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2013
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[2013] ZAGPPHC 13
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Harlequin Duck Properties 259 (Pty) Ltd and Another v Cheg Trading 56 (Pty) Ltd and Others (47764/2011) [2013] ZAGPPHC 13 (1 February 2013)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
No: 47764/2011
DATE:01/02/2013
In
the matter between:
HARLEQUIN
DUCK PROPERTIES 259 (PTY) LTD
…......................................
1st
APPLICANT
ERIC
SCHOEMAN
…................................................................................................
2nd
APPLICANT
And
CHEG
TRADING 56 (PTY)
LTD
.............................................................................
1st
RESPONDENT
MR
S Y
KIM
...............................................................................................................
2nd
RESPONDENT
CAPIOSCENE
CC
….............................................................................................
3rd
RESPONDENT
FRANCOIS
HENNING
............................................................................................
4th
RESPONDENT
EMFULENI
GOLF ESTATE (PTY)
LTD
.................................................................
5th
RESPONDENT
GOLF
DATA
HOLDINGS
.........................................................................................
6th
RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
This is an application in which the applicants seek an order, pending
the outcome of the action instituted by them against the
respondents
in case number 47765/2011, interdicting the first, second, third and
fourth respondents from allowing anyone to play
golf on the 14th hole
of the Emfuleni Golf Course in Vanderbijl Park unless the green is
relocated to a position not closer than
forty metres from Erf 1511,
Vanderbijl Park South West 5, extension 6 Township (‘the erf’),
measured over the shortest
distance between the border of the erf and
the edge of the green. The applicants also seek an order in terms of
section 3(2)(c)
of the
Arbitration Act, 1965
that all disputes
between any parties to this application which the Court may find to
be subject to the arbitration clause contained
in the constitution of
the Emfuleni (Estate) Home Owners Association, shall not be referred
to arbitration but be adjudicated by
this Court. It is also sought
that the first, second, third and fourth respondents jointly and
severally pay the costs of the application.
For the sake of
convenience the second applicant will be referred to as Mr Schoeman.
He is effectively the mouthpiece of the first
applicant as the sole
director of the company.
[2]
The second respondent (Mr Kim) is the sole director and shareholder
of the first respondent. The fourth respondent is the manager
of the
third respondent and his wife is the only member of the fourth
respondent.
[3]
The applicants say that the fifth and sixth respondents are cited in
these proceedings only in so far as they may have an interest
in the
subject matter of the application but no relief is sought against
them.
[4]
The first applicant is the registered owner of the erf. There is a
residential property on the erf and Mr Schoeman and his wife
reside
there. The golf course is situated more or less in the middle of the
township and houses and common areas are situated around
the golf
course.
[5]
Mr Schoeman says that the living area of the house where he and his
wife reside fronts the golf course. There is a large patio
on the
outside with sliding doors giving access into the living room inside
the house. When the sliding doors are open, the living
room and the
patio become one living area where he and his wife spend most of
their time and entertain visitors. There is a swimming
pool next to
the patio. His grandchildren aged 12 and 15 years spend most of their
afternoons as well as weekends at his residence
- mainly in the
living room and patio.
[6]
The erf is situated close by the 14th hole of the golf course which
includes the tee from where the players play their first
shot, the
fairway along which they progress towards the green and the green
itself. The distance from the house and the closest
point on the edge
of the green on the 14th hole is more or less ten metres. This close
distance, says Schoeman, gives rise to a
highly unsatisfactory and
dangerous situation in that as players progress towards the green the
players play their shots towards
the house. Many players play their
shots too long with the result that the house and adjacent living
area are regularly hit by
fast travelling golf balls. Apart from
causing damage to property, these balls may cause serious injuries
and even death if a person
is hit by them. He says he and his wife
and visitors to their home, in particular their grandchildren, are in
constant danger.
[7]
Mr Schoeman alleges that before he took steps which "alleviated
the situation somewhat,” the house was hit by about
100 balls
per month. Some of the balls hit the patio, some of them hit the
stoep, others hit the outside of the house while some
of them went
right into the house where they damaged furniture or pictures, or
struck the floor and bounced up against the ceiling.
[8]
Mr Schoeman alleges further that at the time when he bought the erf
as a vacant stand, both the estate agent involved and a
director of
the fourth respondent, which was the developer of the township and
was also the owner of the golf course at the time,
had assured him
that the 14th green would be relocated to a safe distance from the
erf. Acting on the verbal assurances that he
was given he purchased
the erf and built the house on it. He and his wife moved into the
house in 2005 and towards the end of that
year he enquired from a Mr
Barkit of the fourth respondent why the 14th green was not yet
relocated and was assured that it would
still be done by the sixth
respondent. During 2006 he became aware that the fourth respondent
intended to sell the golf course
and ultimately the purchaser turned
out to be Mr Kim who housed it in the first respondent. The new
owners did not relocate the
14th hole.
[10]
In order to alleviate the dangerous situation on a temporary basis,
he went to see Mr Kim and suggested certain changes at
the 14th
green. The applicant does not state when he went to see Mr Kim. After
discussions with Mr Kim, Mr Schoeman replaced the
sand bunker with a
grass bunker and he built a pond between the green and his house. Mr
Kim consented to the second applicant’s
reconstruction of the
bunker and the construction of the pond on condition that Mr Schoeman
paid for the costs. Mr Schoeman says
that after the construction of
the grass bunker and the pond and use age of a white flag on the
green the problem was alleviated
somewhat but that ‘the house
was still regularly hit inside and outside by fast travelling golf
balls'.
[10]
Some four years later, during 2010, Mr Schoeman obtained a copy of a
report in respect of the golf course prepared by the sixth
respondent. That report, dated 24 May 2010 contained a suggestion
that the green of the 14th hole should be moved as a matter of
urgency. About three months later the first applicant’s
attorneys addressed a letter dated 6 September 2010 to the first
and
third respondents requesting an undertaking from them that they will
arrange for the closure of the existing green within 14
days of the
date of the letter failing which they will approach a court for the
necessary relief.
[11]
In April 2011 a safety net six metres in height and spanning the side
of the house that faced the 14th green was erected by
the fourth
respondent as a result of certain discussions between him and Mr
Schoeman. In an email dated 13 May 2011 addressed to
Mr Schoeman the
fourth respondent denied having made any agreement with Mr Schoeman
that the green will be moved. He said the only
person who could make
that decision was Mr Kim. He also pointed out that the sixth
respondent could merely make a suggestion but
it did not have the
final say.
[12]
The applicants’ attorneys filed an answering affidavit which,
according to the filing sheet attached to it, is that of
both the
applicants. However, nowhere in the answering affidavit does the name
of the deponent to the affidavit appear. However,
the applicants have
not taken issue with this in the replying affidavit nor was it raised
during argument. It therefore appears
to be not in dispute that the
deponent to the answering affidavit is Mr Kim who filed the affidavit
on behalf of both himself and
the first applicant. The affidavit had
been filed late and consequently an application for condonation was
made. The applicants
did not oppose the granting of condonation and
it was accordingly granted at the commencement of the hearing.
[13]
Mr Kim purchased all the shares in the first respondent from the
previous shareholder Mr Barkit. The sale of shares agreement
disclosed certain contracts and records an oral agreement between the
fourth respondent and a certain M J Van Staden which was
incorporated
into the sale of shares agreement. Significantly, the alleged verbal
assurance given to Mr Schoeman by Mr Barkit about
the relocation of
the 14th hole is not mentioned in the sale of shares agreement.
[14]
The first applicant and Mr Kim have raised two points. The first is
that the dispute between the applicants and themselves
should have
been referred to arbitration in terms of the Emfuleni Estate Home
Owners Association constitution. It is averred by
Mr Kim that the
first respondent trades as the Emfuleni Golf and Country Club.
However, clause 1.1.5 of the constitution states:
‘ “
club”
means the Emfuleni Golf and Country Club which is a separate legal
entity.’
[15]
Clause 8.2 of the constitution states that the club is a member of
the Association and subject to its constitution. Clause
36 of the
constitution provides that if there is any dispute, question or
difference which arises between members or between a
member and the
trustees, it shall be referred to arbitration except for any issue
that relates to any claim for non-payment of
levies or any other
amount due by a member to the Association in terms of the
constitution. Hence, say the respondents, the dispute
should have
been referred to arbitration.
[16]
In their replying affidavit the applicants deny that the first
respondent trades under the name and style of the Emfuleni Golf
and
Country Club. They aver that the club is an entity which has been in
existence for many years, since the time that the golf
course
belonged to Iscor. They say the club is a common law corporate body
with legal personality and perpetual succession and
as such is a
legal entity separate and distinct from the first respondent. Mr
Schoeman says further that the first respondent’s
assumption of
the club’s name is preposterous and without legal or factual
basis. The applicants attached a copy of a constitution
of an entity
called ‘Emfuleni Country Club’. Mr Kim says that the
first respondent trades under the name Emfuleni Golf
and Country
Club. As I said, the Emfuleni Estate Home Owners Association
constitution refers in the definitions section to the
‘club’
as the ‘Emfuleni Golf and Country Club which is a separate
legal entity’. The applicants state that
the reference to the
Emfuleni Country Club as the Emfuleni Golf and Country Club in the
Homeowners Association constitution is
merely a misnomer. However, in
the sale of shares agreement at paragraph 12.2 it is stated that ‘the
developer of the golf
course, has entered into a development
agreement with the Emfuleni Golf and Country Club’. The
applicants’ assertion
that it is merely a misnomer can
therefore not be accepted without further factual evidence in this
regard.
[17]
In my view, this aspect therefore needs to be referred for oral
evidence as the full facts in this regard will also have an
important
bearing on the point in limine regarding the referral of any dispute
to arbitration as well as whether the homeowners
association should
have been joined as a party. It is apparent, and in fact admitted by
Mr Schoeman that the first applicant is
a member of the homeowners
association.
[18]
I summarise then, the aspects that have to be referred to oral
evidence. The respondents have raised two points in limine and
rely
on the constitution of the Emfuleni Estate Home Owners Association.
The applicants rely on the Emfuleni Country Club constitution
and
deny that the constitution of the Emfuleni Estate Home Owners
Association is of any force or application. The applicants’
denial of material
allegations
made by the respondents in regard to the constitution of the Emfuleni
Estate Home Owners Association, is a material
dispute of fact. This
court cannot determine the correctness of either party’s
averments in respect of the two points in
limine. Therefore, the
issue concerning the application of the constitution of the Emfuleni
Estate Home Owners Association or the
Emfuleni Country Club
constitution to this matter should be referred to oral evidence.
I
make the following order:
1.
The issue concerning the application of the constitution of the
Emfuleni Estate Home Owners Association or the Emfuleni Country
Club
constitution in this matter is referred to oral evidence.
2.
Costs shall be costs in the cause.
N
RANCHOD
JUDGE
OF THE HIGH COURT
Parties:
Counsel
for the Applicants: Mr J J Botha
Attorney
for the Applicants: De Klerk Vermaak & Partners Inc,
Vanderbijlpark.
Counsel
for the Respondents: Mr Y F Saloojee Attorney for the Respondents:
Jassat Attorneys, Pretoria.