About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 237
|
|
Micawber 526 (Pty) Ltd v City of Tshwane (A252/13) [2015] ZAGPPHC 237 (27 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
A252/13
DATE:
27 MARCH 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between
MICAWBER 526
(PTY)
LTD
..........................................................................................................
Appellant
and
CITY OF
TSHWANE
....................................................................................................................
Respondent
JUDGMENT
Rabie J:
1.
This is an appeal from a judgment handed down by a magistrate who
heard the trial at Pretoria. The trial court heard the evidence
of a
single witness on behalf of the appellant (who was the plaintiff in
the court
a quo)
and
made a finding of absolution from the instance.
2. Before dealing
with the merits of the appeal I need to refer to the condonation
applications on behalf of the appellant. Firstly,
the appellant
applied in writing for the late noting of the appeal. A proper case
was made out for such relief and the respondent
did not oppose the
application.
3. In her practice
note which was filed late, the respondent's attorney noted that the
appellant failed to prosecute the appeal
timeously with the result
that the appeal had lapsed. Counsel for the appellant was only made
aware of this state of affairs when
I mentioned the issue at the
commencement of the appeal proceedings. There had been notice in this
regard to the appellant. He
thereupon applied for the required
condonation and for the appeal to be reinstated. These applications
were not opposed, or at
least not seriously opposed.
4. Having regard to
the factors mentioned by counsel from the bar and those mentioned in
the first condonation application and especially
the prospects of
success of the appeal, to which I shall refer to below, I am
satisfied that these applications should all be granted.
Background
5. The issue during
the trial centred around a servitude which the respondent had over
the property of the appellant.
6. The appellant had
a large shopping centre erected on the land which was let to Macro.
Around the building approximately 800 parking
bays for vehicles were
constructed. The area designed for the parking area was tarred.
7. From time to time
the respondent had to engage in certain maintenance work on the
underground electrical cables running along
the aforesaid servitude
which crossed the parking area. After completing such work during
June 2008 the respondent failed to close
a hole and trench that was
three meters deep and which posed a serious threat to the safety of
members of the public in and around
the parking area.
8. Due to the
respondent’s failure to repair the relevant area the appellant
repaired it for the amount of R62 388,74. The
respondent failed to
remunerate the plaintiff for the aforesaid remedial work and hence
the appellant instituted action against
the respondent for payment to
it of the aforesaid amount.
9. In its plea the
respondent admitted that in the past when the repair work to the
electrical cables had been done, the excavated
area had been repaired
to its previous state. In respect of its refusal to do so in respect
of the latest excavations, the respondent,
inter alia, pleaded as
follows in paragraph 6.3 of the plea:
"6.3 Defendant
further also avers that the Plaintiff is in violation of its
servitude rights in that it has unlawfully built
a parking area over
the servitude area and the depth and soil banking of that servitude
are a further violates the Defendant's
servitude rights in that they
cause repeated damage to Defendant's electrical cables hence the need
to repeatedly repair the cable."
(sic)
In paragraph 6.4.2
the following was pleaded:
"6.4.2 In the
alternative Defendant avers that if Plaintiff suffered damages in any
amount whatsoever, Defendant is not liable
for such damages since
plaintiff brought at the damage upon itself by unlawfully building
over a servitude area, contrary to the
terms of the servitude
agreement." (sic)
10. The main defence
of the respondent was thus that since the appellant had tarred the
parking area the respondent need not repair
the excavations it had
made to reach its electrical cables.
11. At the
commencement of the trial the following was agreed between the
parties:
"1.
Notwithstanding the disputes referred to in the pleadings, the
parties agree that the following will be the sole issues
between the
parties:
1.1 Whether the
plaintiff was entitled to build a parking area, covered with tar, in
the defendant's servitude area, condition C
in the title deed ("the
servitude area");
1.2 Whether the
defendant was obliged to do remedial work (restore to previous state)
after doing maintenance work in the servitude
area;
1.3 Whether the
defendant failed to make good the damages caused by the defendant
when it performed remedial work in the servitude
area during January
2008 and June 2008, within a reasonable time, thus prompting the
plaintiff to do the remedial work itself.
2. It is common
cause between the parties that:
2.1 The plaintiff
paid an amount of R62 388,74 for the remedial work, referred to in
the pleadings and that such an amount is reasonable;
2.2 The plaintiff is
the registered owner of erf 214, Six Fountains, Ext 5;
2.3 The plaintiff is
duly complied with all its obligations in terms of Act 40 of 2002."
(sic)
12. After referring
to the evidence of the appellant's witness and submissions made to
him, the magistrate found that he was not
able to make a finding as
to whether the appellant was entitled to tar the area of the parking
area where it crosses the servitude.
For this reason his judgement in
respect of the whole action was one of absolution from the instance.
13. I must at the
outset say that the state of the record of proceedings in the trial
court is very poor and that much of the evidence
had not been
properly transcribed. However, none of the parties indicated that
this was a concern as both found sufficient reliance
on the evidence
that was transcribed, the exhibits before the court, the magistrate's
judgement and the legal principles on which
they respectively relied.
I propose to do the same.
14. The main thrust
of the respondent's argument was that the appellant had to prove that
it had a right to construct a tarred surface
across the servitude
area and, secondly, that the respondent was obliged to do remedial
work by restoring the previous state after
having done maintenance
work in the servitude area.
15. This, the
respondent submitted, the appellant failed to do. In this regard the
respondent relied on the evidence which was placed
before the
Magistrate and upon which the magistrate could not come to a
conclusion. This evidence relates mainly to the Deed of
Cession of
Servitude K145/93 S which was alleged by the legal representative of
the respondent during cross-examination of the
appellant's witness,
to be the relevant document relating to the servitude in question.
This Deed of Cession of Servitude was registered
on 13 January 1993.
From the contents of this Deed it seems that this was at a time when
the area concerned constituted farmland.
16.
According to the Deed the City Council of Pretoria (now the
respondent) obtained a servitude of powerline of 31 metres wide
over
the relevant area. According to paragraph 2 of the Deed the council
is obliged to pay damages,
inter
alia,
caused
to any improvements caused by,
inter
alia,
the
repair of cables and equipment used for the transfer of electricity.
Paragraph 4 of the Deed prohibited the owner of the property
from
erecting any building or other structures on the servitude area. It
also contains a number of provisions relating to vegetation
which is
allowed and not allowed on the servitude area. Paragraph 5 of the
Deed ,
inter alia,
allows
for the servitude area to be used for purposes of farming, provided
the cables under or above the ground are not disturbed.
17.
Before dealing with the aforesaid arguments it is necessary to refer
to some of the other evidence. In his evidence Mr Coetzee,
who was
involved in the management of the construction process, referred to
the fact that the whole project was approved by the
municipality.
This included the tarred surface of the open parking area. I accept
for purposes hereof that the relevant local authority
was the
Kungwini Local Municipality in whose area of jurisdiction the land in
question falls. Mr Coetzee also referred to the establishment
of the
township in which the property is situated which was published in the
Provincial Gazette of 11 July 2007. The published
conditions relating
to the township acknowledges the servitude of the respondent which
runs across the appellant's property. The
Conditions of
Establishment, which also acknowledges the servitude, provides,
inter
alia,
as
follows: "Provided further that, the electrical servitude area
may be used for purposes of parking and/or for other purposes
with
written permission of the authorised authority".
18. Mr Coetzee
testified, in the first place, that the servitude relied on by the
respondent's attorney was not the servitude which
was relevant in the
present instance. He testified, in the second place, that even if the
said servitude were relevant, that such
written authority was
obtained from the respondent. He also referred to a written Service
Agreement with the respondent which apparently
recognised the tarred
parking area on the approved plans. He also testified that the
respondent had at all times been aware of
the fact that the parking
area had been tarred and had not complained. He added that when
repairs had to be made in the past, the
excavations as well as the
tarmac were repaired by the respondent.
19. It was, firstly,
submitted on behalf of the appellant that the magistrate erred by
absolving the respondent from the instance
for the reason that he
could not make a finding in respect of the question whether the
appellant was entitled to tar the area of
the servitude.
20. I agree with
this submission. The respondent's plea in this regard was in the form
of a special plea and consequently the onus
to prove the allegations
was on the respondent. Consequently, if the magistrate was unable to
find on the evidence whether the
appellant had been allowed to tar
the parking area across the area of the servitude, it only had the
effect of such special plea
not being further considered and it could
not have prevented him from finding in favour of the appellant and
awarding its claim.
It could thus not have resulted in a finding of
absolution from the instance in respect of the appellant's claim.
21. There was no
cross-appeal by the respondent against the finding in respect of the
special plea and consequently, at best for
the respondent, the
finding of the magistrate, which is in reality a finding of
absolution from the instance in respect of the
special plea relating
to the question whether the appellant could have tarred the servitude
area, still stands. That leaves the
balance of the issues which
clearly should have been found in the appellant's favour. In that
respect it was common cause that
the defendant had failed to do the
necessary remedial work within a reasonable time and that the amount
expended by the appellant
in that regard, was a reasonable one.
Consequently, for this reason alone, the appellant's claim should
have succeeded.
22.
The second submission made on behalf of the appellant was that the
question whether the appellant was allowed to tar the servitude
area,
was in fact an irrelevant issue. The submission was that the area
where the servitude is situated, as well as the tarred
surface, were
at all times the property of the appellant. The respondent, as holder
of the servitude, must exercise the servitude
civiliter
modo, i.e.,
in
a civilised, considerate way so as to cause as little inconvenience
as possible to the appellant as owner of the servient land.
According
to Lee and Honoré, Family, Things and Succession, second
edition, at paragraph 370, this also implies that the
holder of the
servitude may not increase the burden on the servient land beyond the
express or implied terms of the servitude.
23. In Sussman v
Stabilis Trust Finansieerders (Edms) Bpk
1970 (3) SA 58
(0) Hofmeyer
AJP said the following at p 60F:
"In this
connection it must be borne in mind that a servitude of way, as any
other servitude, must be exercised civiliter modo
which implies that,
although the holder is entitled to every right without which the
servitude cannot be properly enjoyed, the
servitude is limited to the
actual requirements of the dominant tenement. The holder must
'exercise his right with due regard to
the interests of the servient
property and its owner'. (See Texas Co. (S.A.) Ltd v Cape Town
Municipality,
1926 AD 467
at p. 474). The same principle was applied
in Nolan v Barnard,
1908 T.S. 142
at p. 152, where the question was
whether, once a servitude of grazing had been created over a farm,
the occupation and the cultivation
of that farm could in no way be
changed or enlarged? The reasonable view was adopted by the Court
that the servitude of pasturage
had to be interpreted 'liberally and
in favour of the owner of the servient property, viz., that so long
as the owner of the dominant
tenement can exercise fully the right
which has been granted to him he must not be allowed to interfere
with the right of the owner
of the servient tenement to use his farm
in a reasonable manner.
The owner of the
dominant tenement must not be allowed to curtail the rights of
ownership of the owner of the servient property
more than is
necessary to enable him to enjoy his servitude. In other words, the
right of servitude must be exercised civiliter
modo. And if there is
any doubt as to which interpretation we should prefer, we should
adopt the maxim which has been so often
referred to by the
commentators, namely, that in any doubtful case the interpretation
should rather lean in favour of the servient
than in favour of the
dominant tenement'.
It is unnecessary to
quote further authority for such well-recognised principles."
24.
In
Servitudes,
CG
Hall and EA Calloway, 1957 at 118, the following was stated regarding
the duties of the owner of the dominant tenement:
"The
owner of the dominant tenement must exercise his right in a manner
least burdensome to the servient owner. He must act
civiliter modo,
that is to say, he must not make the position of the servient owner
more difficult than is necessary for the due
and proper exercise of
his right (Cumming v Brown,
23 EDC 54
; Rubidge v McCabe,
1913 AD
441).
The dominant owner must use skill and care in the exercise of
his right, and if he does any damage, repair it (London and SA
Explorations
Co v Rouliot, 8 SC at 97). ... It is the dominant
owner's and not the servient owner's, duty to make the repairs
necessary for
the proper enjoyment of his right, e.g. the burden of
preparing a right of way, aqueduct and other rights of like nature
falls
upon the dominant owner (Domat, 1.12.5.3; Gale, p449), and he's
bound to effect the repairs if the servitude is of such character
that the want of repair causes damage to the servient tenement
(Washburn on Easements,
6
.
1
.
6
)."
25.
Consequently, so I understand the argument on behalf of the
appellant, by destroying the tarred service without repairing it,
and, more importantly, by leaving a deep excavation which clearly
created a serious danger to the life, limb and property of the
general public, and by so doing also preventing the appellant's
customers from using the parking area and driving over and parking
on
the servitude area, the respondent acted unlawfully. I agree with
this argument and I further agree with the submission that
even if
the appellant was in the first place not entitled to tar the
servitude area, such fact would never be a defence to the
aforesaid
unlawful conduct. To allow the respondent to avoid the consequences
of the destruction of the appellant's property without
repairing
same, and the creation of a danger to the general public and to the
visitors to the appellant's property, in this manner,
namely as a
defence to its own unlawful conduct, would be tantamount to apply the
versari in re
illicita
principle
which is no longer part of our law.
26. I consequently
agree with the conclusion that the content of the servitude is not
relevant in the present proceedings. If the
respondent were to remain
of the view that the appellant is contravening the terms of the
servitude, and that no permission to
tar the servitude area had been
given by the respondent, the respondent may consider having the
matter adjudicated in proceedings
directed specifically at that
purpose. It is not a defence to his otherwise unlawful conduct.
27. It would
furthermore be during such proceedings where the correct servitude
would be identified and even if it were to be the
one alleged by the
respondent, the court would consider whether, in the days we live in
now, a tarred surface can really be regarded
as "building a
structure", having regard to the ease with which modern
equipment cut through tarred surfaces and the
ease by which such
surfaces are restored. Furthermore whether a tarred surface should be
regarded a "structure" on a
proper interpretation of the
servitude. If necessary the court might decide to amend the servitude
for the reason that it seems
ridiculous that a narrow passage through
an 800 vehicle tarred parking area should be left untarred.
28. Finally, apart
from the above considerations, it should be considered that the
evidence before the trial court was that the
respondent had given its
written permission for the parking area to be tarred; and furthermore
that the respondent had been aware
of this situation all along; had
done nothing contrary thereto; and had in fact in the past restored
the tarred surface to its
previous state at its own costs. No
rebutting evidence was presented by the respondent. On this basis
too, the appellant's claim
should have succeeded.
29. In the result
the following order is made:
1. The condonation
applications applied for by the appellant are granted and the appeal
is reinstated.
2. The appeal is
upheld with costs.
3.
The order of the court a
quo
is
replaced with the following order:
"1.
The defendant is ordered to pay the plaintiff an amount of R62 388,74
together with interest there on at the rate of 15.5%
per
annum
from
27 November 2008 to date of payment.
2. The defendant is
ordered to pay the plaintiffs costs of suit."
C.P. RABIE
JUDGE OF THE HIGH
COURT
I agree:
M. ISMAIL
JUDGE OF THE HIGH
COURT