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[2024] ZALMPPHC 105
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Seshoene v Masogo and Others (707/2014) [2024] ZALMPPHC 105 (30 August 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 707/2014
(1)
REPORTABLE: YES/
NO
(2)
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED
DATE: 30 August 2024
SIGNATURE:
In the matter between:
MOKGADI ANNISA
SESHOENE
APPLICANT
And
NAPE PHINEAS
MASOGO
FIRST RESPONDENT
MAHLODI WILHEMINA
MASOGO
SECOND RESPONDENT
THE LOCAL MUNICIPALITY OF
POLOKWANE
THIRD RESPONDENT
JUDGMENT
MULLER J:
“
The
pound of flesh, which I demand of him,
Is
dearly bought; ‘tis mine, and I will have it.”
[1]
[1]
These words provide an apt description what the purpose of this
application is. The
applicant is the owner of Erf 1[...].
[2]
The respondents
[3]
are the
owners of an adjacent property described as Erf 1[...].
[4]
A garage erected by the respondents is encroaching the property of
the applicant. The applicant instituted motion proceedings for
a
declaratory order that the said garage unjustifiably and unlawfully
encroach her property and, in addition, for an order that
the
respondents be ordered to demolish the encroachment and restore the
surface area of the encroachment to its original state
as prior to
the erection of the immovable structure. The respondents seek
dismissal of the relief claimed.
[2]
As far back as 4 December 2017 Sikhwari AJ ordered that oral evidence
be presented
on the following two issues:
(a)
“
Whether the respondent (
sic
)
were notified in December 2005 that the foundation of the garage were
not to the specification of building plan resulting in an
encroachment in the applicants property; and
(b)
Whether the respondents indicated the boundary
line between the applicant’s property and the respondent’s
property.”
[3]
Regrettably, ten years have lapsed since institution of the
application in 2014. It
is unclear why it took so long for this
application to reach finalization. It was agreed between the parties
at the hearing that
heads of argument be delivered and that the court
delivers a judgment without additional oral argument. The respective
heads of
argument were delivered and filed.
[5]
[4]
It is common cause that the respondents had already been in
occupation of erf 1[...]
when the applicant purchased and took
occupation of erf 1[...]. It is the version of the applicant, on
the papers, that the
respondents during 2012 erected an immovable
structure which is utilized as a garage for a motor vehicle. When
applicant suspected
that part of the structure encroached her
property she obtained the services of a land surveyor to survey her
property to determine
if the structure is encroaching her property.
She reported the situation to the Polokwane Municipality after she
was unable to
engage the respondents.
[6]
[5]
It is undisputed that the municipality served the respondents with a
final notice
dated 16 August 2012 in terms whereof they were informed
that the structure and its foundation exceeded the boundary line in
contravention
of section 4 (Part A) of the National Buildings
Regulations and Building Standards Act.
[7]
The notice required the respondents to demolish the portion of the
structure that exceeded the boundary and to remove the building
material.
[6]
The notice was ignored by the respondents. When the municipality took
no steps to
enforce the notice the applicant constructed a boundary
wall which obstructed access to the garage of the respondents. The
respondents
instituted spoliation proceedings.
[8]
The applicant immediately demolished the wall on advice of her legal
representative. He addressed a letter of demand to the attorneys
of
the respondents to demolish their structure. No response was
received.
[7]
The respondents in an opposing affidavit acknowledged that 42cm of
the garage they
erected encroached on the property of the applicant
the cause of which was the erection of a boundary wall by the
applicant between
the two properties in 2003 whereby the applicant
determined the boundary between the properties. The respondents
assert that the
applicant refused to discuss the issue or to accept
compensation. The respondents tendered to purchase the land
encroached for
a market related price in December 2012 without
success as the applicant is adamant that the structure be demolished.
The respondents
say that they will suffer more prejudice and
inconvenience than the applicant should a demolition order be
granted.
[8]
In reply the applicant stated that when she moved into her property
the respondents
indicated to her where the boundary was between the
properties. She erected the boundary wall there on the assumption
that it was
the true boundary line between the properties. When she
decided to make additions to her property she submitted plans to the
municipality.
It only then became apparent that the improvements
cannot be implemented because of a discrepancy between the plans and
the size
of her property. She then acquired services of a land
surveyor who established the true boundary between them. The plans
submitted
by the respondents to erect a garage was not approved by
the municipality.
[9]
The applicant testified in relation to the issues referred to
evidence by Sikhwari
AJ. She stated that she purchased the property
in 2003. Her stand was overgrown with bushes. On the boundary between
her erf and
the property of the respondents stood a tin shack which
faced towards the property of the respondents which was used by them
as
a spaza shop. The area was cleared where the shack stood. She
decided to put up a fence known as a “stop nonsense”
[9]
between their properties in 2003. She explained that the fence was
“leaning against the shack”. I understood her to
mean
that the fence was erected up against the shack. When she was able to
obtain a loan to erect a garage in 2012 she discovered
after she
obtained the services of a land surveyor who established that that
the boundary wall she erected was inside her property
with the result
that not enough space remained in her property to build the garage
and that the garage of the respondents was partially
erected inside
her property.
[10]
She removed the fence between the two properties in 2013 and
commenced with the construction
of a new boundary wall on the real
boundary line but was ordered to remove it. She complied. A
photograph handed in as exhibit
depicts bricks that are stacked in a
row on the boundary where the wall should have been erected.
[11]
It was suggested to the applicant in cross-examination that trouble
started because the wall
was erected in 2003 where she assumed the
boundary was. The applicant replied that she was ignorant of the
correct position of
the boundary and acted upon acceptance that the
boundary was where the area cleared by the respondents ended.
[12]
The manager: building inspections from the municipality testified
that according to an entry
in the records of the municipality dated
19 December 2006 a foundation inspection for the erection of a garage
on erf 1[...] was
conducted but was not approved due its encroachment
on the property of the applicant. No further inspections were
conducted and
no occupation certificate was issue. The records also
showed that a letter dated 4 January 2013 was addressed to attorneys
Makwela
and Mabotja in Polokwane, who were the legal representatives
of the respondents at the time in which it was confirmed that notices
in terms of the provisions of the NBSA were issued to the
respondents. Attention was also drawn that building plans submitted
by the respondents for a garage to be erected on the boundary line
were approved on 5 October 2005. A foundation inspection was
carried
out on 19 December 2005 and the results were negative as the
foundation did not accord with the approved plans and that
no
occupation certificate was issued for the building. The
Surveyor-General diagram was also attached to the letter which
indicated
the extent of the property of the respondents for which the
plans were approved. The respondents were urged in the letter to
rectify/demolish
the building.
[13]
The first respondent testified that they moved into their property in
2002. The applicant moved
in in 2003 and erected a pre-cast wall
between them that same year without discussing it with them. They
decided to build a garage
in 2003 but only commenced with the works
in 2006 after their plans were approved in 2005. The garage was
completed in 2007. The
applicant informed him in 2012 that the garage
encroached her property. He was never informed by his erstwhile
attorneys of the
letter from the municipality addressed to them.
[14]
He averred that a building inspector came to inspect the foundation
when the builders were preparing
the foundation of the garage. The
walls of the garage were then put up. He was then informed that an
inspection will follow to
approve the walls. When he came from work
one day the builders were busy putting up the supports for the roof.
He assumed and accepted
that inspections were carried out and that
everything was in order. No occupation certificate was issued to him.
[15]
The second respondent denied that she showed to the applicant where
the boundary was between
their respective properties.
[16]
It is important to point out immediately that the provisions of the
NBSA are not applicable to
this case despite it be common cause that
at least one notice was issued to the respondents in terms of section
4 of the NBSA.
Section 21 of the NBSA provides:
“
Notwithstanding
anything contrary contained in any law relating to magistrates’
courts, a magistrate shall have jurisdiction,
on the application of
any local authority or the Minister, to make an order prohibiting any
person from commencing or proceeding
with the erection of any
building or authorising such local authority to demolish such
building if such magistrate is satisfied
that such erection is
contrary to or does not comply with the provisions of this Act or any
other approval or authorisation granted
thereunder.”
[17]
Neither the municipality nor the Minister applied for an order in
terms of the NBSA. In addition,
the case of the applicant is premised
on the common law. The principles of the common law were espoused by
the Supreme Court of
Appeal in
Fedgroup
Participation Bond Managers (Pty) Ltd v Trustee, Capital Property
Trust
[10]
that:
“…
in
Roman-Dutch law the point of departure was the same as in Roman law,
namely that if anybody suffered as a result of something
belonging to
his neighbour overhanging or encroaching on his property, he could
force the neighbour to remove it.
[11]
[18]
In
BSB
International Link CC v Readam South Africa (Pty) Ltd and Another
[12]
the same court, with reference to encroaching structures, reaffirmed
the common law position and reiterated that a court is vested
with a
discretion:
“
In
the case of encroaching structures the owner of the land which is
encroached upon can approach the court for an order compelling
his or
her neighbour to remove the encroachment …Despite the above
rule the court can, in its discretion, in order to reach
an equitable
and reasonable solution, order that the payment of compensation
rather than removal of the structure.”
[13]
[19]
An order for removal of the encroachment in this sense may include an
order for partial demolition
of the encroachment if such an order can
satisfactorily address the encroachment and if it is practically
possible to do so. Experts
evidence may be required to indicate that
the integrity and safety of the structure will not be
compromised.
[14]
Neither the
respondents nor the applicant made out a case for partial removal
based on expert evidence, should the court consider
an order for
demolition.
[20]
A court may also in the exercise of its discretion order transfer of
the encroached land provided
that the owner of the encroached land
consents to the transfer.
[15]
No demand was made in the present matter by the applicant for
transfer of the encroached land to the respondents.
[21]
When a court considers payment of compensation as a reasonable and
equitable solution rather
than demolition of the encroachment it must
consider the provisions of section 25(1) of the Constitution which
provides that:
“
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of
property.”
[22]
It is necessary because the owner of the encroached land will
effectively be deprived of his/her
ownership of the encroached land
by a law of general application.
[16]
The respondents in the
heads of argument submitted that an order for compensation should be
issued. Attention was drawn to a photograph
which depicts both
properties. It is argued that the applicant will be able to erect a
carport that will meet her needs as a means
to alleviate the problem
caused by the encroachment. The outcome of this solution will be that
the entire length of the boundary
between the respective parties will
remain where it was erroneously determined and where the applicant
erected the no nonsense
boundary wall.
[23]
The respondents take the applicant to task in the heads because she
“scrupulously”
elicited the assistance of the
municipality to issue a notice in terms of the NBSA. The attacked is
without foundation. The case
of the applicant is premised on her
undisputed common law right of ownership. No obligation rested on the
applicant to afford the
respondents prior notice of her complaint to
the municipality. It is common cause that the foundation encroached
on the property
of the applicant since 2006. Criticism, in my view,
can justifiably be directed at the municipality who has failed to act
in terms
of the NBSA notice when the respondents failed to take steps
to remove the encroachment identified in the notice.
[24]
However, in these proceedings, the relevance of the notice is limited
to proof that the respondents
were alerted on 16 August 2012 that the
encroachment is unlawful and that they were required to remove the
encroachment. A letter
was also addressed to the attorneys of the
respondents, at the relevant time, in terms whereof the respondents
were informed what
the nature of the encroachment is and that they
were requested to address and rectify the encroachment. It ill
behoves the respondents
to contend that they have no knowledge of
their obligation to take steps to remove the encroachment.
]25]
The reference in the letter to the attorneys of the respondents to
more than one notice given
to the respondents is not supported by the
contents of the file produced by the municipality. There is no clear
evidence in possession
of the municipality that the respondents were
notified more than once that the foundation partially encroached the
property of
the applicant. The least that is said about the lack of
steps taken by municipality, the better.
[26]
There is no doubt that the garage was erected at least six years
prior to the discovery of its
encroachment on the property of the
applicant when she wanted to erect a garage on her property. Be that
it may, it is common cause
that the respondents acquired knowledge by
means of the notice that the garage unlawfully encroached the
property of the applicant.
The respondents failed to engage with the
municipality to rectify the unlawful encroachment. Instead, both the
notice and the letter
were ignored by them. The parties after 10
years have lapsed are still no closer to a negotiated solution.
Importantly, the erven
of the parties are each 280 square metres in
extent. There are, due to the size of the properties, not much room
to develop or
make additions to the properties. The respondents
enjoyed the benefit and use of a portion of the property of the
applicant to
her detriment. She is unable to develop her property and
make additions to its fullest potential. A garage, no doubt, will
enhance
the use of the property and will increase the value and its
marketability.
[27]
No evidence was presented by the respondents that partial removal of
the encroachment is impossible
or not practicable nor was evidence
adduced what the costs might be for removal or partial removal of the
garage. It seems that
the respondents are of the view that the
applicant is spiteful to insist upon removal of the encroachment
despite the unreasonableness
of the encroachment on her property. It
was explained in
De
Charmoy v Day Star Hatchery (Pty) Ltd
[17]
that:
“
The
principle in our law is this: Although an owner may normally do as he
pleases on his own land, his neighbor has a right of enjoyment
of his
own land. If one of the neighbours uses his land in such a way that
material interference with the other’s rights
of enjoyment
results, the latter is entitled to relief.”
[18]
[28]
Removal and re-building of the garage or even its partial removal
will no doubt be a costly and
cumbersome exercise for the
respondents. The applicant is entitled to enjoy full ownership of her
property and to put up a garage
in her property as much as the
respondents. She has taken down the wall which she has erected
unlawfully between them at her costs,
as ordered. The lengthy period
which has lapsed sine the application was issued, is regrettable, but
should be attributed to the
litigants themselves who allowed the
application to drag on for so many years.
[29]
The applicant prefers a garage above a carport. This court cannot
force the applicant to put
up a carport instead of a garage simply
because the respondents erected a garage that encroaches on her
property and is unwilling
to remove the encroachment. Payment of
compensation will only perpetuate the unlawful conduct of the
respondents and cannot be
considered to be a just and equitable
solution.
[30]
The order applied did not make provision for partial demolition. The
order is modified to allow
the respondents to remove the encroachment
if it can be achieved by partial demolition provided that is safe and
will not compromise
the integrity of the structure. It is considered
that a period of 14 days to remove the encroachment is unreasonable.
A period
of a month is reasonable to afford the respondents time
undertake the necessary work.
[31]
The applicant is successful. No argument was presented in relation to
the costs of the application.
There is no reason why the costs should
not follow the result.
ORDER
1.
It is declared that the first and second respondents unjustifiably
and unlawfully constructed an immovable structure on Erf 1
[...]
of Pietersburg Extension 65 Registration
Division LS Northern Province in extent 280 square metres, the
property of the applicant,
by way of an encroachment of an immovable
structure built by them on Erf 1
[...]
Pietersburg Extension 65 Registration
Division LS Northern Province in extent 280 square metres and as
indicated on Annexure “KS3”
of the founding affidavit.
2. The first and the
second respondents are ordered to demolish or partly demolish the
structure described in paragraph 1 above,
provided that a suitably
qualified engineer has certified that the partial demolition of the
structure will not compromise the
structural integrity of the said
structure or adjacent buildings, and to remove all building rubble
and to restore the surface
of the area of the encroachment where the
structure was erected to the state of the area prior to the erection
of the structure.
3. In the event of the
first and second respondents failing to adhere to the order in
paragraph 2 above within 1 (one) month after
the date of this order,
that the Sheriff for the district of Polokwane is ordered to demolish
the immovable structure of the respondents
on the property of the
applicant described in paragraph 1 above and to remove all building
rubble and to restore the surface of
the area on the property of the
applicant where the structure was erected to the state it was in
prior to the erection of the structure.
4. In the event that
the Sheriff having to demolish the structure as ordered in paragraph
3 above, the sheriff is ordered to attach
and sell in execution so
much property of the first and second respondents so to enable the
Sheriff to provide for the costs to
demolish the structure mentioned
in paragraph 1 and to account to the first and second respondents for
such sale in execution and
the costs relating to the demolition of
the said structure.
5.The respondents are
ordered to pay the costs of the application.
GC MULLER
JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION:
POLOKWANE
APPEARANCES
1.
For the
Plaintiff
: AC DIAMOND
2.
For the
Respondents
: JT GROBLER
3.
Date of the
hearing
: 31 JULY 2024
4.
Date judgment is
delivered
: 30 AUGUST 2024
[1]
Shakespeare
W
The
Merchant of Venice
Act
IV, SC 1.
[2]
Described
in the deed of transfer as Erf 1[...] Pietersburg Extension 65
Township, Registration Division LS Northern Province
in extent: 280
(two hundred and eighty) square metres.
[3]
The
first and second respondent. Hereinafter referred to as “the
respondents”.
[4]
Described
in the deed of transfer as Erf 1[...] Pietersburg Extension 65
Township, Registration Division LS Northern Province
in extent: 280
(two hundred and eighty) square metres.
[5]
The
heads of argument of the applicant were filed late without any
explanation which is reminiscent of manner in which the litigation
was conducted.
[6]
The
Polokwane Municipality is the third respondent. (Hereinafter called
“the municipality”).
[7]
Act
103 of 1977. (Hereinafter called “NBSA”.)
[8]
Case
no 454/13.
[9]
Concrete
slabs.
[10]
2015
(5) SA 290 (SCA).
[11]
Par
29.
[12]
2016
(4) SA 83
(SCA).
[13]
Par
24 quoting with approval from CG van der Merwe
Things
27
LAWSA (2
nd
ed)
para158.
[14]
BSB
International Link CC v Readam South Africa (Pty) Ltd and Another
supra
par
29 and 39.
[15]
Fedgroup
Participation Bond Managers (Pty) Ltd v Trustee Capital Property
Trust supra
par
30-35.
[16]
Du
Plessis and Others v De Klerk and Others
[1996] ZACC 10
;
1996
(3) SA 850
(CC) par 44;
The
President of the Republic of South Africa v Hugo
1997
(4) SA 1
(CC) par 96;
S
v Thebus and Another
[2003] ZACC 12
;
2003
(6) SA 505
(CC) par 65.
[17]
1967
(4) SA 188 (D)
[18]
19F-G.