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
>>
2014
>>
[2014] ZAGPPHC 34
|
|
Kerfkhof and Another v Pieterse (55641/12) [2014] ZAGPPHC 34 (19 February 2014)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: 55641/12
DATE:
19 FEBRUARY 2014
NOT
REPORTABLE
In the matter
between:
FERDINAND
LEONARDUS KERFKHOF
................................
1ST
APPELLANT
TINEKE JO-ANNE
KERKHOF
.................................................
2ND
APPELLANT
And
NICOLAAS BARNARD
PIETERSE
.............................................
RESPONDENT
JUDGMENT
MOGOTSI AJ
INTRODUCTION
[I] The applicants
seek an order compelling the respondent to remove a carport which
allegedly encroaches upon the applicant's property.
The applicant's
and the respondent are neighbours. Applicant's maintains that the
encroachment infringes his right of ownership.
BACKGROUND
[2] The first
applicant is married to the second applicant in-community of property
and he acts on her behalf. They are co-owners
of Portion 1 of Lot
6....., R......... Township better known as 9........, 2...........th
Avenue, R......., Gauteng Province
[3] The respondent
resides in the neighbouring property which is Partron 1 of Lot
6......., R........ T........., Gauteng which
is also held under a
sectional title scheme.
[4] The applicant's
allege that the respondent has erected a carport which is encroaching
in their property. The applicant maintains
that they have never given
permission for such encroachment by the respondent, further that the
structure is capable of being taken
down should the Court so order.
The applicant’s inter alia rely on their land surveyor's
opinion in support of their claim.
[5] The respondent's
contention is that applicants are vexatious in coming up with this
application as the car port was attached
to the applicant's outer
wall long before 1994
i.e. before the
applicants could move in there. The first applicant wlio is involved
in construction business should have been aware
of the encroachment
in 1997 or alternatively should have been aware of building
regulations. Should the court find that there is
an encroachment it
should be found that applicants knowingly allowed such encroachment
to happen as he did not protest within a
period of one year and one
day after becoming aware of such encroachment. The respondents
furthermore contends that should the
court find that there is such
encroachment, equally the respondents should be ordered to remove
their carport.
[6] The respondent
also raised several factors as "points in limine“ and
argue that various “factual and real disputes
between the
parties make this application incapable of being adjudicated on
papers. He prays that the application be either dismissed
with costs
or be referred for oral evidence or trial.
[7] The first
applicant's view is that there is firstly no valid defence raised and
secondly the raised points in limine are in
any event the merits of
this application and they cannot be argued separately.
[8] Coming to the
points in limine
8.1 The first and
second points in limine are about locus standi and non-joinder.
[9] The respondent
admitted that he had erected a carport during 1994 by affixing it to
the outer wall of the applicants' garage.
Two sectional title deeds
wrere registered under title deed number T77316/94 and T77317/94 in
terms of Sectional Title Act 95 of
1986. Rietfontein Beleggings is
the owrner of certain portions of common areas in respect of the two
mentioned Title Deeds. The
respondent is the only member of the
Sectional Title Scheme Rietfontein Beleggings.
[10] Respondent
argues that the encroachment complained of form part of the common
area belonging to Rietfontein Beleggings and
not the respondent in
his personal capacity therefore applicant should have instituted
action against Rietfontein Beleggings which
is a separate legal
entity alternatively Rietfontein Beleggings should have been joined
as a party as it has substantial and direct
interest in this matter.
[11] It is also
according to the raspondend, clear from the papers filed that there
is genuine dispute of fact:between the parties
regarding the issue of
ownership of this particular portion where the encroachment occurs
alternatively applicants should have
issued summons.
[ 12] The Third
Point in limine relates to prescription.
[13] The respondent
contents that the Farm Rietfontein was divided into different
portions in 1993, 1994-1999. As a result of which
a fence was erected
separating applicant’s property and property belonging to
Rietfontein Beleggings. The original plan and
garage was amended in
1955. The respondent had for many years used the portion in dispute
as a parking space and had also paved
the area when he erected the
said car port.
[14] The respondent
and his predecessors in title have therefore owned and exercised
undisturbed possession of this portion for
a period of more than 30
years in terms of
Section 1(c)
of the
Prescription Act 68 of 1969
.
The applicants claim has therefore prescribed.
[15] The Fourth
Point - Factual dispute.
[16] Ownership of
the portion of the property where that carport is erected is in
dispute. Applicants content that the area belongs
to them while the
respondent contents that the portion belongs to Rietfontein
Beleggings who w'as not joined in. The respondent
further alleges that
it is the applicants who are encroaching onto the property of
Rietfontein Beleggings (see Annexure “NBP17”)
[17] There, are also
two conflicting versions of how each party's quantity surveyor
depicted the encroachment.
[18] I reserved my
ruling on the points in limine and directed the two Counsels to
proceed and address the Court on the merits of
the application fully.
[19] I now turn to
the merits of this application.
[20] In the absence
of a servitude an owner may only built on his or her owrn ground. As
a land owner, one is entitled to enjoy
use, consume, convert, either
destroy or sell his or her property and what the land produces in any
way which is within the limits
of state and local authority
regulations provided that such and owner of the ground does not
interfere with the legal right(s)
of others, including a neighbour
who may equally have such rights.
[21] There has been
accusations and counter accusations about ownership and or usage of
the portion in dispute even before the matter
could be brought to
court. The parties also exchanged documents and allege verbal abuse
in the process of grappling with the situation.
[22] 1 will deal
with issues raised in point in limine as w;ell as the merits of this
application because the tw:o are intertwined.
[23] The question of
non-joinder does not necessary depend upon the nature of the subject
matter of the suit, but rather upon the
manner in which, and the
extent to which, the courts order may affect the interest of the
third party. The test being whether or
not a party has a direct and
substantial interest in the subject matter of the action, that is a
legal interest in the subject
matter of the litigation which may be
affected prejudicially by the judgment of the court.
See: Morgan v
Salisbury Municipality
1935 AD 167.
Burger v Rand Water
Board 2007(1) AM 30 (SCA) at 33A-B,
Sikutshwa v MEC for
Social Development Eastern Cape 2009(3) 514 47 (TKHC) at 561-57 A.
[24] The non-joinder
of a party wrould ordinarily constitute an irregular proceeding and
the issue may have to be raised by way
of the procedure provided in
Rule 30.
However, this matter is different in that the respondent
admits having erected the carport. I will come back to this issue.
Regarding
Prescription
[25] The respondent
does not categorically state that he possessed the disputed portion
openly and as if he is the owner thereof
for an uninterrupted period
of 30 years or for such a period which together with any periods for
which such thing was so possessed
by his predecessors in title
constitutes an uninterrupted period of 30 years, Section 1 of the
Prescription Act 68 of 1969 (as
amended). There is no counter claim
filed and or affidavits from previous owners about what the actual
position has been all along.
Factual dispute
[26] In the light of
what the respondent is inter alia saying that “The space
between the border and the garage wall is only
approximately 700mm
and cannot be utilised productively'. “The applicants have
failed to indicate how they are being prejudiced
by this so called
encroachment and how they will benefit if an order is granted for the
removal of the send carport structurethere
appears to be no genuine
dispute and I said I will come back to this issue. The reality is
only that the respondent feels that
he may use the disputed portion
as it will not benefit the applicant. I find difficulty in accepting
this line of argument and
it does not show a factual dispute or pose
a difficulty in deciding the issue on the papers. The applicant does
not have to show
how the disputed portion will benefit him.
[27] It is worth
noting that the City of Tshwane Municipality issued a certificate in
terms of Section 14(1) (a) of the National
Building Regulations
Standards Act 103 of 1977 as revised confirming that the applicants
building comply with the relevant provisions.
[28] In addition to
that, it is not true that the evidence of Mr CJ Raal is hearsay as Mr
Raal has filed a confirmatory affidavit
which is not vague and
general.
See: SA Football
Association v Mangope (2013) 341LJ 311 (LAC)
[29] Even if it can
be argued that there is a dispute the issue will be whether such a
dispute of fact is real or not.(Room Hire
Co (Pty) Ltd v Jeppe Street
Mansions (Pty) Ltd 1949(3) SA 1155 (T). The respondent does not deny
that he is the one who erected
the extension or carport attached to
applicants building. The respondent could not satisfy the Court that
prescription is applicable
and that he has proved the requirements
laid down in the
Prescription Act
[30
] In Nightman t/a
JW Construction v Head Four (Pty) ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at par 13 the Court said “A real, genuine and bona fide
dispute of fact exist only where the Court is satisfied that
the
party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed’'.
The Court went on
further to say bare denials are not acceptable where the facts
disposed to lie purely in the knowledge of the
litigant, reality
should not be distorted.
See also Naidoo and
Another v Sunker and Another (SCA) (unreported Case No 126/111 29
November 2011)
[31] Only real,
genuine or bona fide disputes of fact will be entertained by the
Court before a decision is made to dismiss an application,
refer it
to trial or for oral evidence on a limited issue.
[32] A litigant wrho
argues that disputes of fact W'ere reasonably foreseeable must set
out clearly those disputed facts in his
answering affidavit which
must set out the basis on wiiich it is alleged that the disputes
wrere reasonably foreseeable.
[33] In the result I
make the following order:
Order
1. The four (4)
points in limine raised by the respondent have no merit and they are
dismissed.
2. The respondent is
ordered to remove the encroachment erected upon the applicant’s
property within twenty one (21) days
after the granting of this order
and to make good the land on which the encroachment was erected.
3. In the event of
respondent failing to comply with par. 2 hereof the applicant is
hereby authorised and directed to remove the
encroachment on the
respondent’s behalf and if needs be with the assistance of the
relevant sheriff.
4. Respondent is
ordered to pay applicant’s costs on party and party scale.
D.D. MOGOTSI
Acting Judge of
the High Court, Pretoria: