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[2015] ZAGPPHC 463
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South African National Roads Agency Ltd v Numeria Trading Pty Ltd and Others (27873/12) [2015] ZAGPPHC 463 (22 June 2015)
REPUBLIEK
VAN SUID-AFRIKA
REPUBLIC
OF SOUTH AFRICA
IN
HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENGDIVISION: PRETORIA)
Case
No: 27873/12
In
the matter between:
SOUTH
AFRICAN NATIONAL ROADS AGENCY
LTD
Applicant
and
NUMERIA
TRADING PTY
LTD
First Respondent
TYSOCON
PROPERTIES PTY
LTD Second
Respondent
THORNHILL
VILLAGE HOMEOWNERS ASSOCIATION Third
Respondent
POLOKWANE
MUNICIPALITY
Fourth Respondent
JUDGMENT
Background:
1.
During 2006 the first respondent developed a township known as Bendor
XB7 on the North Eastern side of Polokwane. The township
is situated
on the western side of the N1-27 national road (going in a
north-south direction) and the southern side of the RB1
national road
(going in west-east direction) and more particularly in the corner
where these two roads intersect. In terms of one
of the conditions
for the approval of the township the first respondent built a brick
wall along the boundary of the township opposite
both of the
aforesaid national roads.
2.
The surrounding land slopes slightly from the south-east to the
north-west with the result that the natural flow of rainwater
is from
the side of the present N1-27 road through the township in the
direction of the R81 road.
3.
In the past, and more particularly at the time when the township was
developed, the flow of rainwater did not cause any problem.
At that
time the present N1-27 national road had not yet been built and the
only road in the road reserve was one with single lanes
in both
directions which was situated more than 100 m from the boundary wall
of the township abutting the road reserve. This distance
and the
vegetation growing on that portion of the road reserve resulted in
rainwater being attenuated to such an extent that no
unnatural
accumulation of water or water flow resulted.
4.
This situation changed drastically after the applicant built what is
now known as the N1-27 national road and a further service
road on
this particular road reserve laying to the East of the township.
These roads were built during
2009.
The roads on the road reserve are thus presently the N1-27 national
road situated more or less in the middle of the road reserve
and two
service roads on each side thereof. Underneath all three roads, in
the area opposite the township, the applicant constructed
respectively six large culverts connected by canals to cater for the
flow of water through the road reserve. The most easterly
culverts
emit their water approximately 1O m from the Western boundary wall of
the township.
5.
The construction of these roads and the culverts has lead to a
situation where the stormwater which is fed through the newly
constructed culverts underneath the three roads accumulates against
the western boundary wall of the township, runs in a northerly
direction towards the intersection with the R81 national road, and
then runs around the corner of the boundary wall in a westerly
direction where it ultimately, under severe weather conditions,
floods the R81 national road.
The
Present Application:
6.
The aforesaid dilemma prompted the applicant to launch the present
application seeking declaratory and interdictory relief against
the
respondents. As mentioned, the first respondent was the developer of
the township. The second respondent intended to develop
a certain
area within the township but this has not come to fruition. The third
respondent is one of two homeowners associations
relating to the
township and the fourth respondent is the Polokwane Municipality.
The
Point In Limine:
7.
At the commencement of the proceedings before this court the parties
agreed that the point in limine taken on behalf of the first,
second
and third respondents should first be adjudicated. This relates to
the issue of non joinder which was mentioned by
the respondents
in the answering affidavit.
8.
There are two grounds on which the issue of non-joinder is based. The
first ground results from the fact that the applicant had
cited, as
third respondent, the Thornhill Village Homeowners Association. The
respondents thereupon stated that there is a further
home owners
Association namely the Thornhill Estate Homeowners Association to
which a large number of owners of property inside
the township belong
and which should have been joined as a party to the present
proceedings.
9.
In the replying affidavit the deponent thereof stated in response
that he was advised that the Thornhill Estate Homeowners Association
would be joined in these proceedings. This, however, never happened.
Adv Maleka SC, assisted by Adv Nalane, on behalf of the applicant
endeavoured to show that there was not sufficient evidence before the
court to support the contentions of the respondents.
10.
On the premise that it was necessary to have cited a Homeowners
Association, it is clear that the Thornhill Estate Homeowners
Association does exist as a second Homeowners Association to which a
number of property owners belong. Those owners clearly do
not belong
to the third respondent and, on the aforesaid premise, the Thornhill
Estate Homeowners Association should also have
been joined as a
necessary party to these proceedings. I choose, however,
not to make a finding as to the joinder of
the Thornhill Estate
Homeowners Association to these proceedings and shall leave that
decision to the applicant and/or the Thornhill
Estate Homeowners
Association itself. I refrain from doing so as a result of my view of
the second ground upon which the point
in limine was based.
11.
The second ground upon which the point in limine was based relates to
the non-joinder of the individual owners of the different
properties
inside the township. The reality of the present situation is that the
township had been subdivided into separate erven
which had all been
duly registered into the names of their respective owners. The fourth
respondent, the municipality, is the owner
of the roads inside the
township. All the individual owners belong to the aforesaid two
homeowners associations.
12.
In order to decide whether it was sufficient for the applicant to
have merely cited a homeowners association (or both), it is
necessary
to consider the test for joinder of a party. This test was restated
in
Bowring
NO v Vrededorp Properties CC and Another
2007(5) SA 391 (SCA)
by Brand JA as follows in paragraph
[21] on page 398:
"The
substantial test is whether the party that is alleged to be a
necessary party for purposes of joinder has a legal interest
in the
subject-matter of the litigation, which may be affected prejudicially
by the judgement of the Court in the proceedings concerned."
13.
In order to decide whether the individual owners have a legal
interest in the outcome of the proceedings before
this court which interest may be
prejudicially affected by a judgement of this court, it is
necessary
to have regard to the relief claimed by the applicant.
14.
Prayer 1 is for an order "declaring that the first, second and
third respondents should forthwith construct the necessary
drainage
system to allow acceptance of storm-water from the road reserve into
the township, in accordance with the provisions of
Sections 46 (3)
and 47 (2) of the South African National Roads Agency Ltd and
National Roads Act, Act 7 of 1998." Section
46 (3) provides as
follows:
"(3)
The owners or occupiers of land adjoining any national road must -
(a)
take all measures on their land that are
reasonably necessary to
prevent the occurrence of any damage to the national road concerned,
including any measures as prescribed
from time to time for that
purpose;
(b)
refrain from doing or permitting anything
on or below the surface of
that land which is likely to cause damage to that national road."
15.
Subsection (4) provides that the owner or occupier of land adjoining
a national
road will be liable for any damage to the national road if
same resulted from a breach of the provisions of subsection (3).
Subsection
(5) makes provision for a notice in writing by the
applicant to the owner or occupier of land to do certain things or to
refrain
from doing certain things in order to comply with the
provisions of the section. This includes, inter alia, a demand for
the removal,
filling in, alteration, relocation or establishment of
any dam, canal, trench, wall, sluice, pipe, excavation, structure or
other
works, or the cessation of such an act, on the land. Refusal
by the owner oroccupier of land to comply with such a notice
entitles
the applicant to approach the court in terms of subsection (6) for an
order to comply with the notice. The court may order
such a home
owner or occupier to take any other measure that the court considers
fit in the circumstances.
16.
Section 47 of the Act provides as follows:
"(1)
The Agency may divert storm-water from or under a national
road onto
any land but must pay compensation for any damage caused by the
diversion of this storm-water except in the circumstances
mentioned
in subsection (2).
(2)
Where a township is established on land adjoining a national
road,
the person establishing the township must receive and dispose of the
storm water discharge or diverted from the national
road, and
the Agency will not be liable for any damage caused in the township
by the storm-water."
17.
There is a dispute between the parties as to whether section 47 (2)
avails the applicant. It was submitted on behalf of the
respondents
that this subsection is applicable at the time when a township is
being developed and not many years thereafter, as
is the case in
casu. I tend to agree with this submission but it is not necessary to
resolve this dispute in these proceedings.
However, on the assumption
that these provisions are applicable, it is necessary to remember
that such statutory immunity shall
only be available if it is shown,
firstly, that reasonably practicable measures had been decided upon
before the carrying out of
the necessary works, and, secondly, that
the work had been executed without negligence. See
Johannesburg
City Council v
Electrical Distributors
Pty Ltd and Another
1977(1)
SA
157 (A) at 165F
G.
There is a dispute between the parties about this very issue.
18.
What then, are the potential consequences if the relief in prayer 1
and 2 is granted? Adv Maleka initially submitted that if
the relief
were to be granted, no rights of the individual homeowners would be
effected. In fact, so it was submitted, the home
owners association
was the correct entity to cite as the representative of the
individual homeowners. In this regard he, inter
alia, referred to
paragraphs 2.1.3 A (ii) and (iii) of the conditions of establishment
of the township as promulgated in the Provincial
Gazette of 4 August
2006. These paragraphs envisage that the homeowners association shall
be responsible for the "upkeep and
security of the township"
and that the individual owners are, through their membership of the
homeowners association, ultimately
liable for such upkeep and
security.
19.
Adv Maleka submitted, firstly, that the boundary wall is a security
wall and is thus something which falls within the province
of the
homeowners association. Secondly, it was submitted that holes could
merely be drilled through this wall to receive the water
into the
township in order to resolve the present problem with the
storm-water.
20.
These submissions do not seem to be correct. Firstly, a homeowners
association acts in a governing capacity and generally takes
care of
issues such as, for example, upkeep or maintenance and security. On
the evidence before this court the matter is much more
involved and
does not relate to maintenance and security at all. The fact that the
wall might assist with the security of the inhabitants
of the
township or might from time to time require some maintenance, does
not bring the issues currently in dispute within the
range of
activities or responsibilities of the home owners associations either
in their own capacity or on behalf of the individual
owners.
According to the expert evidence presented on behalf of the
respondents by Mr Kriel, holes in the wall may have been relevant
in
the era prior to the construction of the N1-
27
national road and the service roads but would not assist one iota to
resolve the storm-water problem which had arisen since the
construction of these roads. According to him and the other evidence
presented by the respondents, major structural work would
be
necessary to convey the water through the township in different areas
and would in all probability result in the demolition
of houses and
other structures already built by individual owners on their
properties. It would similarly affect the owners of
properties which
have not yet built their houses or other structures. Even Mr
Boonstra, who presented expert evidence on behalf
of the applicant,
envisaged four "corridors" through which the stormwater
must be conveyed through and over the township.
21.
From the affidavits before this court it is not known where exactly
these corridors would have to be situated nor whether canals
or other
types of structures would be required. What seems to be common cause
is that the water would eventually have to be emitted
from the
township at what was referred to as point "E" on the
relevant maps which is a point more or less in the middle
of the
boundary wall abutting the R81 national road. At that point there is
a culvert underneath the R81 to lead the water away.
On this premise,
and having regard to the maps of the township and the suggested
-10-
slope
of the land, it is clear that a large portion, consisting of many
individual properties, many of which had already been built-up,
would
be affected if the storm-water is to be received by the township in
bulk and in a concentrated form.
22.
Furthermore, having regard to the aforesaid obligation of all the
individual owners for the upkeep and maintenance of everything
inside
the township, the upkeep and maintenance of whatever is constructed
inside the township in order to convey the storm-water,
would also be
for the account of those owners whose properties are not directly
affected by the route the water has to follow through
the township.
23.
Adv Maleka indicated during his argument that a proviso may be added
to the relief presently claimed by the applicant to the
effect that
the order does not affect the houses of the individual property
owners other than the first and second respondents
as owners. Such a
proviso is not feasible for the simple reason, as I have indicated,
that on the evidence presently before this
court, so-called corridors
through the township from the points where the culverts under the
N1-27 emit the water to point "E"
on the other side of the
township, would most certainly have to cross the properties of many
of the individual owners. It is necessary
to stress that the present
application was not directed, as it probably should have, at
answering the question as to what should
be done with the water,
where it should be done and how it should be done. All that this
court is asked to do is to declare that
the respondents should
"constructed the necessary drainage system to allow acceptance
of stormwater from the road reserve
into the township". Such an
order would
-11-
clearly
detrimentally affect the proprietary rights of many, if not all of
the individual owners of the erven inside the township.
24.
Although prayer 3 merely asks for an order directing the first and
second respondents alternatively the first, second and third
respondents to comply with the conditions imposed by the applicant in
the various approvals relating to the establishment of the
township
and certain areas inside the township, the substance of such an order
would be exactly the same as an order in terms of
prayer 1. The
condition referred to is probably a reference to the document
containing the final detailed drawings relating to
storm-water which
the first applicant had to submit to the applicant at the initial
stage of the development. However, it is clear
that the applicant
would, once such document is submitted to it, require exactly the
same, if not more, than is presently prayed
for in prayer 1. In
substance prayer 3 is a mirror image of prayer 1.
25.
An analysis of the relief claimed for in prayer 4 provides another
reason why the individual owners of the township should have
been
joined as necessary parties to these proceedings. In that prayer an
order is asked "interdicting the fourth respondent
from
approving the construction of any dwelling within the township until
the design of the drainage system allowing acceptance
of storm-water
has been approved by the applicant and the drainage system has been
constructed." This means that the municipality,
the fourth
respondent, may not approve the construction of any dwelling on
individually owned erven until the water works conveying
water
through the township had been constructed to the satisfaction of the
applicant. Such an order would
-12-
clearly
prejudicially affect the proprietary rights of individual owners. As
such they have an interest in the outcome of these
proceedings and
should have been joined as parties thereto.
26.
The effect of the orders envisaged in prayers 1, 3 and 4 clearly
affects much more than anything that may be done to the boundary
wall. In fact, the state of the boundary wall fades into
insignificance in the presence of the major waterworks that have to
be
constructed inside the township as envisaged by the evidence
before this court. The homeowners associations are not in a position
to represent the individual homeowners in respect of issues affecting
their proprietary rights.
27.
Having found that the relief claimed in the present proceedings
would, if granted, detrimentally affect the proprietary and
other
rights of the individual owners of the township and that they should
therefore have been joined as parties to the present
proceedings I
must decide the issue of costs relating to the present proceedings.
In that regard both parties concurred that costs
should follow the
event and that costs of two counsel should be awarded. I am in
agreement with these submissions.
28.
In the result the following order is made:
1. The
point in limine is upheld with costs which costs shall include the
costs
of two counsel.
2.
The application is postponed sine die.
-13-
C.P.
RABIE
JUDGE
OF THE HIGH COURT