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[2012] ZAKZDHC 101
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Riverland Resort Shareblock (Pty) Ltd v Letschert (3794/2010) [2012] ZAKZDHC 101 (25 April 2012)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO. 3794/2010
In
the matter between:
RIVERLAND
RESORT SHAREBLOCK (PTY) LTD.
…...............................................
APPLICANT
and
LINDSAY
JANE
LETSCHERT
......................................................................................
RESPONDENT
JUDGMENT
Delivered
on 25 April 2012
SWAIN
J
[1]
The conduct of the respondent which has given rise to the present
dispute between the parties, is the painting by the respondent,
of
the window frames and external doors in a grey colour, of a dwelling
which the respondent is entitled to occupy, by virtue of
her
ownership of a shareblock at the applicant’s River Resort,
where a number of free standing dwellings, have been erected
by
owners of shareblocks, within their respective use areas.
[2]
The applicant, Riverland Resort Shareblock (Pty) Ltd. seeks a
mandamus
in the form of an order directing the respondent
“
to
remove, replace, or rectify any windows or external doors already
installed in the aforesaid buildings, where they are not made
of, and
finished in bronze aluminium or natural (unpainted) hardwood
”
.
Ancillary interdictory relief is also sought, which is aimed at
preventing the respondent from installing windows and external
doors
(including garage doors) in the future unless the
“
windows
and doors are made of and finished in either bronze aluminium or
natural (unpainted) hardwood”.
Further
interdictory relief is sought that the respondent be restrained from
installing any windows or external doors, until the
respondent has
obtained the approval of the applicant, to do so.
[3]
When the respondent purchased the particular shareblock in the
applicant, there was an existing dwelling erected on the demarcated
area, which the respondent was entitled to occupy, in terms of the
applicant’s use agreement. The respondent wished to effect
alterations and improvements to the dwelling and consequently
submitted her plans for approval to the board of the applicant.
It is common cause, she was obliged to do this in terms of Clause 3.3
of the use agreement which reads as follows:
“
No
building shall be erected on the Site until plans and specifications
thereof have been submitted to and approved by the Board,
which
approval shall not be unreasonably withheld. No buildings shall
be erected in conflict with any such approved plans
and
specifications”.
[4]
It is also common cause that when the respondent purchased the
dwelling, the respondent took cession of the seller’s rights
and obligations in terms of the use agreement, and is bound by its
terms.
[5]
It is also common cause that the applicant’s board delegated
approval of plans and specifications to its building committee,
who
published a building design code, a copy of which is included in the
papers. Although the respondent did not admit that such
delegation
was lawful, no grounds were advanced why the delegation was not
permitted. No argument was advanced in this regard
by Mr.
Smithers S C, who appeared for the respondent, and need not concern
me any further.
[6]
It is trite that the applicant is a company incorporated under the
Companies Act, and that a use agreement is an agreement between
a
member of a shareblock company and the company, which sets out the
terms and conditions, on which the member is entitled to exercise
the
right conferred on him or her, in the articles, to occupy a
particular section of the company’s property, linked to his
or
her shares.
Lawsa
Vol 25 Part 1 (First re-issue) paragraph 14
[7]
A use agreement may contain restrictions on structural, or other
alterations, by members to the company’s property.
Lawsa
supra
at
paragraph 39
In
addition, in terms of clause 22 of the use agreement, in the event of
the respondent breaching any term of the use agreement
and remaining
in breach after due notice of the breach, the applicant may cancel
the use agreement, obtain repossession of the
site and sell the
respondent’s shareblock.
[8]
What all of the above makes clear is that the relationship between
the parties is contractual.
[9]
In addition, by virtue of the fact that no claim was advanced by the
respondent, for a review of the conditions attached by
the building
committee to the approval of the respondent’s plans, I am not
concerned with a determination of whether such
a review, could be
advanced on the facts of this case.
de
Ville – Judicial Review of Administrative Action in South
Africa - First Edition Pg 47
Pennington
v Friedgood & others
2002
(1) SA 251
(C) at paragraphs 36 – 42
Body
Corporate of the Laguna Ridge Scheme No. 152/1987
v
Dorse
1999
(2) SA 512
(D) at 522 G – H
[10]
The approval by the building committee of the respondent’s
plans was couched in the following terms:
“
I
refer your buildings reflected on the above plan & am pleased to
confirm the Committees approval of same subject to
1.
You getting the necessary approvals from
the relevant authorities.
2.
All work to conform to National Building
Regulations SABS 0400/1990, the resorts Building Design Code and
Annexure R R 3”
of the use agreement”.
[11]
The provisions of the building design code in issue read as follows:
“
WINDOWS,
EXTERNAL DOORS
Hardwood
or bronze aluminium external doors and windows are permitted.
The general size and shape to conform to the surrounding
buildings”.
[12]
The crux of the dispute relates to the meaning to be ascribed to the
word
“
hardwood”
and
more particularly whether this word not only defines the material
from which external doors and windows are to be constructed,
but in
addition defines a particular colour to which external doors and
windows must conform.
[13]
On the papers there is nothing to indicate that the building design
code, was formulated by agreement between the applicant
and the
owners of individual shareblocks such as the respondent.
The applicant simply states that the building design
code was
“
published to give owners and
prospective owners notice of what will be approved”.
The
building design code may conveniently be referred to as a
“
decisional
referent”
being standards or
criteria, that the decision maker (being the building committee) will
have reference to when making a decision.
Baxter
Administrative Law - pg 89
This
term, although formulated by the learned author, in a public law
context, can in my view, be equally applied in the present
context.
[14]
Although the building design code, may not have its origin in
agreement, between the building committee and individual shareblock
owners, this is not significant in interpreting the clause in
question, because there is little or no difference, between
contracts,
statutes and other documents in the approach to their
interpretation.
Natal
Joint Municipal Pension Fund v Endumeni Municipality
(920/2010)
[2012] ZASCA 13
(15 March 2012) at para 18 note 14
In
this case Wallis J A (at paragraph 18) described the correct approach
to interpretation as follows:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary rules
of grammar and syntax, the context in which the provision
appears,
the apparent purpose to which it is directed and the material known
to those responsible for its production. Where
more than one
meaning is possible, each possibility must be weighed in the light of
all these factors. The process is objective
not subjective.
A sensible meaning is to be preferred to one that leads to insensible
or unbusinesslike results or undermines
the apparent purpose of the
document. Judges must be alert to, and guard against the
temptation to substitute what they regard
as reasonable, sensible or
business-like for the words actually used”.
[15]
As to the correct approach where the Court is faced with two or more
possible meanings, that are to a greater or lesser degree
avaiIable
on the language used, Wallis J A expressed himself in the following
way (at paragraph 26):
“
Here
it is usually said that the language is ambiguous although the only
ambiguity lies in selecting the proper meaning (on which
views may
legitimately differ). In resolving the problem the apparent
purpose of the provision in the context in which it
occurs, will be
important guides to the correct interpretation. An
interpretation will not be given that leads to impractical,
unbusinesslike or oppressive consequences or that will stultify the
broader operation of the legislation or contract under
consideration”.
[16]
On the evidence the building design code was published to give owners
and prospective owners, notice of what would be approved.
The
object was no doubt to ensure consistent and predictable decisions by
the building committee, albeit at the expense of individualised
discretion in considering the approval of plans placed before it.
Baxter
supra
at pg 416
[17]
The introduction to the building design code conceptualises what its
purpose and objective is, in the following terms:
“
Riverland
Estate represents a totally unique development along 2.5 km of treed
river frontage on the Umlalazi River. The river
is tidal and
the estate is seven kilometres from the river mouth. The estate
has its own slipway for launching boats and
has good seasonal river
fishing and birding.
Approval
to develop 48 holiday chalets [in terms of Plan P.T.B. 21044 (1)]
dated 27
th
February 1990 was obtained from the administrator in 1992.
The
development is intended to be eco-friendly and the architectural
design simple, with accent on the commonality of the hip roof,
roof
and wall colours and squared ‘cottage’ type building
design.
The
Architectural style is to conform to existing new structures and must
comply with the Building Design Code in all aspects”.
[18]
The emphasis is upon conformity of design and appearance, which
includes colour by specific reference to
“
wall
colours”. In Clause 9, the exterior paint colour is
specified as
“
Micatex Kalahari (no
face brick allowed)”. In addition, in Clause 2.2, the
colour of the concrete roof tiles is specified
“
grey
to match existing”. In addition it is provided that
“
rainwater goods”
(which
I assume includes gutters and downpipes) is to
“
match
wall colour”. Facias have
“
to
match wall colour”
and exposed roof
timbers
“
must be stained”.
[19]
It is therefore clear that the clause in question appears in the
context of the building design code, in which a primary purpose
is to
ensure conformity in the external colours applied to units, whether
it be the colour of the roof, the walls, rainwater goods,
facias as
well as exposed roof timbers. The only other significant
external features of a dwelling, the colour of which could
conceivably have an effect on the overall outward appearance of the
dwelling, would be windows and external doors, which leads
me to the
meaning of the clause around which the dispute revolves.
[20]
The meaning of the word
“
hardwood”
and whether it not only defines the material from
which external doors and windows are to be constructed, but also
defines a particular
colour to which external doors and windows must
conform, has to be determined in the context of the other provisions
in the building
design code to which I have referred, as well as the
provisions of the particular clause in which it appears. What
is immediately
apparent is that apart from specifying the nature of
the materials which must be used to construct jetties, the only
material specified
(apart from the clause in question) in the
construction of dwellings is
“
concrete”
roof tiles. This is to be contrasted with
the number of provisions dealing with the external colour of various
parts of the
dwellings, which I have referred to.
[21]
What is clear is that the clause provides for the type of materials
from which external doors and windows may be constructed,
namely
hardwood and aluminium. It is equally clear that
“
bronze
aluminium”
must refer to the colour
of aluminium that is permitted, and not some type of amalgam of
bronze and aluminium. I regard the
statement by the respondent
that it is unclear whether the term
“
bronze
aluminium”
refers to the bronze alloy
containing copper and aluminium, or whether it refers to aluminium
which through some finishing process
has obtained a bronze colour, as
spurious and an attempt to obfuscate the issue. I regard the
explanation by the applicant
why bronze aluminium was permitted as
far more plausible. Because the development is situated near
the sea, and because of
the resultant wear and tear on wood, it was
provided that aluminium could be used, but only if the aluminium was
bronze in colour,
which would blend in with the wooden finish
required in other instances. I am therefore satisfied that the
meaning of the
term
“
bronze
aluminium”
is that the material which
must be used is aluminium, which has been coloured bronze.
[22]
The meaning of the word
“
hardwood”
must consequently be determined not only in the
context that one of the main purposes of the building design code is
to ensure uniformity
in the external colours of units in the complex,
but also in the context that it is specified that an alternative
material, i.e.
aluminium, from which external doors and windows may
be constructed, has to be bronze in colour.
[23]
As regards the colour and nature of different types of hardwood, the
respondent filed an affidavit by one Stretton, an architect,
in which
he opined that hardwoods generally turn grey in the presence of ultra
violet radiation and commented on the need for various
hardwoods to
be sealed, to prevent deterioration, and that it was inadvisable to
use unpainted (including unvarnished) wooden window
frames or doors.
In addition, he expressed the view that he did not regard Clause 3 of
the building design code as requiring
that hardwood be painted either
“
bronze or brown in colour”.
He also opined that he did not see that as a
reasonable requirement, in the absence of specification of the
particular shades required,
as brown and bronze could not be said to
be the same colour. The purpose of this evidence was to support
the respondent’s
contention that the use of the word
“
hardwood”
permitted the painting of window frames and
external doors a grey colour.
[24]
As pointed out by Harms D P in the case of
K
P M G v Seccurefin Ltd.
2009
(4) SA 399
(SCA)
an
expert witness called in aid of interpreting a document, is entitled
to explain the meaning of technical terms, but cannot express
any
views on what the document means. Consequently, this witness’s
views on what the clause means can be ignored.
[25]
That window frames and external doors constructed of aluminium have
to be bronze in colour, taken together with the clear purpose
of the
building design code being to ensure uniformity in the external
colours of dwellings, I regard as of decisive importance
in
determining whether the word
“
hardwood”
determines not only the nature of the material to
be used, but also its colour. A conclusion that the term
“
hardwood”
has
no bearing upon the colour of the window frames and external doors,
would lead to an insensible result, namely that they could
be painted
whatever colour the individual shareblock owner chose. This
would undermine the purpose of the building design
code, which as I
have said, is to ensure uniformity in the external colouration of
individual units. This can only achieved
if
“
hardwood”
window frames and external doors are of a similar
colour to bronze aluminium window frames and external doors. I
accordingly
construe the word
“
hardwood”
to mean not only the type of material to be used, but also its
colour, namely a dark colour which is in conformity
with the colour
“
bronze
aluminium”
which is clearly depicted on a number of
photographs included in the papers. I am fortified in the
conclusion I have reached
by an examination of the photographs
included in the papers, which with a few exceptions, indicate that
the majority of shareblock
owners, understand that the provisions of
the building design code, mean that window frames and external doors,
should be dark
in colour.
[26]
I likewise reject the argument of the respondent, based on the
premise that hardwood turns grey when exposed to sunlight, if
left
untreated, as a justification for painting the window frames and
external doors grey. The object of the provision could
never
have been to provide for a colour, which would be achieved by
weathering, which would vary in shade during this process,
and which
would be inconsistent with the colour of bronze aluminium frames in
the development.
[27]
A great deal of the argument of Mr. Smithers S C was directed at
showing that the applicant had acted unreasonably in approving
the
respondent’s plans, subject to the building design code and
likewise had acted unreasonably, in seeking to enforce the
terms of
the building design code against the respondent, when there were a
number of examples of other dwellings, not being in
accordance with
the code.
[28]
In the absence of any counter-application by the respondent, to
review the decision of the building committee, on the ground
of
unreasonableness (assuming such a cause of action was available to
the respondent) the argument of Mr. Smithers S C, was based
upon the
provisions of Clause 3.3 of the use agreement that approval of plans
“
shall not be unreasonably
withheld”.
As I understood the
argument, it was that by making the approval of the plans subject to
such a condition, with the concomitant
problems of what the meaning
was of Clause 3 of the building design code, the building committee
had unreasonably withheld an unconditional
approval of the
respondent’s plans. In doing so, they had breached their
obligations in terms of the use agreement.
[29]
In the light of the conclusion I have reached as to the meaning of
Clause 3 of the building design code, I do not regard the
conduct of
the building committee in conditionally approving the respondent’s
plans as unreasonable.
[30]
As regards the selective enforcement of the provisions of the
building design code, the applicant conceded in reply that there
were
some instances where the complaint of the respondent was justified,
but that steps had been taken and were still being taken,
to rectify
these omissions on the part of the applicant. Photographs were
put up in reply to support this assertion.
Mr. Smithers S C
however submitted that in the light of the decision in
Plascon
Evans Paints Ltd. v van Riebeeck Paints (Pty) Ltd.
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
I
could not have regard to what was put up in reply. I disagree.
There was no dispute of fact that the applicant had
failed to
effectively enforce the building design code against other shareblock
owners. What was however significant, was
that steps had been
taken to rectify the situation, in which regard there was no dispute
on the papers, as the respondent never
sought leave to file a further
affidavit to deal with this. In any event, if due regard is had
to the fact that the relationship
arising out of the agreement
between the applicant and individual shareblock owners is
contractual, a failure to enforce a breach
by the applicant, against
another shareblock owner, can have no bearing upon its election to
enforce such a breach against the
respondent.
[31]
As regards the costs involved in rectifying the situation, the
respondent estimates this to be in the region of R100,000,00.
No
expert evidence or quotations by contractors were put up to support
this assertion, which is simply the respondent’s estimate.
In any event, the cost of rectifying the colour of the window frames
and external doors cannot preclude the grant of the relief
which the
applicant seeks.
[32]
In my view, it would be impermissible to grant an order in the form
sought, specifying that the hardwood be
“
unpainted”,
because this could conceivably preclude painting the window frames
and external doors with a preservative or sealer.
By specifying
that the hardwood be
“
dark”
a more accurate expression is given to the meaning
intended in the building design code. For same reason I find it
unnecessary
to include a description of the
“
hardwood”
as
“
natural”
as sought in the order prayed.
I
grant an order in the following terms:
1.
The respondent is hereby interdicted and
restrained from installing windows and external doors (including
garage doors) in the construction
of any buildings on Site 2,
Umlalazi River Resort, Mtunzini, unless the said windows and doors
are made of and finished in either
bronze aluminium or dark hardwood.
2.
The respondent is interdicted from
installing windows and external doors in the aforementioned buildings
until such time as the
respondent has obtained the applicant’s
approval of the respondent’s specifications relating to the
type and finish
of the windows and external doors to be utilised.
3.
The respondent is ordered and directed to
remove, replace or rectify any windows or external doors already
installed in the aforesaid
buildings, where they are not made of, and
finished in, bronze aluminium, or dark hardwood.
4.
The respondent is ordered to pay the costs
of this application.
___________
K.
Swain J
Appearances:
For
the Applicants
:
M/s
L. Mills
Instructed
by
: : Johnston & Partners
Durban
For
the Respondent
:
Mr. M.D.C. Smithers S C
Instructed
by :
JH Nicholson Stiller & Geshen
Durban
Date
of Hearing
:
17 April 2012
Date
of Filing of Judgment :
25 April 2012