of game like impala,
kudu, giraffe, warthog,
baboon, vervet monkey and many other
varieties occur and is also home to a large variety of birds. The
Applicant states that the
management rule was accepted to enhance and
maintain the township as being a development situated in unspoilt
nature.
2.6. In 2012 and due to
the fact that the Second Respondent had been involved in a car
accident which, for a period of time, left
him homebound, a pastoral
counsellor and the First Respondent successfully motivated a request
for permission for the Second Respondent
to keep a miniature
Chihuahua as a pet. The motivation
inter alia
read as follows:
"Mnr C. D. J. is
na my toe verwys vir pastorate sorg en hulpverlening. My waarneming
was dat hy baie eensaam was en dat die
lewe vir hom geen sin in gehad
het nie. Hy was nie
meer in kontak met sy emosies nie. Uit my
praktyk-ervaring en ondervinding met kliente wat hut lewenswaarde
verloor het is die sorg
van 'n troeteldier dikwels geskikte en
helende behandeling
...
Ek is bewus van die Kranspoort reels
maar die feit om vir 'n jong man weer iets te gee om te lewe het vir
my swaarder geweeg as
'n reel wat buigbaar kan wees in sekere
omstandighede... Dit is klein, opgeleide hondjie wat geen skade kan
aanrig nie en ook nie
steurend is nie en die hele tyd in die huis is.
Hierdie kan gesien word in dieselfde fig as 'n gidshond."
2.7. Pursuant to the
aforesaid motivation the Applicant granted consent that the Second
Respondent may keep the pet. The consent
contained the following
caveat:
"lndien daar in
die toekoms ernstige klagtes oor die hondjie ontvang word, kan daar
besluit word om die goedkeuring terug te
trek."
2.8. At some stage the
Second Respondent acquired a second
"large breed dog"
but this dog has since died.
2.9. Since the beginning
of January 2013 the Applicant has received various complaints from
other landowners, the gist of which
can be found in one of the
complaining letters where it is stated as follows:
"Die honde blaf
vroeg in die oggende en wanneer die koedoes/rooibokke en selfs
stappers by die huis verby beweeg en die skel
geblaf uit die huis met
die skoonmaakdienste is daar gereeld deur die dag mense wat sleutels
kom optel en is daar 'n gedurige geblaf
Dit is werklik steurend. Ons
wit nie onnodig kla en daarom na deeglike oorweging die skrywe aan
bestuur te rig."
2.10. Photographic
evidence also indicates that the Chihuahua is not always kept inside
the house and in fact roams outside it.
The Second Respondent also
appears no longer to be homebound and is in fact employed in a liquor
store close to the property.
2.11. Pursuant to this
the Applicant revoked the permission granted. Pending finalisation of
the application, the dog was however
still kept at the property and
in untested evidence presented by way of a supplementary affidavit on
the date of hearing, the First
Respondent with reference to an
electronic media item stated that the Second Respondent attempted
suicide on 9 November 2015 and
it is alleged that the attempted
suicide was directly related to the threats and ongoing attempts by
the Applicant to remove the
pet Chihuahua. The suicide attempt
apparently involved the Second Respondent stabbing himself in the
leg, in the stomach and cutting
off his penis.
2.12. So far the
background facts.
[3]
THE ENFORCEMENT OF THE MANAGEMENT RULES:
It
is trite that in motion proceedings the Applicant can only succeed
if, on its uncontested version read with the version of the
Respondent (unless the latter is so patently false and fanciful that
it should be rejected) a proper case has been made out (the
Plascon-Evans-rule
).
Regarding the
enforceability of the management rules, the Respondents state that:
3.1. The two townships
comprising the Kranspoort Vakansieoord were established, despite the
inclusion of game and unspoilt nature,
as townships in the true sense
of the word and not as sectional title schemes or
"developments"
with homeowners associations.
3.2. Although the
Respondents enjoy the benefits of the efforts of the Applicant and
its board of directors and pay monthly levies,
they nevertheless deny
having become members of the Applicant.
3.3. Although the
Applicant's statute states that when an erf in the township is
registered in the name of an owner he thereupon
ipso facto
becomes
a member of the Applicant and that a registered owner of an erf
cannot resign his membership in the Applicant until such
time as his
ownership terminates, it further contains the following clause:
" LIDMAATSKAP
2.1.
Die lede van die
maatskappy
is
die ondertekenaars van die akte van oprigting
wat geag word lede te wees
en daardie ander persone,
regspersone of liggame wat op aansoek toegelaat
is
tot
lidmaatskap ooreenkomstig die bepalings van hierdie statute."
3.4. The Respondents say
that they never applied for membership and were never granted such
membership. They further say that the
ownership of the Carma
Behuisings BK predates the incorporation of the Applicant and the
Applicant cannot by way of its own incorporation
alone, absent any
title condition, impose its membership on the Respondents.
3.5. As a counter, the
Applicant attempted to rely on the principles of estoppel namely that
the Respondents have by their conduct
as referred to above, created
the impression that they are members of the Applicant and therefore
bound by its management rules
and they cannot now say otherwise.
3.6. The issues of
estoppel and how the incorporation of the Applicant came about or how
it bound owners of erven within the townships
contain, apart from the
legal contentions, factual issues which clearly cannot and should not
be resolved on the papers alone.
There is therefore a factual dispute
as to whether the Applicant is entitled to summarily enforce its
management rules on the present
Respondents.
[4]
That is however not the end of the matter and to allow the
status
quo
to continue unabated will clearly lead to further conflict
and unhappiness and might also prejudice other landowners in the
township.
This issue needs to be considered as the Applicant also, as
representative of its members, being the neighbours in the broad
sense
of the Respondents, rely on the principles of nuisance.
[5]
In
Burchell, Principles of Delict
,
the learned
author relies on the following description of the legal concept of
nuisance (at 65 with reference to the work of Olivier,
Pienaar &
Van der Walt):
"...
an
infringement upon the neighbours' use and enjoyment of his land
amounting to the violation of
a
personal right (such
as
health) or
a
right of use (such
as
his right to
uninterrupted enjoyment of his property which is violated by noise,
smells, gasses and
so
on)."
The
learned authors further make the following applicable comment (at
66):
"The essence of
the enquiry into unlawfulness in nuisance cases involves an attempt
to balance the sometimes conflicting interests
of neighbours and
others and to determine whether
a
person's conduct is
unreasonable. Numerous factors may be relevant: the time and place of
the commission of the alleged nuisance,
the seriousness of the harm,
the social utility of the conduct and the motive of the actor. These
factors are by no
means
exhaustive and the central issue is
one of balancing the interests of the conflicting parties and
determining whether the Defendant
is
exercising his or her
rights reasonably."
The
learned authors Neethling Potgieter Visser in the 7
th
Edition of
The Law of Delict
state the following under
the heading
"Nuisance"
(at 127):
"Nuisance usually
involves repeated infringement of the Plaintiff's property rights. An
objective weighing up of the interests
of the various parties, taking
into account all the relevant circumstances
is required in
these matters. Examples of nuisance include repulsive odours, smoke
and
gasses
drifting over the Plaintiff's property from the
Defendant's land
... a
disturbing noise
...
(other
examples are also furnished)."
[6]
Having regard to the abovementioned principles it is clear that:
6.1. The Applicant
represents landowners constituting neighbours of the Respondents.
6.2. The Respondents as
occupiers, irrespective of the ownership of the property in the name
of a currently deregistered close corporation,
are also neighbours of
the other owners.
6.3. The Applicant's
members are entitled to the peaceful and undisturbed use of their
property and the enjoyment of the nature
thereof as described above
as also being the reason why they became owners in the townships (as
distinct from urban townships without
free roaming game).
6.4. The Respondents may
not exercise their rights of enjoyment of their property including
their ownership of a pet in such a manner
or fashion that it
encroaches on neighbours' (in the broad sense) rights.
6.5. The Applicant has
made out a case for the restriction of the Respondents' ownership of
their pet Chihuahua to such an extent
that other property owners are
not prejudiced.
[7]
I have taken all the above factors into consideration including the
clearly compromised position of the Second Respondent as
evinced in
the circumstances referred to in paragraph 2.11 above in considering
the nature and extent of the interdict claimed
by the Applicant in
prayer 3 of its notice of motion and in respect of the issue of
costs.
[8]
ORDER:
In
the premises I make the following order:
8.1. The First and Second
Respondents are interdicted from keeping a dog/s on Erf […] X1
Kranspoort Vakansiedorp otherwise
than on the following conditions:
8.1.1. The dog/s may not
roam outside the dwelling occupied by the Respondents;
8.1.2. The dog/s may not
be left unattended at the Respondents' dwelling;
8.1.3. Active steps must
be taken by the Respondents to ensure that the dog does not become a
nuisance to any other landowner in
the township which shall include
the prevention of the dog making a noise or barking at game,
wildlife, cleaning staff, visitors
or other neighbours passing the
property which the Respondents occupy in the township.
8.2. The Applicant is
granted leave to supplement its papers and approach this court should
the Respondents be or remain in breach
of the aforesaid conditions.
8.3. Each party shall pay
its own costs.
________________________
N
DAVIS
ACTING JUDGE OF THE HIGH
COURT
Date
of hearing:
12 September 2016
Judgment
delivered:
23 September 2016
Counsel
for Applicant:
Adv H A A Krige
Attorneys
for Applicant:
Friedland
Hart Solomon & Nicolson
Monument
Office Park 4-301
79
Steenbok Avenue
Monument
Park
Pretoria
Counsel
for Respondents:
Adv F Lamprecht
Attorneys
for Respondents:
Ben van Lingen Attorneys
c/o
Swaak Attorneys
79
Eras Street
Wonderboom
Agricultural Holdings
Pretoria