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[2014] ZAFSHC 126
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Koen v Bubb and Another (1462/2014) [2014] ZAFSHC 126 (21 August 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
Number: 1462/2014
In
the matter of:-
LAURIKA
KOEN
….................................................................................................................
Applicant
and
KEALY
SAMANTHA BUBB
….......................................................................................
1
st
Respondent
PETER
JOHN BUBB
…..................................................................................................
2
nd
Respondent
HEARD
ON:
14 AUGUST 2014
DELIVERED
ON:
21 AUGUST 2014
MOLEMELA,
J
[1]
The applicant and the two respondents occupy adjoining residential
properties. The applicant has brought an application
for a
mandatory interdict enjoining the respondents to construct a drainage
channel on their erf, designed by a qualified engineer,
so as to
direct storm water from their erf to the street.
[2]
It is common cause that when the respondents purchased their
property, foundations for the extension of the house had already
been
laid by the previous owner and the respondents then went on to
complete the top structure in accordance with those foundations.
The
respondents at some stage learnt that the improvements they had made
on their property were not in accordance with the building
plans that
were approved by the municipality. It is not disputed that a part of
the respondents’ property extends beyond
the common boundary by
approximately 0.33m. The applicant bought her property soon after the
respondents had finished with the
extensions to their property. The
common boundary consists in part of a common pre-cast concrete wall
and in part a wall of the
applicant’s outbuilding.
[3]
It is furthermore not disputed that rainwater accumulates at the low
point of the respondents’ erf near the parties’
common
boundary wall. It is common cause that the applicant installed paving
as well as a drainage system in the respondents’
erf at her own
expense in order to dispose of this water. The system consists
of an inlet on the respondents’ erf connected
to a subterranean
pipe running across applicant’s erf to a discharge point in the
street.
[4]
The applicant averred in her founding affidavit that the respondents
have blocked the inlet and have planted vegetation around
it which
prevents water from entering the inlet, resulting in the system no
longer being able to dispose of storm water.
The upshot of all
this, according to applicant, is that water accumulates against the
outbuilding wall and the boundary wall, causing
flooding of the
applicant’s outbuilding and consequential damage to the wall.
According to the applicant, this state
of affairs is,
inter
alia,
due to the fact that the natural
flow of storm water from the respondents’ erf to the street was
cut off by improvements
made to the respondents’ house.
[5]
The respondents aver that the system that is currently in place is
effective and worked perfectly well even on an occasion when
the city
had experienced heavy rainfall. The respondents assert that they have
a video recording which shows how effectively the
storm-water is
dissipated through the current system. The respondents deny
that they have blocked the drainage inlet and
that they have failed
to keep the inlet free of debris. They also deny that water dams up
against the boundary and outbuilding
wall.
[6]
The respondents’ initial stance as set out in their papers was
that the matter be referred for oral evidence as there
were several
disputes of fact that could not be resolved on the papers, especially
considering that such issues could conclusively
be determined by
considering video evidence, which could only be presented via
viva
voce
evidence. They contended
that the video evidence would serve to refute the applicant’s
claims and prove the efficiency
of the drainage system that is in
place. They further contended that expert evidence, possibly coupled
with an inspection
in loco,
would
have to be adduced in order to decide the issue pertaining to the
natural flow of water in the area in which the parties reside.
[7]
Subsequent to the applicant’s argument on the merits, in which
the applicant unequivocally argued against a referral of
the matter
for the hearing of oral evidence, the respondents’ counsel
withdrew his initial proposition. The respondents’
counsel
submitted that since the applicant was not amenable to a referral of
the matter for oral evidence, the respondents’
application
ought to be dismissed. He pointed out that since none of the
two parties were in favour of a referral of the
matter for oral
evidence, the court ought not to make such a referral
mero
motu.
I will return later to this
aspect.
[8]
A consideration of the papers reveals that the applicant, in her
founding affidavit, largely based her claim on two assertions:
firstly, that the respondents were blocking the inlet with plants and
a plastic bag and, secondly, that the respondents failed
to keep the
inlet clear, resulting in the drainage system not allowing water to
go through. The essence of her claim was
that it was the
aforesaid conduct of the respondents that led to the system being
ineffective.
[9]
The respondents in their answering affidavit denied any wrongful
conduct on their part and placed reliance on video evidence
that
would conclusively refute the applicant’s claims. The applicant
in her replying affidavit then went on to raise an issue
that she had
not raised in the founding affidavit, averring that the draining pipe
was simply not capable of controlling the flow
of water. It
needs to be borne in mind that the pipe in question is the one
channelling water from all sources and not only
from the respondents’
property.
[10]
The respondents also vehemently denied that water dams up in their
property at the boundary of the applicant’s property
or that
the extensions had the effect of preventing rainwater from flowing
from their erf to the street. According to them, rainwater
from their
erf did not flow onto Champagne street even before the extension was
effected. They also dispute that the system that
is currently in
place is ineffective and aver that it works well and there is no need
for its replacement.
[11]
This matter turns on the determination of whether or not the existing
system operates adequately and effectively to convey
water from the
problem area to the discharge point. The issue that goes to the
heart of this application is whether the drainage
system that is
currently in place has proven ineffective due to the respondents
planting a tree and other plants in the area of
the weir and blocking
the inlet with a bag. This is an issue that cannot be determined on
the papers, given the disputes of fact
that have already been alluded
to. As stated before, none of the parties have requested that the
matter be referred for the hearing
of oral evidence. I am not
inclined to do so
mero motu.
I have taken into consideration that counsel for the applicant
alluded to unnecessary costs which this step may cause the
applicant
to incur. I have also taken into account that there are numerous
factual disputes in this matter. It is apposite to refer
to the
remarks made by the court in the case of
Joh-Air
(Pty) Ltd v Rudman
1980 (2) SA 420
(T) where it was stated as follows:
“
It
requires in my view a bold step by a presiding judge in an opposed
application to refer the matter to evidence or trial
mero
motu
, because it is a real possibility
that the applicant had decided not to ask for such procedure to be
followed because
he may not want to be
involved in the cost thereof
; his
prospects of success after studying the answering affidavits, may be
slender;
it may possibly lead to an
undesired protracted hearing
; the
amount involved may be small; the respondent may be a man of straw or
on account of any of the other usual considerations
in deciding
whether or not to apply for the provisions of Rule 6(5)(g) to be
invoked.” (My underlining for emphasis)
[12]
The applicant argued that the issues can be resolved on the basis of
the common cause facts notwithstanding the numerous factual
disputes
that have already been alluded to. He submitted that the issues could
be determined on the basis of the common cause facts
alone, as set
out in paragraph 1.1 to 1.8 of his heads of argument. I disagree with
this contention. As I see it, the high water
mark of these common
cause facts is the respondents’ acknowledgment that rainwater
collects at the low end of their erf near
the common pre-cast
boundary wall, which is an area corresponding more or less with the
problem area marked by the applicant.
[13]
I am of the view that the aforesaid common cause facts do not detract
from (i) the respondents’ denial that the roof
that
over-extends over the boundary increases the applicant’s
problem; (ii) the respondents’ denial of the allegation
that
the extensions to their property had the effect of preventing
rainwater from flowing from their erf onto the street; (iii)
the
respondents’ contention that the encroachment played no role in
the dissipation of water and was thus of little factual
consequence
to the present proceedings; (iv) and the respondents’ denial
that they do not keep the inlet free of debris or
that they block it
in any way.
[14]
Furthermore, the respondents disputed that the natural flow of
storm-water in the area in which the parties reside is from
a
north-western direction. The applicant sought to prove this aspect by
placing reliance on an affidavit deposed to by an expert,
Mr Tolken.
Mr Tolken’s expert opinion is that the measurements and the
survey of certain points confirmed that the natural
flow of
storm-water is indeed from north-westerly direction. He also
attached a plan which purported to show the natural
slope of the
respondents’ erf, which according to him served as proof of the
natural flow of storm-water. This opinion, however,
did not form part
of the applicant’s founding affidavit and instead formed part
of the replying affidavit, apparently to
refute the respondents’
express challenge of this aspect in their answering affidavit. It is
trite that in motion proceedings,
an applicant’s case must be
made in the founding affidavit, not in the replying affidavit. See
Swissborough Diamond v Government of
the Republic of South Africa and others
1999(2)
SA 279 at 323J – 324D. The contents of the expert’s
affidavit can unfortunately not be considered and thus do
not come to
the applicant’s assistance. The dispute about the natural
flow of water therefore remains. All the afore-said
factual disputes
are material to the determination of the application as they have a
bearing on whether there is a need for another
method of disposal of
rainwater to be put in place or whether the drainage system currently
in place is adequate as a result of
the respondents’ wrongful
conduct.
[15]
It is trite law that motion proceedings are about resolution of legal
disputes based on common cause facts and cannot ordinarily
be used to
resolve factual disputes because they are not designed to determine
probabilities. See
Plascon Evans Paints v van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
NDPP v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para 26.
Given
the materiality of the factual disputes that cannot be resolved on
the papers and the fact that the disputed facts were in
fact
foreseeable, considering the correspondence already exchanged between
the parties prior to the launching of the application,
I am satisfied
that the only appropriate order is one dismissing the application
with costs.
[16]
On the issue of the reserved costs pertaining to the postponement of
the matter on 12 June 2014, it is common cause that the
postponement
was at the instance of the respondents. No fault is attributable to
the applicant for enrolling the matter for 12
June 2014, as the
enrolment was in accordance with the rules. The respondents applied
for postponement so as to be afforded the
right to be legally
represented on the date of the hearing. The representative of their
choice was not available on 12 June 2014
and this rendered a
postponement inevitable. It is trite that a party applying for a
postponement seeks an indulgence from the
court. There is no reason
why the respondents should not be ordered to pay the wasted costs
occasioned by the postponement of the
matter on 12 June 2014.
[17]
WHEREFORE I make the following order:
1. The application
is dismissed with costs.
2. The respondents
are ordered to pay the applicant all the wasted costs occasioned by
the postponement of the matter on 12 June
2014.
_________________
M.B.
MOLEMELA, J
On
behalf of applicant: Mr J.J. Maree
Instructed
by:
Schoeman
Maree Inc
BLOEMFONTEIN
On
behalf of respondents: Mr E.J.B. Lingenfelder
Instructed
by:
EG
Cooper Majiedt
BLOEMFONTEIN