About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2006
>>
[2006] ZAWCHC 67
|
|
O'Grady v Fischer and Others (A30/06) [2006] ZAWCHC 67; 2007 (2) SA 380 (C) (17 May 2006)
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO: A30/06
In the matter between:
RAYMOND PATRICK
O’GRADY
Appellant
And
FRANZ
FISCHER
1
st
Respondent
THE MUNICIPALITY OF
STELLENBOSCH
2
nd
Respondent
BOLAND DISTRICT
MUNICIPALITY
3
rd
Respondent
JUDGMENT: 17/05/006
VAN REENEN, J:
1] This is an appeal against a judgment of the Magistrate of Stellenbosch in
which he dismissed, with costs as between attorney and
client, an application in
which the appellant sought an order in the following terms against the first
respondent on an ex parte
and urgent
basis:
“2.1 interdicting and restraining the first respondent with immediate
effect from proceeding with the construction and paving
of a parking lot on his
property, farm 124/11, Banhoek, Stellenbosch;
2.2 ordering the first respondent to remove all paving that have been
constructed already and to restore the property to its
status quo
ante
;
ordering the first respondent to comply with all relevant laws, rules,
prescriptions and conditions of the second respondent and of
the third
respondent prior to again embarking upon any construction and paving of a
parking lot.
3 ...
4 ...
That the costs of this matter be paid by the first
respondent.
Further and/or alternative
relief.”
2] The appeal is primarily directed at the learned magistrate’s findings
that the appellant failed to discharge the onus as
regards certain requirements
for the granting of a final interdict; his finding as regards the meaning of
the word ‘building”
in section 1(a) of the National Building
Regulations and Building Standards Act, No 103 of 1977 (the Act); and the
order directing
the appellant to pay costs on an attorney and client
scale.
3] The appellant is the registered owner of an
immovable property namely, farm 124/400 Banhoek, Stellenbosch known as Hillcrest
Berry
Orchards, 18,7714 hectares in extent. The appellant not only resides on
the property but also conducts a restaurant business thereon.
4] The respondent - who was the first respondent in the application in the
court
a quo
- is the registered owner of two immovable properties one
whereof is farm 1341, Stellenbosch Division, known as Riverside on which
he
operates an eight bedroom guest house known as “De Kraal” Country
Lodge. That property is adjacent to that of the
appellant and is separated
therefrom by the old Helshoogte Road.
5] The subject-matter of the interdict in the court
a quo
is a paved
parking area of approximately 400 square metres constructed as from about 13
September 2005 by the first respondent on
the said property with bricks imbedded
in mortar.
6] The appellant’s attorneys of record on 14 September 2005 addressed a
letter to the respondent in which he was requested
to desist from continuing
with the construction of the paved parking area, failing which the court would
be approached for relief.
When the first respondent, during a telephone
conversation with the appellant’s attorney on 15 September 2005, adopted
the
stance that he had been advised by an official of the local authority
concerned that no written approval was required for the construction
of the said
paved parking area, the attorney, in a letter addressed to the respondent on the
same date demanded an undertaking, by
the close of business, that the
construction would be terminated. When the undertaking failed to materialise
the appellant launched
the application on an
ex parte
basis and set it
down for hearing at 12h30 on 16 September 2005. When the matter was called the
magistrate insisted that the papers
be served on the respondent as well as the
two other respondents which had been cited as parties namely the Municipality of
Stellenbosch
(as second respondent) and the Boland District Municipality (as
third respondent) and postponed the application to 7 October 2005.
7] The respondent opposed the application and filed an answering
and supporting affidavit but the second and third respondents chose
not join in
the fray. After the appellant had filed a replying affidavit the matter was
argued on the date to which it had been
postponed.
8] The thrust of the
application was that –
8.1 the “parking-lot” would invade the appellant’s
privacy;
8.2 the appellant had not consented to the
construction of the paved area nor had he been afforded an opportunity to
comment and/or
object thereto;
8.3 the second and third respondents had not
approved the construction of the paved area; and
8.4 that the paved area
when completed would infringe on the enjoyment of the appellant’s privacy
in that –
it would constitute a traffic hazard and impede upon amongst others his
restaurant business;
constitute a deleterious visual impact directly opposite his personal residence;
and
impact upon his personal privacy as the respondents establishment is frequented
at all hours of the night
(paragraph 8 of the founding affidavit).
9] The appellant’s articulation of the consequences of the
respondent’s alleged unlawful and illegal conduct is that
it
–
“a. is in clear breach of statutory provisions in that no building plans
have been submitted for the proposed activity, nor
has approval of the relevant
road authority, the third respondent been obtained, and consequently the
activity is in breach of, amongst
others, section 4(1) of the National Building
Regulation and Standards Act, act 103 of 1977;
constitutes a breach of my rights of
privacy;
constitutes a severe infringement of my rights of enjoyment of my property,
including my right to a safe and free flow of traffic,
my rights to protect the
visual integrity of my premises which include a restaurant business and my right
to privacy, particularly
at night time.”
(paragraph 14 of the founding
affidavit).
10] The Respondent denied the averment in paragraphs 8 and 9 above and there is
no basis on which it could be found that such disputes
were not real, genuine or
bona fide.
As the relief sought was final of nature, it could have been
granted only if the facts averred in the appellant’s papers and
admitted
by the respondent, together with the facts averred by the respondent, justified
the granting thereof (See:
Plascon Evans Paints v Van Riebeek Paints
1984(3) SA 623 at 634 H – I). The appellant, faced with the prospect of
being denied any relief, in his replying affidavit
amplified the grounds on
which he sought relief in that he annexed thereto a letter dated 28 July 2004
from the Stellenbosch Municipality,
Annexure “G”, from which it
appeared that the rezoning of the respondent’s property had been granted
subject to
certain conditions one whereof
was
“(x) that parking for at least 88 vehicles be provided on the property. A
parking lay-out plan must be submitted to the Director:
Planning and Economic
Development Services for evaluation and approval before the owner can act on the
approval.”
coupled with an allegation that the approval referred to therein had not be
obtained.
11] The magistrate in his judgment studiously refrained from making any
reference to annexure “G” or any factual averments
that had been
made on the basis thereof. The reason therefor transpired from Advocate
Vismer’s heads of argument namely, that
it had been held to be
inadmissible after he had objected to the appellant amplifying his case in
reply. Advocate Fagan who argued
the appeal on behalf of the appellant but -
unlike Mr Vismer, had not appeared at the trial in the court
a quo
-
accepted the correctness of his colleague’s version despite the fact that
the ruling did not form part of the record of
the proceedings placed before us.
In the absence of the exact terms of the ruling the reasons for its disallowance
must be sought
in principle. An applicant must make out his/her/its case in the
founding affidavit and is not permitted to supplement it in the
replying
affidavit - the purpose whereof is to deal with the averments made in the
answering affidavit - and more so, not to
make out a new case in reply (See:
Bayat and Others v Hansa and Others
1954(3) SA 547 (N) at 553 D
– E). That, however, is not an absolute rule as a court has a discretion
to allow new matter
in a replying affidavit eg where new facts previously
unknown to a deponent have come to light or where the existence of a further
ground of relief appears from the answering affidavits. Although it would
appear that the contents of annexure RPO 2 annexed to
the respondent’s
answering affidavit could have been the catalyst for the location of and the
reference to annexure “G”,
and explains its introduction in the
replying affidavit, there is no reason to believe that the magistrate failed to
properly exercise
his discretion in having disallowed the amplification of the
applicant’s case in reply. The appellant’s remedy, had
he been
dissatisfied with the magistrate’s ruling, was to have raised it as a
separate ground of appeal (See:
Dickensen v Fisher’s Executors
1914 AD 424).
As the appellant failed to do so this appeal has to be
decided on the basis that annexure “G” and the references thereto
in
the replying affidavit have been properly disallowed.
12] The
requirements for a final interdict are a clear right; an injury actually
committed or reasonably apprehended; and the absence
of an alternative remedy
(See:
Lawsa,
Volume 11, paragraph 309). On my understanding of the
magistrate’s judgment he appears to have found that the appellant failed
to prove one or more of such requirements on a balance of probabilities, despite
the fact that he appears to have informed himself
at the outset that the outcome
of the application was dependant upon whether the respondent was in law required
to obtain the approval
of the Municipality of Stellenbosch before constructing
the paved parking area on his property.
13] As the magistrate disallowed evidence of the fact of and the
contents of the conditions on which the respondent’s rezoning
application
had been approved, the outcome of that enquiry depended on his view of the true
meaning of the definition of the word
“building” in section 1(a) of
the Act. The magistrate after an analysis of the said definition concluded that
the concepts
“erection” and “erected” used therein
informed the meaning of “building”, rather than the
concept
“structure”, which he considered “carry the ordinary
meaning”. Although the magistrate on the
basis of that perception of the
definition of “building” appears to have shared the view expressed
in annexure RPO 2
namely, that “... a parking lot is not regarded as a
building construction interms (sic) of the above mentioned legislation”
and that conclusion should have put an end to the enquiry, he paradoxically
found:
“5 That approval is necessary prior to construction of a parking
lot”
14] The definition of “building” in section 1(a) of the Act is as
follows:
“ “building” includes –
any other
structure, whether of a temporary or permanent nature and irrespective of the
materials used in the erection thereof, erected
or used for or in connection
with –
the accommodation or convenience of human beings or animals;
the manufacture, processing, storage, display or sale of any goods;
[Sub-para. (ii) substituted by s. 1 (b) of Act No. 62 of
1989.]
the rendering of any service;
the destruction or treatment of refuse or other waste materials;
the cultivation or growing of any plant or crop;
any wall, swimming bath, swimming pool, reservoir or bridge or any other
structure connected therewith;
any fuel pump or any tank used in connection therewith;
any part of a building, including a building as defined in paragraph (a), (b)
or (c);
any facilities or system, or part or portion thereof, within or outside but
incidental to a building, for the provision of a water
supply, drainage,
sewerage, stormwater disposal, electricity supply or other similar service in
respect of the building; “
15] In my opinion the use of the word “includes” (the equivalent
whereof in the Afrikaans text of the Act is “ook”
which according
to HAT means “bowendien”) in conjunction with
“building” - if viewed against the nature
of the various other
structures enumerated therein - signifies an intention on the part of the
legislature to have extended or
enlarged the ordinary meaning thereof (See:
Jones & Co v Commissioner for Inland Revenue
1925 CPD 1
at 5).
That such an extended meaning was intended is apparent from the fact that it not
only encompasses “any other structure
... erected or
used
for or
in connection with (i) the accommodation or
convenience
of human beings
...” (the underlinings are my own) but also the nature of the structures
enumerated in the definition of
“minor building work” in the
regulations promulgated in
Government Gazette 12780
of 12 October 1990
in terms of section 17(3)(b) of the Act eg. a freestanding wall constructed of
masonry, concrete or timber or
any wire fence with such wall or fence not
exceeding 1,8 meters of height and also a pergola.
As the concept structure has not been defined it must similarly be given its
ordinary everyday dictionary meaning which is “a
building or other object
constructed from several parts” (
The Concise Oxford English
Dictionary
); “the arrangement and inter-relationship of parts in a
construction, such as a building” (
Collier’s English
Dictionary
); “manner of building or construction; the way in which
an edifice, machine etc is made or put together” (
The Shorter Oxford
English Dictionary on Historical Principles
); and “something built
or constructed, as a building, bridge, dam etc” (
The Random House
Dictionary of the English Language
). Although the concept
“structure” includes a building it is a concept of much wider import
(See:
Ko-operatieve Wynbouwers Vereniging van ZA Bpk v Industrial Council
for the Building Industry and Others
1949(2) SA 600 (AD) at 611) and in its
wide sense means anything which is constructed or put together, articles put
together to
form one whole form of structure (See:
Mhleko v Germiston
City Council
1959(3) SA 447 (T) at 447 H or “... anything which is
constructed; and it involves the notion of something which is put
together
consisting of a number of different things which are so put together or built
together” (per Humphreys J in
Hobday v Nicol
1944(1) All ER
302 at 303 quoted with approval by Holmes JA in
Mohr v Divisional Council,
Cape
1976(2) SA 905 (AD) at 918 F).
It is apparent from the photographs of the paved area annexed to the papers that
it consists of building bricks of unequal size placed
in a discernable pattern
on levelled (and presumably compacted) ground and embedded in mortar. In my
view the said paved area clearly
falls within the every-day dictionary meaning
of “structure”. It is apparent from the contents of annexure RPO2,
as
well as the averments in the respondent’s answering affidavit, that the
said area is intended for the use of guests frequenting
the respondent’s
guest house. It, on the facts, to me appears to be axiomatic that the paved
area is intended to be used for
or “in connection with” - a term
devoid of a precise meaning but capable of covering the whole spectrum of
relationships
from a close and direct one to a remote and indirect one (See:
Administrator Transvaal and Another v J van Streepen Ltd
1990(4) SA
644 (A) at 656 G – I) - the accommodation or the convenience of human
beings. I accordingly incline to the view
that, on the facts of the instant
case, the paved brick area that formed the subject-matter of the interdict in
the court
a quo
falls within the definition of building in section 1(a)
of the Act.
16] Section 4(1) of the Act provides as follows:
“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.”
17] It is apparent from that sub-section that the written approval of a local
authority is required only for “buildings in
respect of which plans and
specifications are to be drawn and submitted
in terms of this Act
”
(the underlining is my own). Neither the Act nor the regulations promulgated
thereunder specify the buildings in respect
whereof plans and specifications
must be drawn and submitted, but it would appear from a perusal of the
provisions of that Act that
such plans and specifications need not be submitted
in respect of all buildings. The Minister of Economic Affairs and Technology
may in terms of subsection 2(2) of the Act, by notice in the Gazette and on such
conditions as he may think fit, exempt specified
areas within local authorities
from the application thereof; in terms of subsections 2(4); (5) and (6) of the
Act buildings erected
by the State may be exempted; in terms of section 13 of
the Act a building control officer may in respect of “minor building
works” as defined in the regulations, inter alia, exempt an owner from the
obligation to submit a plan in terms of the Act;
and in terms of section 18 of
the Act a local authority or a council as defined in section 1 of the Standards
Act, No 30 of 1982,
may at the request in writing of an owner, permit a
deviation for grant an exemption from any applicable national building
regulation,
except as regards the strength and stability of buildings. What in
particular is of significance is that in terms of paragraph (g)
of the
definition of “minor building work” a building control officer may
categorise the erection of any building as
such, and in terms of section 13 of
the Act, exempt an owner from submitting plans or approval where
“the nature of the erection is such that in the opinion of the building
control officer it is not necessary for the applicant
to submit with his
application plans prepared in full conformity with the
regulations”
18] Other than that it is clear that the State was not involved in the
construction of the paved area, not even an iota of evidence
has been advanced
by the appellant to exclude the possibility that any of the aforementioned
provisions find application. In the
absence of any averments to that effect it,
on the facts before the magistrate, could not have been found that the paved
area in
question constituted a building in respect of which approval had to be
obtained in terms of the Act. In that regard it needs to
be accentuated that
the
onus
to have shown an entitlement to an order, on a balance of
probabilities, rested on the appellant and that there was no onus whatsoever
on
the respondent to have established facts that negated the appellant’s
entitlement to relief (See:
Free State Gold Areas Ltd v Merriespruit
(OFS) Gold Mining Co Ltd
1961(2) SA 505 (W) at 524).
18] In the circumstances I have come to the conclusion that the
appellant failed to show that the respondent was in law required to
have
obtained approval from the Stellenbosch Municipality prior to commencing with
the construction of the paved parking area and
that the magistrate correctly
refused the application, but for different reasons.
19] Adv Vismer
conceded that the magistrate had misdirected himself as regards the basis upon
which he awarded costs against the appellant
on an attorney and client scale but
nevertheless urged us to reinstate it as the respondent was compelled to answer
an inappropriate
and procedurally misconceived application; had to deal with it
on short notice; and was obliged to do so in order to protect his
interests.
He relied heavily on the submission that the appellant had failed to include
material facts in his founding affidavit
namely, that he had approached the
Stellenbosch Municipality for relief and had not yet received a reply by the
time he launched
the application. The alleged material information pertains to
the letters referred to in the first paragraph of Annexure RPO 2.
As those
letters have not been placed before the court by the respondent either and their
contents are not known there is no basis
upon which this court could arrive at
adverse conclusions as regards the propriety or otherwise of the
appellant’s alleged
conduct. In the circumstances I incline to the view
that no basis has been shown for reinstating the magistrate’s costs
order.
20] In the circumstances the appeal against -
20.1 the refusal of the application is dismissed;
20.2 the
order directing the appellant to pay the respondent’s costs on an attorney
and client scale succeeds.
Accordingly the magistrate’s costs order is deleted and substituted
with the following order:
“the applicant is ordered to pay the first respondent’s costs on an
party and party basis.”
20.3 As
the appeal was successful in part only it is ordered that each of the parties
shall be liable for the payment of his own costs
on appeal.
______________
D. VAN REENEN
YEKISO, J:
I agree.
__________
N.J. YEKISO