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[2013] ZAKZPHC 61
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Dyecomber (Pty) Ltd and Another v East Coast Papers CC (AR 469/12) [2013] ZAKZPHC 61 (7 November 2013)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARTZBURG
Case No. : AR 469/12
In the
matter between:
DYECOMBER
(PTY) LTD
..........................................................................
First
Appellant
COTTON
KING MANUFACTURERS
...................................................
Second
Appellant
(PTY)
LTD
and
EAST
COAST PAPERS CC
..........................................................................
Respondent
J U D G M E N T
___________________________________________________________________
KOEN
J
INTRODUCTION:
[1] This is an appeal against a judgment of Balton J which resulted
in the following order:
‘
1. The
encroaching structure should be removed.
2. The applicant is granted the
relief sought in paragraphs 1 to 3 of the Notice of Motion’.
[2] The First and Second Appellants were the First and Second
Respondents in the court
a quo
in an application in which the
Respondent, the Applicant in the court
a quo,
sought the
following relief
1
:
‘
1. (a)
That the First Respondent be and is hereby ordered to remove that
portion of the building erected on Lot 1188 Wentworth,
Registration
Division FT, situated in the Durban entity, Province of
KwaZulu-Natal, which encroaches onto Lot 1189 Wentworth, registration
division FT, situate in the Durban entity, Province of KwaZulu-Natal
(Erf 1189), including that portion which encroaches upon the
road
servitude over Erf 1189, created by Notarial Deed of Servitude
K1063/99;
(b) That in
the event that the First Respondent fails to comply with the
provisions of sub-paragraph (a) above within two weeks
of the
granting of this Order, the Sheriff being and is hereby directed to
remove the said encroachment.
2. That it be and is hereby
declared that the Applicant’s members, employees and invitees
are entitled to have access to those
portions of Lot 1182 Wentworth
and 1189 Wentworth, of registration division FT situate in the Durban
entity, Province of KwaZulu-Natal,
which are subject to the road
servitude created by a Notarial Deed of Servitude K1063/99.
3. (a) That the First Respondent
pay the costs of this application.
(b) Alternatively to
sub-paragraph (a) above, that the First and Second Respondents
jointly and severally pay the costs of this
application’.
[3] The Appellants opposed the application and launched a counter
application claiming the following relief:
‘
1.
that
the Third Respondent in the counter-application
2
be
joined;
2. that the Third Respondent in
the counter-application be authorised and directed to transfer that
portion of the immovable property
known as Erf 1189 Wentworth,
registration division FT situate in the Durban entity, Province of
KwaZulu-Natal which is covered
by the building predominantly erected
upon Erf 1188 Wentworth, registration division FT, situate in the
Durban entity, Province
of KwaZulu-Natal to the name of the
Applicant
3
from the name of the First
Respondent in the counter-application;
4
3. That the First Respondent in
the counter-application be ordered to pay the costs of this
application’
5
.
[4] An order was grantedsubsequently for ‘oral evidence’
to be heard on the following issues:
‘
(a)
Whether it is fair and reasonable that the applicant’s claim
against the first respondent in regard to the encroachment
forming
the subject matter f these proceedings should be limited to one of
compensation rather than the removal of the offending
structures;
(b) If so, what the amount of
compensation should be’.
It was the hearing of the oral evidence on these issueswhich came
before the court
a quo
.
[5] The matter proceeded on the basis that what the court
a quo
was required to do was exercise its discretion whether to direct
that the encroaching structure be removed, or to direct that the
Respondent be limited to a claim for compensation
6
with
the encroaching structure remaining
in situ
. If compensation
was ordered then the amount of the compensation also had to be
determined. After hearing the evidence, the court
a quo
concluded
that, in its discretion, it would be just and equitable that an order
be granted directing that the encroachment be removed.
BACKGROUND:
[6] Erven 1188 and 1189are contiguous. They were previously part of a
larger consolidated property
7
.
After subdivisionthe Respondent bought and took transfer of erf1189
into its name on 30 November 1999
8
.
Secula Investments (Pty) Ltd took transfer of erf1188 during March
1999
9
.
The Second Appellant occupied erf 1188 from approximately 1998. The
managing director of the Second Appellant at all material
times was a
Mr Bilro. During or about 2002 he caused a second level to be added
and the roof of the building on lot 1188 to be
raised. It is part of
these alterationswhich extends beyond the boundary of erf 1188 and
encroaches on to erf1189, which the court
a quo
described as
the ‘encroaching structure’ and which it directed should
be removed. On 4 February 2008 the First Appellant,
of which Mr Bilro
is also the managing director, took transfer of erf 1188
10
.
[7] A road servitude
11
runs along the boundary of erven 1182 and 1189 where they are
adjacent to erven 1183 and 1188.The white wall which appears on
photograph 20 in exhibit ‘B’ and a roller shutter door
appearing on photographs 3 and 4 of exhibit ‘B’ forming
part of the building on lot 1188, block thisservitude.
SECTION 4 OF THE NATIONAL BUILDING REGULATIONS AND BUILDING
STANDARDS ACT:
[8] Section4 (1) of the National Building Regulations and Building
Standards Act
12
(hereinafter referred to as ‘the Act’) provides:
‘
No
person shall without the prior approval in writing of the local
authority in question, erect any building in respect of which
plans
and specifications are to be drawn and submitted in terms of this
Act’.
THE EVIDENCE OF MR WATERS:
[9] Mr Sam Waters, a fire safety officer with the eTthekwini
Municipality within whose municipal area the properties are situated,
testified that his duties involve scrutinising plans and inspecting
building to ensure that the South African Bureau of Standards’Code
0400 is complied with. He is involved in the administrative process
when plans submitted in respect of theproposed construction
of and/or
alterationsto existing buildings are considered to determine whether
they should be approved.
[10] His uncontroverted evidence was that if plans for the building
alterations in respect of the building on erf 1188, part of
which
constitutesthe encroachment on erf 1189, had been submitted, they
would not have been approved by the municipality. Due to
part of the
structure also abutting the boundary wall,the owner of erf 1189 would
be prohibited from building on their boundary.
[11] He testified that a building line restriction,prescribing how
far buildings need to be apart,must be maintained between buildings.
This distance is determined by the area of the openings,resulting
from for example windows, in the boundary wall. If the total
aperture
area on the boundary wall of a structure is say 5 square metres, then
the building line from that wall to any other building
proposed to be
builtand required to be kept clear, would be two metres. The maximum
distance for which allowance must be made,
is 9 metres if the
aperture was 500 square metres. The minimum, for anything less than a
5 square metre aperture area, wouldbe1.5metres
[12] It is not disputed that no plans had been approved in respect of
that part of the building which encroaches on to the respondent’s
property.Accordingly, the encroachment constitutes an illegal
structure.
13
[13] The significance of Mr Waters’ evidence further is that if
compensation is an appropriate alternative remedy, the compensation
could not just simply relate to the 31.6 square metres
14
‘covered
by the building’as referred to in paragraph 2 of the
counter-application. That isbecause the Respondent would
lose not
only the area covered by the building, but also the area comprised of
the building line restriction on its property which
the Respondent
would not be able to use. At best for the Appellants this restrictive
area surrounding the encroachment would be
at least 1.5 metres wide,
but it could be more, depending on the aperture area
15
in the wall facing the boundary.The Appellants’ counsel also
recognized that the compensation would have to go beyond just
the
area of the footprint of the encroachment, in stating in his opening
address that:
‘
The
respondents’ case is that in the spirit of fairness and equity,
and the fact that those were pre-existing structures,
they should
not, that at the very least – or rather at the very most if the
encroachment in any way hampers those plans for
the development –
the applicant’s papers indicate that certain aspects of the
plans, the architectural plans and the
construction, would have to be
modified – it would be fair and equitable at the very most that
the respondents be ordered
to compensate to (sic) the expenses
incurred in those modifications’.
NON JOINDER:
[14] The relief claimed by the Appellants for an order directing the
payment of compensation would necessarilyentail thatthe structure
giving rise to the encroachment be allowed to remain intact and
would, in effect, foist upon the municipality an illegal structure
which would have received the imprimatur of this court by it being
allowed to remain.
[15] Such an order would therefore directly affect the rights of the
eThekwini municipality.
16
It has a direct and substantial interest
17
in any relief which would allow the illegal structure to remain.It
should have been joined by the Appellants in pursuing the relief
claimed in their counter application. It is however not a party to
the present litigation.
[16] The non-joinder
18
of the eThekwini municipality in relation to the relief claimed in
the counter-application, as amplified in the referral to oral
evidence,is fatal.
[17] The question arising is what has to happen in the light of such
non joinder. The parties seemingly desired the case to proceed
in the
absence of the eThekwini municipality. That would render the
Appellants’ counter application fatally defective and
would
leave only the Respondent’s application for demolition. That
desire cannot however relieve this court from inquiring
whether the
order it is asked to make may affect the municipality,
19
which it clearly would if the relief claimed by the Appellants was to
be granted. A court of appeal may decline to hear a matter
until any
necessary joinder has been effected or the party sought to be joined
has waived its right to be joined.
20
[18] In the ordinary course, and if the Appellants had reasonable
prospects of success in this appeal I would have given consideration
to such a course of action. On the facts of this appeal, I am however
not disposed to do so, as I am of the view that even if the
municipality had been joined, being an illegal structure in respect
of which there are no plans, there was no discretion for a
court to
exercise. The only legal remedy was one for the removal of the
encroachment. However, even if I was wrong in that conclusion,
the
Appellants failed to demonstrate that the court
a quo
had not
exercised its discretion, to the extent that it had a discretion,
properly, and further, and in any event, insofar as the
court a quo
had a discretion which it could exercise in favour of compensation,
the Appellants failed to discharge the onus of
proving the quantum of
compensation which should be paid.
THE PRINCIPLE OF LEGALITY:
[19] The part of the building for which there are no plans,
encroaching on erf 1189, is an illegal structure.
[20] In
Lester v Ndlambe Municipality and Another
21
,
the Supreme Court of Appeal held with reference to the provisions of
s4 of the Act and in the context of whether a court has a
discretion
whether or not to order demolition of a building structure which has
no approved plans, that ‘(t)he conclusion
that the statutory
provision itself does not lend itself to such a discretion is
unassailable’.
[21] Based on that conclusion, the court
a quo
would, on the
basis of the legality principle, haveno discretion to permit the
encroachment to remain. As the court
a quo
would have had no
discretion, the order forthe removal of the encroachment was the only
order it could validly grant. The order
granted was thus correct,
albeit for reasons different to those which persuaded the learned
judge. An appeal lies against the result
of another court’s
judgment, not its reasons. This appeal accordingly falls to be
dismissed.
[21] Unlike the position in Lester’s case however, the present
application is not one as contemplated by section 21
22
of the Act,brought at the instance of a local authority
23
.
It might therefore be argued that Lester’s case is to that
extent distinguishable, especially as the Supreme Court of Appeal
held that the case before it was ‘…not a neighbour law
case at all’, whereas the Respondent
in casu
is plainly
a neighbour of the Appellants and the Appellants rely on principles
of neighbour law.
[22] As much as that appears to be a point of distinction, I do not
consider it to affect what I consider to be the
ratio decidendi
of Lester’scase. The encroachment remains part of an illegal
structure which, absent approved plans, is prohibited by law.
It does
not matter whether the complaint relating to such illegality is
raised by the municipality or a neighbouring owner. The
principle of
legality entrenched in our Constitution endures for the benefit of
all.
[23] Nor do the benefits extended to municipalities in terms of s21
of the Act render the
ratio
in Lester’s case
inapplicable to the present dispute. S21 is primarily a
jurisdictional provision which permitsmunicipalities
to seek
demolition orders in respect of illegal structures within its area of
jurisdictionin the magistrate’s court, without
regard to the
value of the structure or such relief otherwise being beyond the
jurisdiction of a magistrate’s court. But
the fact that s 21
extends this benefit to municipalities, and not other
personae,
cannot
mean that where an illegal structure is objected to by a neighbour, a
court has a discretion to permit the illegal structure
to remain
against the payment of compensation, whereas if the objection was
taken by the municipality, the court would have no
such discretion.
Such an approach would produce anarbitrary result.
[24] However, even if I was wrong in that regard and it was to be
found that a court has a discretion to order compensation and
allow
the illegal structure to remain, then I nevertheless am not persuaded
that the court
a quo
erred in granting the order it did.
IF THE COURT A QUO HAD A DISCRETION, IT HAS NOT BEEN SHOWN THAT IT
DID NOT EXERCISE THAT DISCRETION PROPERLY:
[25] The learned judge in a carefully reasoned judgment weighed up
all the relevant consideration when it comes to exercising the
discretion
24
a
court has in matters involving encroachments in our neighbour law,
specifically whether to direct the demolition of the encroachment,
or
to direct the payment of compensation. Where a court has such
discretion, the starting point is that an owner is ordinarily
entitled to claim a demolition order in respect of an encroachment
unless it will give rise to an unjust result. The disproportionality
of prejudice
25
should a demolition order be directed, as opposed to compensation
being directed to be paid, will be a consideration in determining
whether an injustice might follow. Another consideration willbe the
aversion a court has to order the destruction of economically
valuable building works.
26
The Appellants however placed no evidence
27
before the court as to what it would cost to have the encroachment
removed. The Appellants also made no serious attempt to quantify
the
amount of compensation that should be paid, a point to which I shall
return below. The Appellants showed no concern or appreciation
28
for the extent of the damage the encroachment constituted to the
Respondent’s property. Instead, the attitude of Mr Bilro,
on
behalf of the Appellants, has been one of arrogance and disdain for
the complaints regarding the encroachment caused by his
illegal
building alterations, which would have been avoided, had he followed
the correct steps of first having building plans approved
before
undertaking a construction which could encroach on the land of
others. The Appellants were the authors of their own misfortune.
[26] The alternative claim for compensation should, in any event,also
fail as the Appellants did not provide any or satisfactory
evidence
to determine the amount of compensation. Although there was some
reference to the land having to be acquired at R2 800
per square
metre, one simply does not know what the extent of the building line
should have been both in width and in length.As
much as precise
arithmetical proof might not always be possible or legally required,
the Appellants failed, at a very minimum,
to prove what building line
should have been provided with reference to the configuration of the
portion of the building constituting
the encroachment.
[27] The Appellants accordingly failed to discharge the onus of
proving the amount of any compensation. That being so, the court
a
quo
for that reason too, would have had no basis to exercise its
discretion other than in favour of the Respondent.
WHAT OPPORTUNITY FOR DEMOLITION SHOULD BE ALLOWED?
[28] The court
a quo
granted an order in terms of paragraphs 1
to 3 of the Notice of Motion. Paragraph 3 falls to be rectified to
refer to sub-paragraph
(a) only. It also seems to me that the time
period of ‘two weeks’ in paragraph 1(b) of the Notice of
Motion is unreasonably
short and should be substituted with ‘two
months’.
COSTS:
[29] The Respondent has asked that the appeal be dismissed with
costs,such costs to include those consequent upon the employment
of
senior counsel. Such an order appears to be appropriate and
reasonable in the circumstances. The Appellants did not advance
any
argument to the contrary.
ORDER:
[30] The order granted is therefor as follows:
The appeal is dismissed with costs, such costs to include those
consequent upon the employment of senior counsel.
The order of the court
a quo
is replaced with the following:
An order is granted in terms of paragraphs 1, 2 and 3(a) of the
Notice of Motion, save that the reference to ‘two weeks’
in paragraph 1(b) is substituted with ‘two months’.
___________________________
LOPES J
___________________________
CHILI A J
___________________________
Date of Judgment: 18 October 2013
Date of Delivery: 7 November 2013
APPELLANT’S COUNSEL: MR N R NAIDOO
APPELLALNT’S ATTORNEYS: M B PEDERSEN & ASSOCIATES
Ref.: M B PEDERSEN
Tel.: 031 – 301 2173
RESPONDENT’S COUNSEL: ADV. C J PAMMENTER S C
RESPONDENT’S ATTORNEYS: JAILALL YUSUPH & ASSOCIATES
Ref.: P JAILALL/AK/E001/09
1
As
per the Notice of Motion.
2
The
Third Respondent in the counter application is the Registrar of
Deeds, KwaZulu-Natal.
3
The
First Respondent in the application and the First Appellant in the
appeal.
4
The
Applicant in the application and the Respondent in the appeal.
5
The
counter-application did not disclose a valid cause of action, nor a
valid defence to the relief
claimed. In
Meyer v Keiser
1980 (3) SA 504
(D) at 507A-C Kumleben J held:
‘
When an award of damages is
acknowledged as the permissible and appropriate form of relief in
the case of an encroachment, an
order for the transfer of that
portion of the property encroached upon is incidental to, and
consequent upon, such an award.
The virtue of such an ancillary
order is obvious but it need not necessarily be made (cf
De
Villiers v Kalson
1928
EDL 217
at 233), and in certain circumstances to do so may be
impracticable or not permissible in law.
The
important point is that, whatever form the order takes in such a
case, it is the award of damages which is the true basis
for the
relief granted.
In
my view, perhaps as a result of the form of the orders in the two
decisions relied upon, this was overlooked by the pleader
in the
instant case which resulted in a misconception of the nature and
extent of the Court’s discretionary authority’.
6
To
that extent, the terms of the referral to oral evidence broadened
the relief claimed by the Appellants beyond that claimed
in their
counter application.
7
The
owner of the consolidated property was Feltex (Pty) Ltd.
8
It
also took transfer of erven 1181, 1182, 1190 at the same time.
9
This
was also from Feltex Pty) Ltd. It also took transfer of erf 1183.
10
The
First Appellant also took transfer of erf 1183 at the same time.
11
This
is the road servitude which forms the subject of the relief in
paragraph 2 of the Notice of Motion.
12
Act
103 of 1977.
13
Section
4(4) of the Act renders a contravention of section 4(1) a criminal
offence with a penal sanction of a fine not exceeding
R100 for each
day on which the offender was engaged in erecting the illegal
structure. See
Lester v NdlambeMunicipality
[2013] ZASCA 95
para 19.
14
Mr
Chris Hearn, a property evaluator testified that the encroachment
extended over 31.6 square metres.
15
No
evidence was adduced of the extent of the aperture.
16
The
present is not an instance such as in
Trustees,Brian Lackey Trust
v Annandale
2004 (3) SA 281
(C)where the offending structure had
plans approved, but it had been positioned incorrectly resulting in
the encroachment.
17
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
1953 (2) SA 151
(O).
18
A
court, including a court of appeal, is entitled
meromotu
to
raise the question of non-joinder to safeguard the interests of
third parties –
Klep Valves (Pty) Ltd v Saunders Valva Co
Ltd
1987 (2) SA 1
(A) at 39I – 40B.
19
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at
649.
20
Rosebank
Mall (Pty) Ltd v Cradock Heights (Pty) Ltd
2004 (2) SA 353
(W)
para 11 – 12.
21
(514/12)
[2013] ZASCA 95
(22 August 2013 at para [20].
22
Section
21 provides that ‘Notwithstanding anything to the contrary
contained in any law relating to magistrates’ courts,
a
magistrate shall have jurisdiction, on the application of any local
authority or the Minister, to ….or authorizing such
local
authority to demolish such building if such magistrate is satisfied
that such erection is contrary to or does not comply
with the
provisions of this Act or any approval or authorization granted
thereunder’.
23
In
the present matter, the eThekwini Municipality.
24
That
a court has a discretion to award damages rather than demolition of
the structure is now well established – see
Rand Waterraad
v Bothma en ‘n Ander
1997 (3) SA 120
(O) and
Trustees,
Brian Lackay Trust v Annandale
(supra) at fn 13 para 20 on page
289. That principle must be qualified to the extent that the
structure must be a legal one with
approved building plans.
25
Trustees
Brian Lackay Trust v Annandale
(supra) at fn 13 para 35.
26
Trustees
Brian Lackay Trust v Annandale
(supra) at fn 20 para 36.
27
Mr
Bilro testified that he did not get a quotation for the costs to
remove the encroachment and that he did not bother to do so.
28
Mr
Bilro testified when it was pointed out to him that the Respondent
would not be able to complete the buildings on its property
that all
the Respondent had to do was put a roof against his roof?