Dorland and Another v Smits (A 629/2001) [2002] ZAWCHC 20; [2002] 3 All SA 691 (C) (24 April 2002)

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[2002] ZAWCHC 20
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Dorland and Another v Smits (A 629/2001) [2002] ZAWCHC 20; [2002] 3 All SA 691 (C); 2002 (5) SA 374 (C) (24 April 2002)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
Appeal Case
No.:
A 629/2001
In the
appeal between:
CORNELIS
DORLAND
First Appellant
YVETTE
DORLAND
Second Appellant
and
ANNA
ALETTA SMITS Respondent
________________________________________________________________
JUDGMENT
DELIVERED ON THE
24
TH
APRIL 2002
________________________________________________________________
COMRIE
J. :
The
appellants and the respondent are neighbours. The appellants jointly
own and occupy no. 53, Palmyra Road, Claremont. They live
there with
their young children. On part of the property, furthest from the
respondent, the first appellant conducts a veterinary
practice. The
respondent owns no. 55, where she resides with her husband, who is an
engineer. Among their visitors are their young
grandchildren. The
area is a built-up residential suburb which is variously described by
the respondent in the papers as “upmarket”
or “middle-class”.
The two
properties are divided by a boundary wall or walls, about 32 metres
in length. Starting at the roadside the wall is a Columbia
block
wall some 20 metres long and 2,1 metres high. Thereafter, at the
rear of the properties, there is a vibracrete wall some 12
metres
long. It appears from the photographs to be a few centimetres
shorter than the block wall. The vibracrete wall is located
entirely
on no. 53, the appellants’ property. The Columbia block wall was
constructed at the respondent’s instance and expense
in about 1980.
It straddles the boundary, but most of it is located on the
respondent’s side. According to her husband’s calculation,
only
12.3 % of this wall is on the appellants’ side of the boundary.
The
respondent’s property, no. 55, was re-modeled in the early 1980’s
to a design by the noted architect, the late Prof. Roelof
Uytenbogaardt. The block wall is an integral part of the design,
joining the interior and exterior of the house in a special way.

Thus the rooms have no curtains. The house has been featured at an
exposition and in more than one magazine. At and near the common
boundary are various trees, plants, creepers and part of a grapevine;
they are tended by the respondent and her gardener. Gardening
is
one of the respondent’s pastimes. Her grandchildren, when they
visit, like to climb in the trees near the wall.
At about 6
pm on 17 December 1999, an intruder gained access to the appellants’
kitchen. They suspect that he either entered or
exited the property
by climbing over the block wall at or near the respondent’s front
gate, a suspicion which is gainsaid by the
respondent. Be that as it
may, the appellants, being concerned about their own and their
children’s safety, immediately consulted
security experts. They
also spoke to the respondent at a stage when the installation of
galvanised security spikes along the top
of the walls was under
consideration. The respondent was amenable to some sort of spikes.
But the appellants were advised that
spikes would not be adequate,
and that they should rather install electrified fencing along all
four boundaries of their property.
The appellants accepted and acted
on this advice.
Along the
boundary walls between no’s 53 and 55, stanchions or posts were
affixed by the contractors to the appellants’ side
of the wall.
These stanchions protrude half a metre or more above wall height and
carry nine strands of electrified wire. Attached
to the wires are
large warning signs. Initially five strands were installed but the
appellants, acting on advice, later increased
the strands.
Electrified wiring of varying heights has been installed on all of
the appellants’ boundary walls.
The
respondent objected to the electrified fencing. Correspondence
between the attorneys ensued but failed to resolve the matter.
The
respondent thereupon instituted proceedings on notice of motion in
which she sought an order that the appellants –
“1.1. remove the electrified fence (including all wires, supporting
poles and signs) erected on the Columbia block wall separating
erf
55726 and erf 55725 Cape Town situate at Claremont, and;
remove
the electrified fence (including all wires, supporting poles and
signs) erected on the precast vibracrete wall separating
erf 55726
and erf 55725 Cape Town situate at Claremont;
restore
the Columbia block wall to the condition that the wall was in prior
to the erection of the electrified fence;
restore
the precast vibracrete wall to the condition that the wall was in
prior to the erection of the electrified fence;
effect
the removal of the electrified fence and the restoration of the
aforesaid walls at their own cost; and
effect
the removal of the electrified fence and the restoration of the
aforesaid walls within a period of two weeks from the date
of the
order granted by the above Honourable Court.”
The application, which was opposed, was heard by
Ngwenya J
who on
28
February 2001 granted an order as prayed with costs. The appellants
now appeal against the judgment of
Ngwenya J
, with leave
granted by the Chief Justice. The two contentions which appear to
have prevailed at first instance are:
that
“putting the electrified fence on the common wall constitutes what
Ebden J
in
Pike v. Hamilton, Ross & Co
(1852) SC
191
at 198 referred to as having monopolised the whole of the common
wall”; and
that
the electrified fence was dangerous (to the respondent, her gardener
and visitors) or “at the very least is potentially dangerous”.
The learned
Judge found, however, that the appellants had acted “in good faith
with the view of
(sic)
protecting their own children and their
own property”; but that they had in the process infringed the
right of their neighbour,
the respondent, “with whom they have
common and equal responsibility and rights towards the common wall.”
Among the
contentions debated in the affidavits were alleged contraventions of
three regulations. The first was Electrical Machinery
Regulation No.
11 promulgated in terms of the
Occupational Health and Safety Act 85
of 1993
. This regulation deals with electrified fencing in
residential areas. According to Mr. van Tonder, whose evidence I
shall summarise
below, the installation under review complies fully
with the requirements of the regulation. His evidence on this point
is uncontroverted.
No reliance was placed on the regulation by the
respondent’s counsel, Mr.
Brown
, on appeal. I shall not
therefore discuss it further.
The second
regulation was a municipal bye-law regulating the height of boundary
walls and fences. The maximum height for present
purposes is 2.1
metres, which is the height of the Columbia block wall. It was
contended for the respondent on the papers that the
electrified
fencing extended the height of the wall beyond the permissible limit.
The evidence of Mr. Griffiths, who is the manager
of the relevant
municipal department, is to the effect that his directorate does not
require plans to be passed for the installation
of this kind of
security device. Planning permission was accordingly neither sought
nor obtained in this instance. Again, the respondent’s
contention
was not pursued on appeal, and I shall say no more about it.
The third
alleged contravention was of a municipal building bye-law dealing
broadly with nuisance. This contention was not raised
in Mr.
Brown’s
heads of argument, but it was resurrected by him during oral argument
and in further written submissions made by him on behalf of
the
respondent after the hearing before this court. I shall come to
this alleged contravention in due course.
There is a
dispute on the papers about the safety or otherwise of the area in
which the parties reside. The second appellant, citing
chapter and
verse, states that the “area experiences a serious crime problem”.
The respondent, while conceding the existence
of a general crime
problem from which her area is not exempt, states: “However, I
deny that crime is a major problem in our area.”
To the extent
that there is a dispute of fact in motion proceedings, it must be
resolved in favour of the appellants (who were respondents
a quo
).
Whatever the degree of the admitted problem, it is part of the
respondent’s case that the appellants over-reacted to the intrusion
of 17 December 1999 and did so to the consequent prejudice of the
respondent. Neighbourly consultation does not seem to have got
very
far, but no purpose will be served by attempting to apportion blame.
Mr. van
Tonder is a specialist in the installation of electrified fences. By
March 2000 he had installed such fencing at some 300
residential
properties in the Western Cape. His firm installed the fencing now
in dispute. He explains:
“4 The
technicalities of the system installed are briefly as follows:
Strands
of fully galvanised 1 mm braided steel cable are positioned around
the perimeter of a property and held in place by hollow
galvanised
posts at the corners and hollow aluminium intermediate posts along
the length of the installation.
Each
corner post is 32 mm square galvanised tubing. The intermediate
posts consist of 15 mm square hollow aluminium. The cable
is held
in place by plastic insulators.
The
current is supplied by a small battery similar to batteries which
are supplied with alarm systems. The system is not connected
to
the mains save that the battery is charged from the mains.
The
current from the battery travels through an energiser which steps
up the voltage but, for the sake of safety, reduces the
amperage.
The effect is to have a high voltage but zero amperage current
flowing through the system.
As a
further safety feature the current is not continuous but pulsates
at intervals through the system.”
Mr. van Tonder points out that the model under review (the MEPS 122)
has been
tested by the S.A. Bureau of Standards and approved. He points out
further:
“6.1 The SABS permits an open voltage of 10 000 volts whilst the
MEPS 122 operated at 7 600 volts, lower than the SABS specification
permitted.
The
SABS limits the impulse duration to 0.1 second whilst the impulse
duration of the MEPS 122 is 0.2 milliseconds.
The
impulse interval that the SABS requires is greater than or equal to
1 second and the MEPS 122 has an impulse interval of 1.2
seconds.
In
all respects the components are well within the safety standards of
the South African Bureau of Standards.”
Mr. van Tonder states:
“Signs have been placed in various positions along the length of
the wires in compliance with
Regulation 11(6)(b)
which provides that
the user shall ‘
display notices conspicuously, warning people
that the property is protected by an electrified fence’.
”
The deponent
maintains that the respondent’s concerns as to the dangers posed by
the installation are unfounded. He says:
“12.2 The installation is designed to deliver a high voltage shock
which is intermittently pulsed through the system and which
has the
effect of physically knocking back or repelling contact with the
wires. As a safety feature and to ensure that the shock
is
non-lethal the amperage of the current is reduced to zero.
Were
a system to be potentially lethal it would certainly never be
permitted in terms of the safety parameters set by the South
African Bureau of Standards. In the unlikely event of an
individual inadvertently making contact with the installation the

individual would be physically repelled by the system and in the
process suffer a high voltage shock which would have no lasting
or
damaging effect.
The
system is designed in such a way that it can readily be switched
off by the user. Should there be a need to prune, pick fruit
or
work in particularly close proximity to the installation the system
can be switched off for that purpose.”
At para. 17 of his affidavit Mr. van Tonder explains how
five strands
became
nine:
“Initially the
boundary wall was equipped with five strands of wire. At the places
where access was possible by means of utilising
an abutting gate or
pillar as an access point the number of strands was increased, at
those points only, to nine strands. Applicant’s
photograph,
‘AS.23’, depicts the initial installation of five strands
increasing to nine strands at the points where a person
climbing upon
a gate could gain access by stepping over the five strands. This
installation looked untidy and tended to pull to
one side by virtue
of the strands not running in a straight line. For this reason it
was decided to replace this installation with
a standard nine strand
installation. This was done.”
I turn to
the highlights of the respondent’s case. A significant complaint
is the negative impact of the installation on the aesthetic
appeal of
the respondent’s house and garden. This is illustrated by the
photographic evidence. The stanchions and wires are not
pretty, and
the warning signage is in my opinion an eyesore. It is so that some
of the wiring is or will be masked by foliage.
Nonetheless I think
it should be accepted that, particularly in the area of the Columbia
block wall, having regard to the special
architectural design and to
the carefully cultivated garden, there has been a marked loss in
aesthetic quality. At this personal
level the respondent is the
loser. Four estate agents, none of them on oath, are divided on the
effect on the market value of the
respondent’s property. The
respondent’s two agents say that the installation advertises a
security risk which will deter buyers.
The appellants’ two agents,
per contra
, claim that in these times the additional security
is a good selling point.
Secondly,
the respondent complains of the dangers inherent in an installation
which is designed to produce a repellant, albeit non-lethal
shock.
Her gardening activities, and the climbing ambitions of her
grandchildren, in the vicinity of the boundary walls, must perforce
be curtailed for fear of inadvertent contact with the electricity,
even though the installation is technically on the appellants’
side
of the common boundary. This is a risk run by the respondent or her
gardener when they wish to trim the foliage, or prune the
lemon
tree, or pick grapes, near to the walls. Furthermore, they use a
metal ladder. Occasionally, the walls are hosed down giving
rise, I
apprehend, to the prospect of a jumped electric spark. The
appellants dispute that the grandchildren commonly climb near
the
wall, and they suggest that the frangipani tree in its upper reaches
is in any event unsuited to such activities. The appellants
offer,
when gardening activities so require, to switch off the current on
request. In the presently strained relationship, this
conjures up
the idea of diplomatic notes passing between neighbours. But the
suggestion is not impossible of practical implementation.
The
appellants further suggest that the respondent should exchange her
metal ladder for a wooden one. The respondent retorts that
this just
goes to show how the appellants are monopolising the walls: she, the
respondent, must now ask for the current to be switched
off, and she
is expected to change her ladder.
The papers
deal at some length with an umbrella with a metal tip. The fear is
that when it rains, and the respondent collects her
post or greets
guests at the front gate, then the umbrella’s metal tip may
inadvertently come into contact with electrified wiring,
with painful
results. The appellants point out that the wiring is almost
inaccessible in these circumstances; it is located 2,1
m from the
ground on the other side of the block wall. Mr. van Tonder adds that
the wooden or plastic handle of the umbrella provides
adequate
protection against a shock.
In addition
to the municipal bye-law, these then represent the main thrusts of
the respondent’s case: aesthetics and danger.
The test on appeal
Mr.
Brown
submitted that the decision of the Court
a quo
was in
substantial measure discretionary. He argued accordingly that our
power to interfere on appeal was in some way curtailed.
Mahomed
v. Kazi’s Agencies (Pty) Ltd and Others
1949(1) SA 1162 (N);
Ex parte Neethling and Others
1951(4) SA 331 (A);
Tjospommie
Boerdery (Pty) Ltd v. Drakensberg Botteliers (Pty) Ltd and Another
1989(4) SA 31 (T). Compare
Media Workers Association of South
Africa and Others v. Press Corporation of South Africa Ltd
(‘Perskor’)
1992(4) SA 791 (A) at 797 G. Mr.
Brown
readily conceded, however, that if the Court
a quo
materially
misdirected itself, then it would be for this Court to exercise such
elements of discretion as might be involved. Since
I am satisfied
that there were material misdirections in the judgment of the court
a
quo
(see
infra)
, it is unnecessary to consider to what
extent, if at all, our power on appeal may otherwise have been
inhibited.
The misdirections
Ngwenya J
held that “both walls namely the vibracrete wall
and the Columbia block wall were meant by both parties to be party
walls.”
This finding did not rest on any assertion that the two
walls in fact constituted one wall, i.e. two parts of a single wall
32 metres
in length. On the contrary the parties treated them in the
affidavits as two discrete walls, and it is clear on the evidence
that
the parties regarded them as boundary walls, not as party walls
(see
infra
). The respondent in particular framed the relief
sought upon the basis that two walls were in issue. Inasmuch as the
vibracrete
wall lay (and lies) entirely upon the appellants’
property, they were entitled, subject to questions of nuisance, to
monopolise
it; it was and is their wall to monopolise. It was not a
case of “common and equal responsibility and rights”. To the
extent
that the judgment rested upon (an improper) monopoly of the
vibracrete wall, the conclusion was in my opinion erroneous.
Furthermore,
I respectfully disagree with the conclusion that the appellants had
effectively monopolized both walls. I have summarized
the substance
of the respondent’s complaints. Despite her assertion of a
monopoly, it is clear to me that no such state of affairs
exists.
There are many uses to which the respondent can put her side of the
walls. At most for her it can be said that her usage
has been
potentially restricted for reasons of safety.
The learned
Judge said: “From the evidence at my disposal the electrified
fence straddles from the middle of the party wall upwards.”
That
is factually incorrect. The posts and the strands of wire are
affixed to the appellants’ side of the wall, and the block
wall is
190 mm wide (380 mm at the pillars). I am not satisfied that this
misdirection influenced the result, and I am accordingly
not
satisfied that it was material. But I am of the view that the
misdirections set forth in the two preceding paragraphs were
material.
Rights in the walls
A party or common
wall is one which stands partly on one property and partly on the
adjoining property. As indicated earlier, the
evidence does not
support the conclusion that the parties treated the walls as party
walls in this sense. Indeed, the respondent
initially averred,
through her first attorneys, that the walls were built wholly on her
property and that therefore her consent was
required for the
“attachments” (which consent she refused). Thereafter, through
her new attorneys and in the light of the land
surveyor’s report,
she modified her assertion, namely to the effect that the block wall
straddled the common boundary to such
a small extent that it in
reality belonged to her. For this and additional reasons she
re-iterated this view in her founding affidavit.
On the other hand
there is no evidence before the Court that, prior to the events
giving rise to this case, the appellants ever
applied their minds to
the distinction between a boundary wall and a party wall, or even
that they were aware of it.
On appeal
Mr.
Brown
did not seek to support the contention that the
Columbia block wall belonged to his client. He correctly accepted
that it was a
party wall
stricto sensu
. He also accepted that
both the appellants and the respondent enjoyed rights to the usage of
this wall up to the median line, notwithstanding
that only 12.3% of
the wall stood on the appellants’ property. Van der Merwe:
Sakereg
(2 ed) at 390 – 3. A limitation on the aforegoing
right is that one owner, by his or her use of the wall, may not
(unreasonably)
prejudice his or her neighbour.
Ibid
at 392 –
3;
Law of South Africa
(ed Joubert), vol 27, para 214. Mr.
Brown
submitted that such prejudice would include more than
physical damage to the wall or a threat to its structural integrity.
More
specifically, it would include complaints of the kind relied
upon by the respondent. In my view the authorities do not bear out
this contention except on the basis of nuisance. It is to this topic
that I accordingly next turn.
Nuisance and aesthetics
The law
does not permit an owner (or occupier) of property to use it
unreasonably, that is to say to the undue detriment of his or
her
neighbour’s enjoyment of the latter’s own property. (Neighbour
here is not confined to next door neighbour). Such improper
usage,
if continuing or likely to be repeated, may be interdicted as a
nuisance; if accompanied by
culpa
and loss, it may form the
basis for an action in damages.
Law of South Africa
(ed
Joubert) vol 19 (first re-issue) para 214, 218. All this is trite,
and many examples are to be found in the case law and in the
textbooks.
Earlier in
this judgment I said that the “stanchions and wires are not pretty
and that the warning signage is in my opinion an
eyesore.” That,
of course, is a personal reaction based on the photographic evidence;
it is an aesthetic opinion which may or
may not be shared by others.
This brings to the fore the question, debated in argument, whether
aesthetic considerations play any
role in the law relating to
neighbours and nuisance. Prof. Milton, writing in the
Law of
South Africa
(ed Joubert) vol 19 (first re-issue) para 209, gives
a negative answer and cites two early English cases in support. Mr.
Brown
was unable to refer us to a single decision of our
Courts since the Charter of Justice holding, or favouring the view,
that aesthetics
are relevant at all. Nor have I found one. The
ratio
of
Vanston v. Frost
1930 NPD c21
(heightening of
fence) is not strictly in point; nor is the
ratio
of
Paolo
v. Jeeva N.O. and Others
2002(2) SA 391 (D) (magnificent view
impeded by erection of dwelling on adjacent property). It is true
that this may in part be
due to the strong influence of English law
in this sphere for more than a century; for this reason it may have
become part of our
received law. The trouble with aesthetics, visual
or other, is that they are notoriously subjective and personal.
De
gustibus
. I should think it difficult enough to get any group of
persons with similar backgrounds and qualifications to agree on what
constitutes
a worthwhile work of modern art. Extend this
exponentially to the general population, and the ambit of diverse
tastes, of likes
and dislikes, becomes almost infinite. I consider
this to be an area into which as a matter of judicial policy the
courts should
not venture. As it was put by the California Court of
Appeal, third district, in
Oliver et al v. A T&T Wireless
Services et al
(1999):
“Otherwise, one
person’s tastes could form the basis for depriving another person
of the right to use his or her property, and
nuisance law would be
transformed into a license to the courts to set neighborhood
aesthetic standards.”
I conclude,
therefore, that purely aesthetic considerations are irrelevant in the
common law relating to nuisance and neighbours.
To borrow again from
the same Californian judgment, while I have “sympathy for the
[respondent’s] plight, not all plights give
rise to legal rights.”
Nuisance and danger
It
may be accepted that danger, or potential danger, emanating from one
property to a neighbouring property, may constitute a nuisance.
But
the presence or threat of danger is not a nuisance
per se
. It
is a question of degree. The enquiry is whether the offending owner
is acting unreasonably in all the circumstances. Reasonableness
in
this context is to be assessed objectively.
Regal v. African
Superslate (Pty) Ltd
1963(1) SA 102 (A);
Law of South Africa
,
supra, para 189. Compare Van der Merwe:
Sakereg
(2 ed) at
190. The test is sometimes formulated in this way: whether the
offending owner’s conduct exceeds what the complainant
owner can
reasonably, and objectively, be expected to tolerate or forebear?
Lawsa, ibid.
That seems to me to be an appropriate test to
apply in the present appeal. In doing so we must weigh the gravity
of harm suffered
against the utility of the conduct causing the harm.
I have
recorded that the parties reside in a “middle-class” or
“upmarket” suburb. The first appellant is a professional
man, as
is the respondent’s husband. It appears that the area is not free
from crime. The appellants have a legitimate interest
in protecting
their property and family against intruders, and against a repetition
of what happened on 17 December 1999. For them
to have taken some
measure to improve their security is an understandable reaction on
their part and not in principle unreasonable.
It appears from the
affidavit of Mr. van Tonder that the measure chosen, electrified
fencing, is becoming increasingly common.
The choice of this
security measure in a residential area cannot be regarded nowadays as
extreme in my view, even though many owners,
similarly placed, may
prefer to settle for less if they can.
The
respondent has a legitimate interest in pursuing her pastime of
gardening. It is a normal incident of residential ownership
and one
which many owners hold dear. She is also entitled to enjoy the
visits by her grandsons, and to allow them (responsible)
free rein in
the garden. I have already accepted that the presence of the
electrified fencing curtails the aforegoing activities
to some extent
in the vicinity of the boundary walls. The issue, as I see it, is
whether such curtailment is more that the respondent
can reasonably,
and objectively, be expected to forebear in the circumstances. In
this connection a point of some significance was
raised by the bench
during argument. It is this: that, aesthetics aside, no part of the
electrified fencing intrudes upon or over
the respondent’s
property. It is not like noise, or odour, or smoke, or gases, or
falling leaves, or seeping water which come
on to the complainant’s
property or which are deemed to do so. On the contrary the danger
only arises when the respondent, or
her gardener, or her grandsons
intrude (actually or by extension) on or over the appellants’
property, albeit inadvertently. It
is perhaps not too much to ask of
the respondent that she takes care to keep to her side of the common
boundary, and that she takes
steps to ensure that her grandsons and
her gardener do the same. Added to this is the fact that the
appellants have offered to switch
off the current on request at
appropriate gardening times. The genuineness of this offer is not
disputed, although I appreciate
that the respondent would rather not
labour under a consequent sense of obligation to her neighbours.
Swapping the metal ladder
for a wooden one would entail no great
expense; it is not an unreasonable suggestion. The umbrella
complaint is, I consider, a
makeweight.
It seems to
me to make little material difference whether the installation
comprises five strands or nine. The potential danger
remains much
the same. The alternative of steel spikes would reduce the risk in
some respects, but might conceivably be worse for
the grandsons,
should they fall. Had spikes been installed, I would expect the
respondent, as a responsible grandparent, to have
forbidden them to
climb in the vicinity of the boundary walls.
Weighing
everything in the balance I have reached the conclusion that the
appellants’ conduct represents a proper exercise of their
rights of
ownership of no. 53, that it does not exceed what the respondent can
reasonably be asked to tolerate, and that it should
not be
characterised as objectively unreasonable. It follows that I do not
find that the appellants have created a nuisance on the
common
boundary with no. 55.
The municipal bye-law
The bye-law in question was promulgated by the
Cape Town City Council in Provincial Gazette no. 4672, dated 23
November 1990.
Section 2(1)
provides:
“2(1) No person
shall in any building or on any land do any work or put any building
or land to a use calculated to depreciate or
disfigure property, or
to interfere with the convenience or comfort of the neighbours or to
become source of danger.”
It is a question of interpretation whether a statutory provision of
this kind intends to confer a right of action (sometimes called
a
statutory right) on a private individual such as the respondent.
Patz v. Greene & Co.
1907 TS 427
;
Callinicos v. Burman
1963 (1) SA 489
(A) at 497 – 8;
Da Silva and Another v.
Coutinho
1971(3) SA 123 (A) at 134
ff
. Compare
Faircape
Property Developers (Pty) Ltd v. Premier, Western Cape
2000(2)
SA 54 at 65 – 6.
Sections
2(3)
and
2
(4) provide:
“2 (3) Before any criminal or civil proceedings are
instituted by the
Council against any person under subsection (2) read with subsection
(1), the Council shall serve upon such person a notice in writing
and
in such notice shall set forth with reasonable particularity the
facts which in its opinion constitute such contravention or
non-compliance and the things to be done (if any) within a time to be
specified in such notice in order that such contravention or
non-compliance shall cease.
(4) Nothing in this section contained shall be construed as
preventing any person other than the Council from instituting
criminal
or civil proceedings under subsection (2) read with
subsection (1), as the case may be, in any case in which the Council
after due
request certifies that it declines to issue any notice
referred to in subsection (3).”
It appears to me that sub-sections (3) and (4)
furnish a clear answer: namely, that a person such as the respondent
may enforce
s. 2(1)
, criminally or civilly, provided the Council,
after due request, certifies that it declines to issue the requisite
notice. It was
incumbent on the respondent, as the applicant in the
Court below, to make this allegation. The best evidence invoking the
bye-law
would have been to annexe the Council’s certificate to her
founding affidavit. She failed to do so. From the relatively short
time which elapsed prior to the institution of these proceedings, I
infer that she probably never approached the Council in this
regard.
Be that as it may, there is no certificate before the Court, nor an
allegation that one was refused.
It follows
that the respondent must fail on this leg of the case because on the
papers she has acquired or derived no personal right
of action from
the bye-law. It is accordingly unnecessary for us to determine the
meaning and scope of the bye-law itself, and I
express no views on
that topic.
Conclusion
(and costs)
For all
the aforegoing reasons I conclude that the Court
a quo
erred
in granting the order prayed; and that the application should have
been refused with costs. The appeal must therefore succeed
with
costs subject to the following qualification. The record on appeal
unnecessarily incorporated the petition to the Chief Justice
for
leave to appeal, and the affidavits opposing leave. Mr.
Webster
,
for the appellants, conceded that the costs appertaining thereto
should be disallowed.
Order
The order is in the following terms:
The
appeal succeeds with costs, including the costs of the applications
to the Court
a quo
and to the Supreme Court of Appeal for
leave to appeal;
The
costs associated with incorporating pp. 253 – 324 in the record of
appeal are disallowed;
The
order granted by the Court
a quo
is set aside and replaced by
an order that the application be dismissed with costs.
R.G. COMRIE
JUDGE
I
agree.
W.J. LOUW
JUDGE
I
agree.
B.J. VAN HEERDEN
JUDGE
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
Appeal Case
No:
A629/2001
In the appeal between:
CORNELIS
DORLAND
First Appellant
YVETTE
DORLAND
Second Appellant
and
ANNA
ALETTA SMITS Respondent
________________________________________________________________
Appellant’s
Advocate : Adv. A.C. Webster
Appellant’s
Attorney : Messrs.Dercksen & Company
(Ref:
H.R. Jordaan)
Respondent’s Advocate : Adv. A.D. Brown
Respondent’s
Attorney : Messrs. C.K. Friedlander
Shandling & Volks Inc.
(Ref:
J. Blignaut)
Date of
Hearing : 1 February 2002
Date of
Judgment : 24 April 2002