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[2006] ZAWCHC 74
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Green and Another v Lezmin 2069 CC (2463/2007) [2006] ZAWCHC 74 (28 March 2006)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO.: 2463/2007
In
the matter between
LAURENCE
ANTHONY GREEN
First
Applicant
MANDY
LUCY GREEN
Second Applicant
and
LEZMIN
2069 CC
Respondent
JUDGMENT
DELIVERED
ON 28 MARCH 2006
SAMELA,
AJ
INTRODUCTION
[1]
This is an opposed application whereby the Applicants sought a
mandatory relief compelling the Respondent to erect a boundary
wait
on the common boundary between their residential properties, in the
alternative the Applicants sought relief directing the
Respondent to
allow the Applicants and their contractors access to the
Respondent's property in order to erect a boundary wall
along the
full extent o! the common boundary.
Mr
D Borgstrom represented the Applicants
Mr
R Stelzner represented the Respondent,
FACTUAL
BACKGROUND
[2]
The Applicants' and the Respondent's properties, and several others
surrounding were created in the subdivision of previously
under-developed erf in 2003. Both properties are situated on a hilly
slope outcrop in a new, upmarket area of Protea Heights
near
BracKenfelL
[3]
On
the Applicants' property the slope rises diagonally from about 10,5
metres in the south-west corner to 18,5 metres in the north
east
corner of the two properties. The Applicants purchased their
property in March 2003, measuring 1010 square metres and opens
onto
Keurboom Road,
The
Applicants'
eastern boundary is shared with the Respondent's property. The
common boundary between these properties is 39,54 metres
long.
The
natural
landscape, that fa before construction, rose from 14,5 metres at the
front (close to Keurboom Road) to 16,5 metres at
the far back
corner.
[4]
Construction on the Applicants' property commenced in June 2005 with
excavations to flatten the platform upon which the Applicants'
residence was to be built. The upshift excavation exposed a wedge of
earth along the common boundary of the hvo properties, The
exposed
wedge measured 1 ,8 metres deep at the back north-eastern comer and
dropped over a distance of 18,5 metres,
[5]
The Respondent bought its property, which measured 1003 square
metres in 2005. It is situated at the corner of Keurboom Road
and
Afomsicht Close. Shortly thereafter, construction commenced on its
property. The defendant brought large quantity of fill
material for
raising its platform on which to build the residence. This resulted
into a two metres platform created which was
higher than the one
created by the Applicants, running the full length of the common
boundary between the properties The ridge
mostly made up of rubble
and other fill by the Respondent required stabilization and
retention. Both the Applicants and the Respondent
ware bound by the
"Design Guidelines" approved and provided by the City of
Cape Town.
INSPECTION
IN LOCO
[6]
At the commencement of the trial counsel for the parlies suggested
that an inspection in loco might be of assistance in resolving
the
disputed issues. The court agreed that an Inspection in loco of the
parties' properties be held, On 27 August 2007 an inspection
in loco
of the two properties was undertaken and a joint minute by the
parties was produced. The purpose of the inspection was
to have a
good overview of both properties.
[7]
The inspection in toco took place at the properties of all the
parties (i.e. the Applicants and the Defendant). It was attended
by representatives from the legal teams, including their respective
counsel and attorneys. All the parties agrees that the relevant
observations made and information gleaned during the inspection,
would be recorded in minutes to be duly approved and signed
by the
representatives from both sides. The minutes were subsequently
handed up.
[8]
Behind the Applicants' and the Respondent's properties the following
was observed;
(i)
The
Alomzlcht Crescent, descends steeply joining onto Keurboom Road;
(ii)
The
Respondent's property is situated at the corner of Alamzicht
Crescent and Keurboom Road;
The
Applicants' property is situated at 19 Keurboom Road and is the
Respondent's property's neighbours;
(iv)
The
contours of the terrain, rises diagonally across the Applicants'
and
the
Respondent's properties, towards a point where the inspection party
stood;
(v)
The
back walls of the Applicants' and the Respondent's properties are
currently over six feet high,
[9]
The
dividing
boundary
between the Applicants' and the Respondent's properties, the
following was observed;
The
boundary between the properties was 39,5 metres long. The platform
on which the Respondent's house is built being at a level
two
metres higher than the level on which the Applicants' house is
built
all
along
the common dividing boundary;
A
terrace retaining structure runs from the back walls of both
properties for a distance of about 30 metres in the direction
of
Keurboom Road, retaining the exposed face of earth between tha
levels of the two properties;
The
terrace retaining structure is made up of hollow, serriE-circutar
cement blocks. The top row of the blocks is situated on
the
Respondent's property. The retaining structure terraces outwards,
with its foot encroaching approximately 15-30 cm onto
the
Applicants
1
property;
The
top of the blocks of the retaining structure is at the ground level
on the Respondents property, with a further two to three
rows of
btocks looseiy packed (i.a, not cemented Into place) on top; and
Mr
Borgstrom demonstrated how someone on the Respondent's property
could climb down the terraced structure onto the Applicants'
property.
[10]
On the Respondent's property, along the boundary of the properties
towards the Keurboom Road
H
the following was observed:
(i)
A
grassed area of approximately 3 metres wide runs down the side of
the Respondent's property passed the kitchen door and washing
line;
(ii)
The
grassed area leads to stairs which descends into a small sunken
courtyard nearest to Keurboom Road. The sunken courtyard had
no
fence or balustrade along its edge on the Keurboom Road side; and
(iii)
A
terraced retaining structure made out of hollow, semi-circular
cement blocks (identical to those along the common boundary between
the parties' properties) retains the bank of earth at the front of
the sunken courtyard, which terraces out to the pavement on
Keurboom
Road which is approximately 2 metres below,
The
front of the Respondent's property had also partially collapsed.
[11]
There is a wall separating the properties along the 9 metre stretch
nearest to the Keurboom Road, with the following identifiable;
(a) A
retaining wall was built on the Respondent's property, which rose
about half a metre above the main ground level on the
Respondent's
property, and formed the aide of the sunken courtyard;
(b) A
second ''buttressing" wall was built on the Applicants'
property to the same height; and
(c)
A cavity between the two walls was partly filled.
[12]
At the Applicants' wooden staircase, it was observed that the main
portion of the Applicants' front garden and its house
are situated
on a levelled platform which had been excavated into the hill.
[13]
Outside both properties on the opposite side of the road, it was
observed that there were vibracrete wait erected between
boundary of
numbers 74 and 76. The vibracrete wall had not been built on the
apex of the structure, but at the loot tnereof.
A similar vibracrete
wail also divided numbers 70 and 72 at the same street, namely
Keurboom.
ISSUES
TO BE DEC?PEP
[14]
This court is called upon to decide whether a mandatory relief
should be granted in favour of the Applicants against the
Respondent, compelling the Respondent to erect an effective boundary
wall on the common boundary between the two properties (i.e,
the
Applicant's and the Respondent's properties). Alternatively,
granting a relief sought by the Applicants directing that the
Respondent to give the Applicants and their contractors access to
the Respondent's property for the purpose of erecting a proper
boundary wali along the full extent of the common boundary.
EVALUATION
OF EVIDENCE
(15]
Mr Borgstrom argued on Applicants' behalf that:
(i)
the
Applicants are unable to build the boundary wail themselves without
Respondent's permission to access to Its property, as
the Respondent
refused them such;
(ii)
there
was a duty on behalf of the Respondent to act reasonably and to
eliminate dangers arising from the usage of his property
which the
Applicants cannot be reasonably expected to tolerate;
(iii)
the Respondent has caused the boundary wall on the front section of
the property to be lowered by four rows and this could
easily be
scaled by anyone on the Respondents property;
(iv)
the inadequate barrier between the two properties has caused the
following dangers:
(a)
Security
danger. In the absence of an adequate barrier the Applicants' house
is forever dependant on the security of the Respondent;
[b)
Swimming
pools on both properties which are not fenced;
(c) The
swimming poo! paving ends abruptly with a sheer fall of 3 metres to
the road below; and
(d) That
the Respondent's children and pets come onto the Applicants'
property and that the Applicants have to keep their dog
indoors;
(e) Ail
the above result in an unacceptable lack of privacy for the
Applicants as the Respondent and his family can stand on their
front
lawn and look down onto the Applicants in their pool area.
[16]
Mr Stelmer argued on Respondent's behalf that the following are
disputes of facts between the parties:
(a) whether
the building plans were required for the retaining structure;
(b) whether
the retaining waff was built in accordance with engineers
specifications;
(c) what
the specifications were
r
e.g. what type of structure can safely be built on top of the
retaining wall;
(d) whether
the retaining wall is indeed safe and stable enough for a further
wall to be built on it;
(e) whether
the retaining wall constitutes an adequate boundary;
(f)
what the parties' agreement in respect of the costs of the
retaining wall;
(g)
what
Applicants' liability in respect of the retaining wall is;
(h)
what
type of dividing wail would be suitable or permissible;
(i)
how
much this wall will cost;
(])
are building plans required for the dividing wall;
(K)
who will draw the plans for the wall and when;
(l) when
will the plans be lodged with the local authority;
(m)
when will the local authority pass the plans.
[17]
As regards to the final interdict sought by the Applicants, Mr
Stelxner has argued as follows;
(a)
The Applicants have failed, in their founding affidavit, to indicate
that they have a clear right which would compet the Respondent
to
build a boundary wall;
(b) There
is no specific rule in our law which imposes a duty on a neighbour
to construct a boundary wail, although there appears
to be a joint
responsibility to maintain such a wall;
(c) Pertaining
to "reasonableness" and "enforceability''
consideration, the order prayed for:
(i)
gives
no indication what type of wall the Applicants want the court to
order the Respondent to build;
(ii)
makes
no provision for plans for the wall to be passed; and
(iii)
sets
a time limit which is such that it affords the Respondent no time to
submit any plans, let alone for Investigations to be
done to
determine what would be a suitable and/or permissible wall;
(d)
The
Applicants for the first time made a tender to pay half the costs of
a vibracrete well. However, a dispute between the parties
exists
whether such a vibracrete wall is "effective", proper
and/or permissible. The Respondent contends that the suggested
vibracrete wall by the Applicants is En breach of the guidelines
which the Applicants say are applicable.
Mr
Stelzner submitted further that the order sought by the Applicants
is neither reasonable, proportionate, practicable or enforceable.
[18]
Referring to alleged danger, Mr Stelzner argued that the 2 metres
high relaining wall constitutes an adequate boundary between
the two
properties. In addition, all children are competent swimmers and
therefore, the retaining wall structure constitutes
an adequate
boundary, Mr Stelzner argued further that there is therefore no
danger, alternatively, no real or imminent danger
that needs to be
addressed.
[19]
Mr Stelzner is of the view that the failure by the Respondent to
take any steps in the present circumstances, more so, its
failure to
build a boundary wall other than the 2 metre high structure is
indeed an adequate boundary between the properties.
Therefore, Mr
Stelzner finally submitted that the Applicants' demands are clearly
unreasonable and that the conduct of the Respondent
is reasonable.
Against the aforesaid, I ask myself the following: ⢠Is there a
clear proof of illegality?
Is
this court competent to order the Respondent to construct a
boundary wall on the common boundary between the two properties?
Can
the court refuse the final interdict?
Is
there no joint responsibility for the two properties to maintain
the common wall?
What
is a proper boundary wall between the two properties?
Are
there any reaf dangers, which constitute serious risk that the
Respondent has to take steps to eliminate the same?
Would
the court order be reasonable, proportionate, practical and
enforceable in these circumstances?
APPLICABLE
LAW
[20]
It is trite law that where an Applicant sought a final interdict,
the following requisites have to be met:
(a) A
clear right. The Applicant must indicate to the court that he/she
has a clear right, that is, a right which can be protected
by an
interdict (see
Welkom
B ottling Co (Pty) Ltd v
Belfast
Mineral
Waters (OF3) (Pty) Ltd
1967
(3) SA 45
(o) at 55 compare
Tavern
Drankwinkel
(Edms)
Bpk
vMunisipaliteltvan Stellanboach
1985
(4) SA694 (C) at 901 A-B;
(b) An
injury actually committed or reasonably apprehended. This means an
infringement of ihe right
which
has
been established and also resultant prejudice. The injury must
either have been actually committed or reasonably apprehended
(see
Philip
Morris
tnc
&
Another
v Marlboro
Shirt
Co
SA Ltd
&
Another 1991 {2) SA 720 (A) at 735 B; and
(c) The
absence of simitar protection by any other ordinary remedy [see
Sellogelo
v Setloeeio
1914
AD at 221,227).
An
Applicant will not ordinarily get an interdict if the Applicant can
obtain adequate redress through another remedy, The alternative
remedy, therefore, must be adequate in the circumstances of the
case, be ordinary and reasonable, and that it be a iegal remedy
which grant a similar protection.
The
National Building Regulations and Buildings Standards Act 103 of
1977 is also applicable (hereinafter called the Act). Section
4 of
the Act provides that:
{1)
No person shall without the prior approval in writing of the focal
authority in question, erect any building in respect of
which plans
and specifications are to be drawn and submitted
in
terms
of this Act.
(2) Any
application for approval referred to in subsection (1) shall be in
writing on a form made available for that purpose by
the local
authority in question.
(3) Any
application referred to in subsection (2) shall -
(a) contain
the name and address of the applicant and, If the applicant is not
the owner of the land on which the building in
question Is to be
erected, of the owner of such Sand;
(b) be
accompanied by such plans, specifications, documents and information
as may be required by or under this Act and by such
particulars as
may be required by the local authority in question for the carrying
out of the objects and purposes of this Act.
APPLYING
THE LAW TO THE FACTS
[21]
The Applicants demand that the Respondent must raise the common
boundary higher than the current 2 metre high retaining structure.
The Applicants are of the view that a vibracrete wall is an ideal
one to be erected on top of the present or current retaining
structure.
[22]
The neighbour law does not impose a duty on a neighbour to build or
construct a boundary wall. However, where there is an
existing
common boundary wall, both landowners adjacent to such wall are
expected to jointly maintain the same. In this matter,
the
Respondent was responsible for building the bottom wall which is 2
metres high with no contribution from the Applicants as
to the costs
of the wall (see
Fourle
v Bakrivier rEdma) Bpk
1962
4 SA 167
(NC). The failure by the Respondent to build a boundary
wall other than the 2 metre
high
retaining
structure is,
in
my
view, not unreasonable. The Applicants demanded in the alternative,
that the Respondent allows the Applicants and their contractors
access to the Respondent's property for purposes of erecting "a
proper boundary wall
1
'
along the full extent of the common boundary. The Applicants have
provided no written approval from the local authority (in
this
matter City of Cape Town) to erect such a wall. Should the court
direct the Respondent to allow the Applicants into the
Respondent's
properly for purposes of erecting the so-called "proper
boundary wall", it will be frustrating or going
directly
against the purpose of section 4 of the National Bulging Regulations
and Building Standards Act 103 of 1977 (see 20
above). In my view,
the Applicants do not have a clear right or definite right that can
be protected by an interdict.
I
am not convinced that; the failure to raise the current 2 metre
common boundary wail though interfering with the Applicants'
comfort
(on a minimal scale) can be considered unreasonable; there are real
dangers, which would require the Respondent to take
positive steps
to prevent the same. I hold the view that there was no infringement
of the Applicants' rights which has been established,
resulting in
prejudice. Although it has been submitted that the Applicants do not
have other remedies, J hold a different view
CONCLUSION
[23]
in conclusion 1 am of the view that the Applicants have failed on
balance of probabilities to prove that they have a clear
or define
right; that an injury to them had been actually committed or
reasonably apprehended and finally, that there is no alternative
remedy that the Applicants could obtain to adequately redress their
concerns. Even the alternative remedy sought has no legal
basis.
I
accordingly make the following order: The application is dismissed,
with costs.
SAMELA,
AJ