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[2013] ZAGPPHC 526
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Van Der Burgh v Eskom Holdings Soc Limited (64002/2012) [2013] ZAGPPHC 526 (11 October 2013)
REPUBLIC
OF SOUTH AFRICA
NORTH GAUTENG
HIGH COURT, PRETORIA
CASE
NO: 64002/2012
DATE:
11 OCTOBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
VAN
DER BURGH,
WAYNE
....................................................................................................
Applicant
and
ESKOM
HOLDINGS SOC
LIMITED
................................................................................
Respondent
J U D G M E N T
KATHREE-SETILOANE,
J
:
[1]
The Applicant, Mr Wayne van der Burgh (“the
Applicant”) is the registered owner of certain farm land,
Portion 475 of
the farm Witpoort No 406 registration division JR,
Gauteng Province. The Respondent is Eskom
Holdings
SOC Limited (“Eskom”)
an
electricity supply corporation. It has a servitude, Deed of Servitude
No. 532/1958, over the Applicant’s property. The
servitude
allows it to convey electricity across the Applicant’s property
by means of wires and/or cables or other
appliances, underground or
overhead along the line of route described in the Deed of Servitude
and also to erect, use, maintain
all poles, towers, and all other
appliances necessary or incidental to the conveyance of electricity.
[2]
In related proceedings Eskom admitted that it erected two H-pole
structures
(pylons and lines used for the
transmission of electricity)
outside the
ambit of the servitude area. In light of these admission, the
Applicant now approaches this Court for an order declaring
that the
H-pole structures, which have been erected on his property by Eskom
“fall outside of the ambit of the relevant servitude”
on
his property, and directing the respondent to remove the H-Pole
structures and the lines connected thereto within 14 days from
date
of the order. The Applicant also seeks an order declaring that Eskom
is in contempt, alternatively in breach of a court order,
which
was made by this court on 2 May 2012, under case number 22939/12, by
agreement between the parties. At the hearing of the
matter, the
Applicant abandoned the relief sought in relation to Eskom’s
contempt of the court order, but it persists with
the relief sought
relating to Eskom’s breach of the court order.
Background
facts
[3]
The events giving rise to this application are essentially common
cause between the parties. They are that the Applicant, together
with
11 other owners of immovable property situated in the Blue Hills
Estate and Beaulieu area, launched an urgent review application
before this court under case number 22939/12 on 24 April 2012 (“the
review application”). In the review application,
the Applicant
seeks interdictory relief
inter alia
restraining Eskom from taking any further steps to complete the
construction of the new Lulamisa-Crowthorne 88kv power line (“the
new power line”), pending a review of Eskom’s conduct in
commencing and implementing the construction of the new power
line.
[4]
The basis for the review application relates to Eskom’s conduct
in commencing and implementing construction of the new
power line.
The applicants in the review application allege
inter alia
that:
(a)
Eskom did so without the requisite statutory approval, authorisation
and consent of the City of Johannesburg and the MEC for
Agricultural
and Rural Development, Gauteng Provincial Government (alternatively
the Minister of Environmental Affairs);
(b)
pylons and power lines erected by Eskom on the applicants’
properties as part of the new power line were erected outside
the
ambit of the applicable servitudes; and
(c)
Eskom’s conduct constitutes unlawful, unreasonable and
procedurally unfair administrative action.
[5]
On 29 April 2012, Eskom filed a brief opposing affidavit in the
review application. Thereafter, on 2 May 2012, an order by agreement
(“the order”) was taken before Matojane J, which was to
serve as an interim agreement pending the conclusion of the
review
application. The order enabled Eskom to continue to implement the
construction of the new power line subject to certain
conditions. The
order reads in relevant part:
‘
1
[Eskom] may continue to install power lines to the rebuilt pylons
which it has erected on the properties to the Applicants forming
part
of [Eskom’s] project named Lulamisa-Crowthorne 88Kv Line
Rebuild, Project Number CN-STM-0906-1146-00001/wjs2ll1, subject
to
the following:
1.1
[Eskom]:
1.1.1…
1.1.4
Will at all times ensure that the pylons, cables, and all the
infrastructure which it installs and utilises for purposes of
the
operation and erection of the rebuilt line are within the ambit of
and strictly confined to the servitude area…
1.1.5
Agrees to the interim arrangement without prejudice to its contention
that the rebuilt line is presently between 80% and 90%
complete. . .
3
Pending the final determination of the relief sought in Part B of the
Notice of Motion, [Eskom] furthermore:
3.1
. . .
3.3
[Eskom] undertakes that it will not infer
from the Applicant’s agreement to the interim arrangement that
the Applicants regard
the stringing of the rebuilt lines or the
complete construction of the infrastructure as lawful;”
3.4
[Eskom] waves and abandons its right to argue in these or substituted
or related proceedings that the fact of the installation
of the
infrastructure and lines by it on the properties of the Applicants
(and/ or the costs which the [Respondent] has incurred
in installing
such works and/ or the inability to supply electricity as a
consequence of its removal in terms of the interim arrangement
is a
reason why this Honourable Court should not declare such
infrastructure and lines to be unlawful and/or order that such
infrastructure
should be removed.
.
. .’
[6]
On 10 September 2012, Eskom filed supplementary answering papers in
the review application. Significantly, in these supplementary
answering papers Eskom conceded that the H-pole infrastructure built
by it on the Applicant’s property was built outside
the ambit
of the servitude area applicable to the Applicant’s property,
and thus unlawful. Eskom alleges, however, that it
only became aware
of the fact that the offending infrastructure had been unlawfully
constructed during consultations with counsel
in the lead - up to the
filing of its supplementary answering papers on 10 September 2012.
The Applicant disputes this allegation.
Following the filing of
Eskom’s supplementary answering papers in the review
application the Applicant agreed to suspend
any litigation for a
period of negotiation to allow Eskom to remedy the illegality and
ensure compliance with the order.
[7]
The negotiations broke down and the Applicant demanded that Eskom
comply with the order, and remove the offending structures
from the
Applicant’s property to remedy the illegality. The Applicant
afforded Eskom a further period within which to propose
a timeline
for the removal of the offending infrastructure from his property,
failing which the Applicant advised Eskom that he
would launch the
present application. Eskom failed to comply with the Applicant’s
demand and, on 6 November 2012, the Applicant
launched the current
proceedings to compel Eskom to comply the court order.
Abuse
of court process
[8]
The first defence raised by Eskom is that the Applicant’s
attorney has sought to force Eskom into settling the matter,
and for
this reason the present application “constitutes an abuse of
process, irrespective of whether the Applicant is entitled
to the
relief sought”. Eskom alleges that the driving force behind the
current application is the Applicant’s present
attorney, Mr
Norton who, because he is the husband of the first applicant in the
review application, is conflicted and has been
unable to act in an
objective manner. In addition, Eskom alleges that both Mr Norton and
the Applicant have behaved unreasonably
and in an abusive manner
toward Eskom’s officials, by amongst other things, refusing to
consent to the erection of structures
in order to correct the
situation. Eskom goes so far as to argue that the
Applicant has engineered a situation where
it wants all the
structures removed, but resists replacement thereof, because the
Applicant does not want Eskom to rectify the
situation, but rather
wants Eskom to capitulate and settle on his terms.
[9]
I am of the view that these allegations are without any factual
basis. I find no evidence on the papers indicating that either
the
Applicant or Mr Norton have acted in an unreasonable or abusive
manner towards Eskom and its representatives. It is apparent,
in this regard, that even though Eskom had admitted that it had
erected the H-pole structures outside the servitude area on
Applicant’s
property, both the Applicant as well the other
applicants in the review application, agreed to attempt to resolve
the matter through
settlement negotiations with Eskom, in the hope
that Eskom would, pursuant to its constitutional responsibility,
remedy its conduct,
and remove the offending structures.
[10]
It was only once the settlement negotiations had broken down, did Mr
Norton, on behalf of the Applicant, demand the removal
of the
offending structures from the Applicant’s property by close of
business on 26 October 2012. When Eskom failed to comply
with this
demand, Mr Norton afforded Eskom a further opportunity to provide a
proposed time-line for the removal of the offending
structures from
the Applicant’s property. Needless to say, Eskom ignored this
request as well. It is clear, in my view, that
both Mr Norton and the
Applicant have acted reasonably in these proceedings and have
afforded Eskom repeated opportunities to rectify
its illegal conduct.
I accordingly find that this application does not constitute an abuse
of court process nor is it directed
at forcing Eskom to capitulate
and settle the dispute on the Applicant’s terms.
[11]
A further contention advanced on behalf of Eskom is that the
Applicant’s “real motive” for launching this
application is to force Eskom to install underground cables as
opposed to overhead structures. In support of this contention,
Eskom relies on an allegation made by the Applicant in his reply to
Eskom’s supplementary affidavit, in which it is alleged
that
Eskom has failed to put before the court other practical alternatives
to remedy the current illegality, including for example
placing the
cables underground (subject to obtaining the requisite approvals).
This allegation is made in the context of the Applicant’s
response to Eskom’s revised proposal, which the Applicant
contends remains flawed because it is still not predicated on
obtaining the requisite prior regulatory approvals, and his neighbour
is not prepared to consent thereto. Similar allegations are
made by
the applicants’ in the review application. I find it difficult
on the basis of a single allegation in the Applicant’s
reply to
Eskom’s supplementary affidavit, in the current application, to
conclude that the “real motive” behind
this application
is to force Eskom to install underground cables as opposed to
overhead structures. In any event, and even
if it were true
that the Applicant wants underground cables installed, it does not
assist the applicants in the review application
to have such cables
installed only on the Applicant’s property. The contention of
Eskom on this score is, therefore, manifestly
unfounded.
[12]
In so far as Eskom claims that it only became aware of the fact that
the offending infrastructure had been unlawfully built
on the
Applicant’s property when Eskom’s representatives
consulted with counsel prior to filing supplementary answering
papers
in the review application on 10 September 2012, it is clear from the
papers that Eskom was, in fact, made aware by the Applicant,
on 9
March 2012, that the offending infrastructure exceeded the servitude
area on the Applicant’s property. The Applicant
contacted
Eskom’s offices during early March 2012 to advise Eskom that
the offending infrastructure had been unlawfully erected.
On 9 March
2012, Ms Martie Heynecke (“Heynecke”), of Eskom’s
offices, telephoned the Applicant to discuss the
matter. It is
evident from the transcript of the recording of the Applicant’s
conversation with Heynecke, that the Applicant
specifically advised
Heynecke that the offending infrastructure exceeded the servitude
over his property, that Heynecke understood
this and arranged for
representatives of Eskom to go to the Applicant’s property for
purposes of verifying that the infrastructure
has been erected
unlawfully. I consider it necessary in this judgment to repeat the
relevant portions of the transcript of the
telephonic discussion
between the Applicant and Heynecke which read:
[Heynecke]: “So,
I think they said to me that you have a problem with the towers.
You’re not happy as to where the towers
are placed. Is that
correct?”
[Applicant]: “Yes”.
[Heynecke]: “okay.
And what are there? Are there any other problems from that?
[Applicant]: “With
one tower I’m pretty happy, but I’m not happy with the
way they’ve put the towers
next to each other and it’s
going to be spread over that servitude. I don’t believe that’s
right”.
[Heynecke]:
“So are you saying that we went out of our servitude area?”
[Applicant]: “Ja,
I’m saying that that thing is past the legal, whatever you −
the documentation that you guys
have”.
[Heynecke]: “No,
no but the thing is, there are 2 problems from what I can see: The
one is that you don’t agree with
the tower positions. The
second is that you think that we place towers outside of our
servitude area.”
[Applicant]: “No,
what I am saying: You’re going outside of your servitude area
according to the legal documents −
yes”.
[Heynecke]:”Okay,
so that’s why I’m saying to you Bruce will have to
address the towers. He’s the engineer.
I can’t do
anything about that.”
…
[Heynecke]: “Ja,
no. No I’m saying that I’m going to send him there with
the engineering surveyor.”
[Applicant]: “Okay
that’s fine.”
[Heynecke]: “Okay,
just what I need to ask as well. Will you provide us with all the
Eskom documentation − the deed
of servitude and everything, I
suppose?
[Applicant]: “Ja,
well you must remember: I’ve just bought this property.”
[Heynecke]: “Ja
so she never gave you the information.”
[Applicant]: “Oh,
she gave me the information. She gave me − she really had
it − she even agrees. She says
that they’re going outside
of that documentation. We spoke to Bruce and he kind of agreed at the
end of the day that that’s
it.”
[Heynecke]:
“He agreed? Yo,yo,yo. Okay, because if we did go out, that’s
huge issues.”
[13]
In the discussions that followed, the Applicant and Heynecke made
arrangements for Eskom representatives to visit the Applicant’s
property in order to verify that the offending infrastructure is
outside the ambit of the servitude. The Applicant contends that
it is
clear, therefore, that Eskom had been aware of the illegality since
March 2012, but had failed to take steps to remedy the
illegality,
despite having been advised of it, by the Applicant, at this time.
Eskom, however, denies in a supplementary affidavit,
filed on 13
February 2013, that it was aware of the illegality since March 2012.
It alleges, in this regard, that Mr Bruce Ntshuntsha
(“Ntshunsha”),
a senior electrical engineer on the project admitted that the
Applicant expressed the view that the
erection of the two H-pole
structures side-by-side would be outside the area of the servitude,
but that Ntshunsha did not agree
with the Applicant’s
understanding of the servitude, and made this clear to him. However,
it was only when consulting with
counsel that he “changed his
mind”. Whilst this may be so, neither Ntshunsha’s nor
Heynecke’s confirmatory
affidavits have been attested to and
commissioned, and their respective versions are, therefore, not
properly before the court.
In the circumstances, I am compelled to
the conclusion that Eskom was aware as far back as March 2012 that
the H-pole infrastructure
was erected outside the ambit of the
servitude.
[14]
The contention advanced by the Applicant is that even after 10
September 2012, when Eskom admitted that it had acted unlawfully,
it
failed to develop a workable and reasonable plan to relocate the
infrastructure so that it fell within the servitude. Inexplicably,
Eskom continued to resist the Applicant’s requests to be
provided with detailed design drawings that Eskom claimed were
the
basis of its proposal to remedy the illegality. On Eskom’s own
version it received a proposal from a third-party company,
Structatcom (Pty) Ltd (“Structatcom”), on 28 September
2012 to relocate the offending infrastructure, however, it waited
for
over a month until 31 October 2012 to appoint another third-party
company, Trans-Africa Projects (“Trans-Africa”),
to
prepare the design for the revised infrastructure. On 7
November 2012, this proposal was put to the Applicant’s
attorney. Inexplicably, however, the proposal failed to remedy the
illegality in that the proposed structured remained outside
of the
servitude area.
[15]
Eskom alleges that, on 11 November 2012, Trans-Africa reverted with a
revised design and provided Eskom with a revised proposal
for both a
temporary and permanent solution to remedy the illegality. In this
regard, Eskom states that Structacom prepared
“detailed
drawings” of the proposed new design on 13 November 2012.
Curiously, however, and without any explanation,
Eskom claims that
whilst Structacom has prepared these detailed drawings, Eskom had not
been provided with them and has instead
only been provided with a
“general arrangement”. These detailed drawings have not
been sent to the Applicant, nor have
they been placed before the
Court.
[16]
On 4 December 2012, approximately three weeks after the alleged
completion of the detailed design drawings, Eskom’s
representatives met with the Applicant’s legal representative
and provided “concept drawings” relating to the
proposal
to remedy the illegality. The concept drawings did not enable the
Applicant’s attorneys to assess whether, this
time, the
proposal did in fact cure the illegality. Eskom was advised that the
Applicant required detailed design drawings before
the Applicant
could agree to any proposal.
[17]
Notably, it was only when the Applicant launched this application
that Eskom crafted its proposal. This proposal has now been
supplemented by a revised proposal in terms of which Eskom’s
design engineers have altered one aspect of its original proposal,
relating to “body extension” to remedy the illegality.
Eskom’s revised proposal appears from Eskom’s
supplementary
affidavit dated 11 February 2013. The Applicant,
however, contends that both the original and the revised proposals
are fundamentally
flawed and unworkable, as Eskom has failed to get
the necessary environmental and regulatory approvals, an issue which
I will return
to later in the judgment.
Lis
alibi pendens
[18]
A further defence raised by Eskom is that the court is precluded from
hearing this application on the basis of the doctrine
of
lis
alibi pendens.
Eskom
contends, in this regard, that the relief sought by the Applicant in
these proceedings is “
identical
relief”
based
on an “
identical
cause of action”
in
the review proceedings, and on this basis the application should be
rejected. The requisite elements for the application of
lis
alibi pendens
are
well established. A party raising the defence must demonstrate that
the institution of further proceedings between the same
parties
related to the same cause of action.
[1]
If it is demonstrated by the party raising the defence that these
elements are met, the onus shifts to the party who instituted
the
proceedings to persuade the court to exercise its discretion to hear
the second matter on the basis that the balance of equity
and
convenience favour the adjudication of the second dispute.
[2]
A
plea of
lis
alibi pendens
is thus available to a defendant or respondent who can show that
there are pending proceedings
[3]
involving the same parties
[4]
based upon the same cause of action
[5]
and in respect of the same subject-matter (although the form of
relief need not be the same).
[6]
[19]
It is not in dispute that there is pending litigation involving the
same parties and regarding the same subject-matter. The
Applicant,
however, submits that the relief sought and the causes of action in
the current application are not identical to those
in the review
application. Eskom maintains, however, that the Applicant’s
contentions are unfounded because in his amended
notice of motion in
the review application, the Applicant seeks an order declaring that
the pylons and lines are not within the
ambit of the servitude, and
in the present proceedings the Applicant seeks the same order. Eskom
points out that although, in the
present application, the identical
assertion is made, the Applicant seeks to deflect this issue by
contending that the basis of
the present application relates to the
order agreed to between the parties (the contempt application), and
the Applicant’s
vindicatory property rights.
[20]
The Applicant argues that in order for Eskom to establish the defence
of
lis alibi pendens,
it
would have to demonstrate that the present application was concerned
with the lawfulness of the decision of Eskom to commence
and
implement of the new power line − matters in issue in the
review application. Eskom, however, contends that whilst the
lawfulness of the commencement and erection of the structures is
indeed in issue in the review application, there are additional
issues, in particular whether it has erected the structures outside
the servitude area, which have not been raised in those proceedings.
It argues that in respect to prayers 1 and 3 of the current
application, the Applicant’s cause of action is based upon his
ownership of the land, and that similarly the alternative
relief sought in prayers 6 and 7 of the amended notice of motion,
in
the review application, is also based upon the applicants’
ownership of the land. Eskom also argues that in both
cases the
Applicant contends in essence that he,
qua
owner, is not obliged to suffer Eskom’s structures on his land,
yet in law he can only claim that he is not allowed to suffer
the
presence of such structures outside of the servitual area. In
addition, Eskom contends that in respect of prayer 2 of the notice
of
motion in the present application, which is directed at finding Eskom
in breach of the court order, the applicants have raised
the same
argument i.e. that Eskom was in breach of the court order in the
review application. On this basis, Eskom submits that
the relief
sought in both cases is the same; the allegations made in support of
such relief in both cases are the same; and the
causes of action in
both cases are the same.
[21]
The Applicant contends that Eskom’s reliance on the defence of
lis pendens
is
entirely misplaced because the basis for the present application
related to: (a) the order agreed between the parties −
and it
is Eskom’s breach of this order that has given rise to the
present applicant; and (b) the Applicant’s right
to the
vindication of his property. I agree with the Applicant that in
order for Eskom to succeed in establishing the defence
of
lis
alibi pendens
, it would need to
establish that this court has been called upon, in this application,
to determine the lawfulness of the commencement
and implementation of
the new power line − matters in issue in the review
application. The question as to whether or not
Eskom has acted
unlawfully in erecting the infrastructure, on the Applicant’s
property, is not at issue in this application
- not least of all
because Eskom has admitted as much. The issue in this application is
rather Eskom’s purported conduct
in breaching the terms of the
court order, by failing to remove the unlawful infrastructure from
the Applicant’s property.
[22]
The relief sought in the present application arises from the Eskom’s
failure to comply with the order made by agreement
between the
parties. As is the case in the review application, the relief sought
in the current application does not concern the
decision of Eskom to
commence and implement the new power lines. In prayers 6 and 7,
respectively of the notice of motion in the
review application, the
applicants seek declaratory relief that the pylons and lines,
which have been erected by Eskom on
their properties, or which
traverse over their properties, are not within the ambit of
servitudes 344/1958 and 532/1955, and mandatory
relief that
Eskom be directed to remove from the applicants’ properties the
pylons, structures, foundations, cables, wiring
or any other
component pertaining to Eskom’s projects. Prayers 6 and 7 of
the notice of motion, in the review application,
are alternative
prayers to the relief sought in prayer 5 thereof, in terms of which
the applicants, in that application, seek a
declarator that the
servitudes in question are void for vagueness, on the basis that they
do not exactly prescribe the width of
the servitudes in relation to
the extent of the area, afforded to Eskom, for erecting pylons and
lines on or over the applicants’
properties. However, in the
current application the Applicant seeks declaratory relief that
the offending infrastructure,
which has been erected on his property,
falls outside the ambit of the relevant servitude 532/1955, and an
order directing Eskom
to remove the offending structures.
[23]
Eskom has admitted that the H-Pole structures have been erected
outside the ambit of servitude area. The admission is tantamount
to
the resolution of the dispute in relation to the question of whether
the infrastructure falls outside the ambit of the servitude
or not.
There is therefore no need for the court in the review application to
make a determination on the dispute. In the
circumstances,
there is no possibility of another court deciding this issue, and
arriving at a different decision from this court.
In addition, the
applicants in the review application seek to set aside the decision
of Eskom to commence and implement the project,
because it failed to
obtain the necessary environmental and town planning approvals from
the City of Johannesburg, none of which
are in issue in this
application. Accordingly, the court is not precluded by the doctrine
of
lis alibi pendens
from
hearing this application.
Interpretation
of the order
[24]
I
now turn to the primary dispute in this matter which concerns the
interpretation of the order of 2 May 2012.
The
basic principles applicable to the construction of all documents are
applicable to the interpretation of a court judgment or
order
[7]
.
In other words, the meaning has to be ascertained primarily from the
language of the judgment or order as construed accord according
to
the usual rules. If on a reading of the judgment or order, its
meaning is clear and unambiguous, no extrinsic facts or evidence
are
admissible to contradict, vary, qualify or supplement the order. But
if any uncertainty emerges, the extrinsic circumstances
leading up to
the court’s grant of the judgment or order may be investigated
and taken into account in order to clarify it.
[8]
Where the court order records a settlement agreement the principles
relating to the interpretation of contracts should also be
applied to
determine the meaning of the agreement.
[9]
[25]
The Applicant submits that by virtue of Eskom’s admission in
its answering affidavit, in the review application, that
it had
erected the H-pole structures outside the ambit of the servitude,
Eskom is in breach of the court order dated 2 May 2012.
Eskom,
however, maintains that notwithstanding the fact that its
infrastructure has been unlawfully erected on the Applicant’s
property, it is not in contempt, alternatively breach of the order
since the order only applies to its conduct after 2 May 2013.
The
Applicant, no doubt, argues that Eskom’s interpretation of the
order is unsustainable, and directed at evading the relief
sought by
it since, on a plain reading of the order, it is clear that
Eskom agreed that “at all times”
it would ensure that the
infrastructure on the Applicant’s property remains within the
ambit of the relevant servitude. In
addition, it argues that the
alternative construction contended for by Eskom is illogical, as it
would entail reaching the
absurd conclusion that Eskom was obliged to
act lawfully after 2 May 2012, but was not obliged to have done so
before this date.
The Applicant submits, in this regard, that the
plain reading of the order is entirely consistent with the background
facts, in
term of which the Applicant drew Eskom’s attention to
the breach of the servitude in March 2012, prior to the conclusion of
the order. The Applicant points out that it was for this very reason,
that it specifically included clause 1.1.4 into the order
which
provides that Eskom:
‘
will
at all times ensure that the pylons, cables and all the
infrastructure which it installs and utilises for purposes of the
operation and erection of the rebuilt line are within the ambit of
and strictly confined to the servitude area as set out in the
Notarial Deeds of Servitude which are applicable to each if the
Applicants’ properties, and that it complies strictly with
the
terms of such servitudes.’
[26]
The Applicant argues that Eskom’s contention that the order
applied to future conduct is entirely implausible given that
it is
common cause that the only work that had to be conducted on the
offending infrastructure, as at 2 May 2012, was the “stringing”
of power lines. No other pylons or power lines were contemplated on
the new power line construction. Therefore, he contends that
on any
reading of the court order, it is clear that Eskom breached the Court
order as Eskom concluded “stringing” the
power lines over
the Applicant’s property (to the offending infrastructure)
after 2 May 2012, thus perpetrating unlawful
conduct after the
conclusion of the order. Significantly, in this regard, the Applicant
points out that Eskom agreed, in terms
of the court order of 2 May
2012, to ensure that “the pylons, cables and all the
infrastructure which it “installs
and utilises” for the
purposes of the operation and erection of the rebuilt line are within
the ambit of and strictly confined
to the servitude area, and “that
it complies strictly with the terms of such servitudes”.
[27]
Eskom’s principal contention is that it has not acted in breach
of the order because the order only relates to
future
work on the new power line. In other
words, Eskom claims that although the infrastructure remains
unlawfully on the Applicant’s
property, it is only any work
conducted on this infrastructure after 2 May 2012 that is caught by
the order. Eskom finds support
for this interpretation in the words
“
[Eskom] may continue to install
power lines to the rebuilt pylons it has erected on the properties of
the Applicants” which
are recorded in the order, but recognises
that it could only do so “subject to” certain conditions.
Eskom points out,
in this regard, that it had already completed the
erection of pylons on the properties of the applicants, and that the
right of
Eskom to “continue” with the installation of the
power lines was recognised in the Court order, but made subject to
certain conditions, which applied to the pylons, cables or
infrastructure “which it installs”. It contends that the
use of the present continuous tense “installs” in the
court order is indicative of the fact that the event (the
installation)
will take place after the conclusion of the court
order, i.e. in the future. Thus, it was only in the future, i.e.
after it had
decided to continue with the installation, and then
proceeded to install, that it had to ensure that such installation
was “within
the ambit of, and strictly confined to the
servitude area”.
[28]
I agree with Eskom’s interpretation of the order. In my view,
the use of the adverb “subject to”, suggests
a
relationship between two clauses implying that what appears in the
first clause (that which is subject to) is subservient to
that which
appears in the second clause and means “
under
the condition that”.
What
this means is that the restrictions contained in paragraph 1.1.4
could only apply to the situation where Eskom exercised its
discretion or power by actually continuing to install power lines to
the rebuilt pylons; it could only apply to future conduct,
not past
conduct.
[29]
Significantly, prior to the court order, Eskom was entitled to erect
the structures by virtue of the servitude. If it erected
the
structures outside the servitude, the Applicant would have been
entitled to approach a court to have them removed. However,
prior to
2 May 2012 there was no court order, so its obligation not to erect
the structures outside the servitude could not have
stemmed from a
court order which did not exist. Thus, as contended for by Eskom,
whatever the source of its obligation not to erect
the structures
outside the servitude area might have been, it was not and could not
be the court order in question. Similarly,
in my view, the words “at
all times” in the order, cannot be interpreted to place an
obligation upon Eskom to do anything
prior to the coming into
existence of the court order. Thus once the court order was granted,
Eskom was obliged to act in accordance
with it, but that obligation
(to comply with the court order) stemmed from the order itself. Thus,
if any reliance at all is to
be placed on the Applicant’s
interpretation of the order, it would have to demonstrate that the
parties had agreed upon the
inclusion of some form of mandamus to
remove the structures or to remove what had already been done.
Without expressly including
such mandatory relief in the court order,
the court order cannot have retrospective application. The
interpretation advanced by
the Applicant is absurd and illogical, as
there is, after all, nothing in the order which compels Eskom to do
anything (i.e. there
is no mandamus) − it only restricts Eskom
from doing certain things where it chooses to continue with the
installation.
[30]
Paragraph 1.1.5 of the order records that the rebuilt line was
between 80% and 90% complete. The Applicant’s interpretation
of
the order as applying to both past and future work on the project,
will thus render this paragraph of the order meaningless.
It is clear
on reading paragraph 1.1.4 of the order, in the context of the whole
order itself, that the order governs future conduct
as it is not
formulated as a mandamus to compel the removal of work already done.
I am of the view that the order is clear and
unambiguous. There is
therefore no need to have regard to extrinsic evidence.
In
the premises, I find that Eskom is not in breach of the court order
of 2 May 2012.
[31]
Leaving aside the court order, however, Eskom has repeatedly admitted
that it has erected the H-pole structures outside the
ambit of the
width of the servitude. In view of Eskom’s admitted unlawful
erection of its H-pole structures, it has no right
to the continued
presence of these structures on the Applicant’s property that
fall outside the ambit of the servitude. The
Applicant is therefore
entitled, as owner, to have those structures that fall outside the
ambit of the servitude removed immediately.
There can be no
dispute in the present application that the requirements for
vindicatory relief have been established by
the Applicant: (a) he is
the owner of the property in question; (b) the property remains in
existence and is clearly identifiable;
and (c) Eskom remains
unlawfully on his property. It follows that the Applicant would be
entitled the relief sought in prayer 3
of the notice of motion
directing Eskom to remove the offending infrastructure and lines
connected thereto from the Applicant’s
property.
[32]
Although Eskom has repeatedly, on the papers, acknowledged that the
structures erected by it were constructed outside the
ambit of the
servitude, and that it is liable to remove them, it contended for the
first time at the hearing of the matter, that
it is difficult to
discern what portion of the infrastructure is within the ambit of the
width of the servitude, and what is outside.
The argument thus
advanced by Eskom is that the court should not grant the order sought
by the Applicant, in prayer 3 of the notice
of motion, for the
removal of the offending structures because it would amount to a
brutum fulmen
.
I find this submission to be most disingenuous as Eskom has
repeatedly admitted that the H-Pole structures fall outside the ambit
of the servitude. It begs the question: how was Eskom able to
ascertain this if the portion that falls within the ambit of
the
servitude is not discernable from that which falls outside?
Alleged
prejudice and Eskom’s proposal
[33]
Eskom seeks to persuade this Court to exercise its discretion in
favour of refusing to grant the Applicant the relief he seeks
on the
basis that consumers of electricity in the area may suffer prejudice
as a result thereof. The Applicant contends that there
is no basis
for this contention, as paragraph 3.4 of the court order makes clear
that Eskom has waived its right to raise such
an argument. Paragraph
3.4 of the court order reads:
‘
[Eskom]
waives and abandons its right to argue in these or substituted or
related proceedings that the fact that the installation
of the
infrastructure and lines by it on the properties of the Applicants
(and/or cost which [Eskom] has incurred in installing
such works
and/or the inability to supply electricity as a consequence
Honourable Court should not declare such infrastructure
and lines to
be unlawful and/or that such infrastructure and lines should be
removed.’
[34]
I agree with the contention advanced by the Applicant. Paragraph 3.4
of the court order is clear and unambiguous.
It
records Eskom’s waiver of its right to argue that the fact of
installation of the lines and the costs associated
therewith,
and the impact which its removal would have on its ability to supply
electricity should constitute a reason why this
Court cannot declare
such infrastructure and lines “
to
be unlawful”
and order its
removal. Eskom contends that paragraph 3.4 of the court order was
designed to ensure that it does not proceed with
the installation and
then later,
at the hearing of the review
application
, argue that the process had
already been completed or substantially advanced making it
impractical and undesirable for the Court
to order the removal of the
unlawful structures. It argues that this was foreshadowed in the
letter from the applicant’s
attorney, dated 27 April 2012
(Annexure E to the first respondent’s affidavit in the review
application) in which he stated
thus at paragraph 2.3.2:
‘
[I]f
the applicants succeed with Part B of the application
[i.e.
in respect of the review and setting aside of the decisions of the
respondent]
, no regard should be had to
the consequences of the interim arrangement for purposes of
determining appropriate final relief. It
is untenable for our clients
to agree to a compromise only to have the compromise used against
them in subsequent proceedings.’
(own emphasis)
[35]
Eskom accordingly submits that the purpose of paragraph 3.4 of the
court order is clear from the abovementioned passage, as
applying
only to the review proceedings, and as such has no application to
these proceedings. I am unable to agree with Eskom’s
submission, as t
he application of the
waiver clause in paragraph 3.4 of the court order is not limited to
the review proceedings. As is apparent
from the express inclusion of
the words “in these or substituted or related proceedings”,
the waiver clause has application
not only to the review proceedings
but also to “any substituted or related proceedings”. The
current proceedings are
“related proceedings”. Eskom is
accordingly disallowed from contending, in these proceedings, that
the removal of the
infrastructure and power lines installed by it on
the Applicant’s property, and the costs which it has incurred
in installing
such works and/or the inability to supply electricity
as a consequence of such removal, in terms of the interim
arrangement, is
a reason why the court should not declare such
infrastructure and lines to be unlawful and order that such
infrastructure should
be removed. The waiver clause 3.4 of the order
is clear and unambiguous, and the court considers it inappropriate in
the circumstances
have regard to extrinsic evidence.
[36]
In any event, I find Eskom’s claims regarding potential
prejudice to be at best speculative. The gist of Eskom’s
argument, in this regard, is that in the event of a fault occurring
on the Crowthorne-Lulamisa or Lulamise- Noordwyk lines, it
is able to
restore access to electricity “within no more than a few hours”
on the basis that the lines operate as back-ups
for each other, but
if no such back-up exists (which may occur if it is ordered that the
infrastructure is to be removed from the
Applicant’s property)
then it may take Eskom longer to rectify the fault, and consequently
consumers may face longer periods
without electricity.
[37]
It is not Eskom’s case that the removal of the offending
infrastructure would result in Eskom being unable to deliver
electricity to consumers. The prejudice contended for by Eskom is
that if this court orders the removal of the offending
infrastructure,
and in the event of a fault on the Crowthrone -
Lulamisa or Lulamise - Noordwyk line, it may take longer to restore
the electricity
than if the infrastructure was not relocated
immediately. Even if consumers may suffer prejudice in that they may
lose electricity
supply for a period whilst Eskom remedies a fault, I
am of the view that this cannot be a reason to deprive the Applicant
of the
relief he seeks, particularly where it was agreed to by the
parties, and which agreement was made an order of court that it will
not argue potential prejudice to others or itself, if it were
required by a court to remove the illegally erected structures. To
do
so, in my view, would be to countenance Eskom’s unlawful
conduct − which it has repeatedly admitted − and
prevent the Applicant from vindicating his property rights.
Eskom’s
proposal
[38]
The last defence raised by Eskom is that it has developed a proposal
to remedy the unlawful presence of its infrastructure
on the
Applicant’s property and, coupled with this, that the impact of
removing the infrastructure immediately may result
in prejudice to
other consumers of electricity in the area − rendering it
undesirable for the court to grant the Applicant
the relief which he
seeks. Eskom alleged in its answering affidavit that “
new
structures”
can only be installed
on the Applicant’s property at the end of October 2013 to
replace the offending infrastructure. However,
the Applicant contends
that Eskom’s proposal is fundamentally flawed and
therefore unviable for the following reasons:
(a)
Eskom is obliged to obtain regulatory
approvals for the proposal (such as, for example, environmental
authorisation, zoning approval
and building approval) - processes
that typically take many months; and
(b)
Eskom will require permission from the
Applicants neighbours who are unlikely to provide their consent given
that the proposed new
structures will be larger than the existing
structures situated on their respective properties.
[39]
Other than to allege that the dispute regarding “[its] alleged
failure to obtain any of the required regulatory and other
consents
required in order to construct the new power line, is present before
the court in the [review] application”,
Eskom does not
dispute that its proposals are flawed and thus unviable for failure
to obtain the requisite regulatory approvals.
This notwithstanding,
it alleges in its answering affidavit, which was filed on 6 December
2013 that it can only replace the illegal
structures by the end of
October 2013 , alternatively that the court give it four months to
install the new structures.
[40]
Having regard to the fact that Eskom has specifically failed to
dispute the flawed nature and unviability of its proposals
for
failure to obtain the requisite regulatory approvals, I am of the
view that the Applicant is entitled to the relief sought
in prayers 1
and 3 of its notice of motion in the current application. However, in
line with Eskom’s allegation in its answering
affidavit, that
it will only be in a position to replace the offending structures by
the end of October 2013, and to extent that
Eskom is indeed in a
position to do so, having obtained the requisite regulatory
approvals, I deem it fair and just to allow Eskom
a period of 30 days
from date of this order to remove the offending infrastructure and
install new infrastructure.
[41]
In the result, I make the following order:
(1)
It is declared that the “H pole” structures (“the
offending infrastructure”) and the power lines connected
thereto which have been erected on the Applicant’s property,
portion 475 of the farm Witpoort No.406, Registration Division
JR,
Province of Gauteng, in extent 2.7031 hectares and held by the
Applicant in terms of Deed of Transfer No. T25186/2012, by the
Respondent fall outside the ambit of the relevant servitude as set
out in the Deed of Servitude No. 532/1955.
(2)
The Respondent is ordered to remove the offending infrastructure and
the lines connected thereto from the Applicant’s
property
within thirty days of the order of this court.
(3) The Respondent
is ordered to pay the Applicant’s costs, which costs are to
include the costs consequent upon the employment
of two counsel.
_____________________________
F
KATHREE-SETILOANE
JUDGE
OF THE NORTH GAUTENG
HIGH
COURT, PRETORIA
Counsel
for the Applicant: RA Bhana SC assisted by M du Plessis, A Coutsoudis
and L Kelly
Instructed
by: Nortons Inc
Counsel
for the Respondent: FH Odendaal SC assisted by GI Hulley
Instructed
by: Cliff Dekker Hofmeyr Inc
Date
of Judgment: 11 October 2013
[1]
Osman
v Hector
133
CPD 503:
Painter
v Strauss
1951 3 SA 307
(O);
Mtshali
v Mtambo
1962 3 SA 469
(GW);
Williams
v Shub
1976 4 SA 567
(C);
Richetsveld
Community v Alexkor
Ltd
2001
4 ALL SA 563
LCC)
[2]
Loader
v Dursot Bros (Pty) Ltd
1964
2 SA 167
( O);
Friedrich
Kling GmbH v Continental Jewellery Manufacturers; Guthmann and
Wittenauer GmbH v Continental Jewellery Manufacturers
1993
3 SA 76
( C) 83;
Sikatele
v Sikatele
1996 1 All Sa 445
(Tk);
Ntshiqa
v Andreas Supermarket (Pty) Ltd
1997
1 SA 184
(Tk). For an example of factors taken into account in
the exercise of the discretion:
Van
As v Appollus
1993 (1) SA 606
( C) .
[3]
Van
As v Appollus
1993 (1) SA 606
(C )
[4]
Marx
and Kantor v Van Diggelen
1935
TPD 29
[5]
Nestle
(South Africa) (Pty) Ltd v Mars Inc
2001
(4) SA 542 (SCA)
[6]
Williams
v Shub
1976
(4) SA 567
(C )
[7]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at 603F- 604E
[8]
Firestone
SA (Pty) Limited v Genitiruco AG
1977
(4) SA 298 (A)
[9]
Engelbrecht
v Senwes Limited
2007
(3) SA 29
(SCA) at 32