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[1988] ZASCA 166
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Municipality of George v Vena and Another (397/87) [1988] ZASCA 166; [1989] 2 All SA 125 (A) (30 November 1988)
Case No 397/87 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the appeal of:
THE MUNICIPALITY OF GEORGE
Appellant
and
ELLEN NONGATINI
VENA
First Respondent
EDWARD VYWER
Second Respondent
CORAM
: CORBETT, VAN HEERDEN, HEFER, MILNE et KUMLEBEN JJA
DATE OF
HEARING
: 17 November 1988
DATE OF JUDGMENT: 30 November 1988
JUDGMENT
MILNE
JA/
-2-
MILNE
JA:
This is an appeal against the grant of a spoliation order and certain other
relief which the respondents obtained in the Cape of Good
Hope Provincial
Division. The judgment of the court
a quo
is reported as
Vena and
Another v George Municipality
1987(4) SA 29 (C). The allegations of fact,
the contentions of law and the relevant legislation are clearly and fully set
out in the
judgment of FRIEDMAN J. It is therefore unnecessary to set them all
out again at this stage, aithough I shall have occasion to refer
in detail to
the legisiation.
There can be no doubt that the appellant municipality did demolish the partly
erected building occupied by the first respondent, and
the extra room which the
second respondent had added to the house occupied by him, and that it did so
without obtaining an order
of court. The appellant invoked the
-3-
provisions of section 3B(1)(a) of the Prevention of Illegai Squatting Act 52
of 1951 (as amended), which I shall call "the Act", in
seeking to justify thls
demoiition.
Before considering whether those provisions did justify such demolition it is
necessary to consider whether tne learned Judge
a quo
was right in
concluding that, on the aftidavits, each of the respondents had established, on
a balance of probabilities, "...a title
or right to the land on which the
building or structure was or is situated, by virtue of which he may lawfully
occupy the land."
This is so because section 3B(4)(a) of tne Act prevents any
person from asking for any order, judgment or other relief in any civil
proceedings of whatever nature, in any court, that are founded on,
inter
alia
, the demolition under section 3B of any building or structure, unless
that person has first satisfied the court that he has a title
or right of the
kind stated above. (The court
a guo
held
-4-
that these proceedings were founded on a demolition "under this section" (3B)
and this finding was not questioned on appeal.)
The court
a quo
tound that there was a conflict of fact on the
affidavits and applied the test set out in
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
1984(3) SA 623 (A) at 634H-I. Initially there was
such a dispute with regard to both the respondents but by the time ali the
affidavits
had been filed, the dispute on the materiai facts was, in the case of
the first respondent, more apparent than real. I shall start
by dealing with her
position.
In the first affidavit filed on behalf of the appellant the Town Clerk stated
the following:
"Volgens Respondent se rekords bewoon Eerste Applikante plakkerwoning nommer
576. Sy het eers op 1 Julie 1986 by Respondent as bewoner
van Lawaaikamp
geregistreer...",
and denied the first respondent's
allegation that the plot was
-5-
initially allocated to "our family", but was registered in the name of her
sister Jenette Moyakhe and that she, the first respondent,
had paid the rent. He
added "Sedert 1976, toe ek diens aanvaar het as stadsklerk, het Respondent geen
toestemming aan nuwe intrekkers
gegee om hulle in Lawaaikamp te vestig nie."
Annexed to his affidavit were the affidavits of one De Swardt and one Jansen. De
Swardt
stated that he was responsible for the appellant's accounting documents
"...wat betrekking het op huishure van Nie-blanke areas"
and said "ek...kan
onomwonde verklaar dat in September 1982" (when the Municipality's records were
computerised) "nog Ellen Vena
nog Edward Vyver h huis besit, beheer of gehuur
het in die gebied wat bekend staan as Lawaaikamp; of trouens in enige ander
Nle-blanke
gebied van die Munisipaliteit van George nie." Jansen, in his
affidavit, stated that from the results of a survey which he conducted
in 1980
in collaboration with the appellant it was clear that neither of the respondents
occupied, rented or controlled a house in
Lawaaikamp
-6-
at the time of the survey. As the learned Judge
a quo
pointed out in
his careful analysis of the affidavits and annexures this was an incorrect
statement of tne position. The appellant
municipality guite properly made its
records available to the respondent's attorney and he brought to light a number
of the appellant's
records which, in my view, substantiaily corroborate the
first respondent's version.
It was the first respondent's case that she had lived at Lawaaikamp with her
children since 1970, and that when her sister died in
1979 she, personally, went
to the appellant's offices to inform the appellant's officials of tnis fact, and
was told "...that it
did not pose any problem and since then we contmued staylng
there and paid rent." In tne context, she plainly means that she was
told this
by one of the appellant' s officials. It turns out that there is, indeed, a card
among the records of the appellant which
relates to the very premises
-7-
occupied by the first respondent which has on it the name "Jenette
Mayake" (
sic
) and the name "L Vena". A clerk in the employ of the
appellant, one Ruiters, says that he added the name "L Vena" to this card
"gedurende
1981", and at a later date the first respondent's "pasboeknommer". He
says, further, in paragraphs 3 and 4 of his affidavit:
"3.
Ek ontken egter dat Ellen Vena by enige geleentheid aan my sou gesê het
dat sy die struktuur en huurverpligtinge van Jenette
Mayaki oorgeneem het. Ek
vind die bewering geheel en al onaanvaarbaar, omdat die naam van Jenette Mayaki
dan op die rekeningkaart
deurgehaal sou gewees
het.
4.
Dit was 'n algemene gebruik om waar bekend die name van loseerders ook op
rekeningkaarte aan te bring ten einde 'n volledige rekord
by te hou met die doel
om die instroming van ongemagtlgde persone te beheer. Hierdie gebruik moes
gestaak word toe die rekeninge
gerekenariseer
is."
The learned Judge
a quo
found this
explanation improDable. In my view it is highly improbable. In the first place,
if it is true that no "nuwe intrekkers"
were permitted to
-8-
establish themseives in Lawaaikamp after 1976, it seems probable that Ruiters
must have accepted that the first respondent was not
a "nuwe intrekker" which
supports the first respondent's allegation that she had been there with the
appellant's consent since 1970.
Secondly, the first respondent was never a
boarder, and certainly could not have been one after her sister had died. What
is more,
it is guite clear that tne first respondent was already a "gesinshoof",
in this very house when Jansen carried out his survey during
1980 "in
samewerking met die Munisipaliteit van George". There is a rather half-hearted
attempt to suggest that the reference to
"L Vena" in the annexure to Jansen's
affidavit, does not refer to the first respondent, but it is quite plain from
the evidence as
a whole that it does. It is significant that the first letter of
the first respondent's first name was incorrectly reflected as "L"
instead of
"E" both in the accounts card entry made by Ruiters which he says he made in
1981, and in the annexure to Jansen's affidavit,
which he says is
-9-
the result of a survey conducted in 1980. It seems reasonably clear that
Ruiters does not purport to have an independent recollection
of this entry on
the card, nor of the surrounding circumstances, but relies on an attempted
reconstruction based on what appears
on the card. Furthermore, as pointed out in
the judgment, (
supra
at p44E-G), the allocation of the payment of the Rl
00 paid by the first respondent's son in July 1986 to the months of February,
March, April and May 1986, is inconsistent with the appellant's contention that
she was first recognised by the appellant as renting
the house in July 1986.
In these circumstances the court
a quo
correctly found that the first
respondent had established the requisite right in terms of section 3B(4)(a) of
the Act.
I deal now with the question of whether the court
a guo
correctly
found that the second respondent had, on the
-10-
affidavits, established such a right. The second respondent's case was that
he had been allocated a site in Lawaaikamp in 1980 by
one Tshefu, that he had
paid rent from then until the end of 1986 and that it was in 1985 that he added
the extra room which the
appellant demolished in 1987. The Town Clerk of the
appellant stated that Tshefu was employed "...om toe te sien dat geen nuwe huise
of strukture in Lawaaikamp gebou word nie." He said that Tshefu had no authority
at any time to allocate any sites to any one. No
affidavit by Tshefu was
filed.
The position of the second respondent differs from that of the first
respondent because his name does not appear in the survey conducted
by Jansen
nor is he shown as a tenant in any of the records of the appellant prior to July
1986. Furthermore he was unable to produce
receipts for rental paid before July
1986, nor did he proffer any reason for such inability. The court
a guo
,
however, found (
supra
at p45D-F):
-11-
"It is difficult to reconcile Mr Du Plessis' statement that no new permission
was granted after 1976 with respondent's purported
registration of
both
applicants in 1986, albeit pursuant to CPD1 and CPD4. It is clear that since
July 1986 second applicant has in fact been registered
and that, as appears from
JWP10, JWP12 and JWP15, debits have been raised
inter alia
for rent.
Moreover, the payment accepted from him on 21 May 1987 was also described on the
receipt issued by respondent as 'huur'."
I agree
that these documents afford support for the proposition that as from July 1986
the appellant regarded the second respondent
as its tenant. I have, furthermore,
some difficulty with the argument advanced on behalf of the appellant that it
accepted the R19,
and made the entries in JWP15 in consequence of its mistaken
belief that the second respondent had signed CPD4: CPD4, by virtue of
its own
terms, was valld only until 31 July 1986 at the latest, yet the second
respondent remained in occupation, and was, apparently,
still in occupation at
the date of hearing in the court
a quo
. The second respondent
did not,
however, at any stage seek to make the case that the
appellant had, by virtue of its conduct after 31 July 1986,
-12-
tacitiy accepted him as its tenant. His case throughout was that he was the
appellant's tenant by virtue of the allocation of the
site to him in 1980. He
reiied upon tne entries in the respondent's records as supporting only that
case. In these circumstances
one cannot draw inferences against the appellant on
the grounds that it failed to explain such entries more convincingly than it
did, since this was an aspect of the case it was not called upon to meet, and
the
onus
rested upon the first respondent to establish on the affidavits
that he had a right of occupation at the time of demolition on 20
May 1987.
There was a genuine dispute of fact on the affidavlts as to whether the second
respondent was allocated a site at any time,
and it is only if the appellant's
admittea conduct established with the requisite degree of certainty his right to
occupy that he
could succeed. A further difficulty in the way of inferring some
sort of implied lease from the conduct of the parties after 31 July
1986 is that
there is nothing on tne affidavits to indicate that
-13-
the second respondent was aware of the entries made by the appellant in its
records, or that the appellant by its conduct conveyed
to the second respondent
that it regarded him as its tenant. I conclude, therefore, that the court
a
quo
erred in finding that the second respondent had discharged the
onus
of proving on a balance of probabilities that he was a tenant of the
appeliant, and entitied to occupy the land on which his house
was situated. The
appeal therefore succeeds with regard to the second respondent.
I pass now to a consideration of whether the demolition of the first
respondent's partly re-erected house was justified in terms of
section
3B(1)(a).
The court
a guo
found, on the facts, that the appellant had consented
to the erection of the first respondent's house (supra at 48A-C). It found
also
that, having regard to the
-14-
general intention of the Act, the power given to an owner in terms of the
section may be exercised only where the building concerned
is erected on land
unlawfully occupied, and that as the respondents were lawfully in occupation,
the section did not apply. It seems
that, in the case of the first respondent,
the court
a quo
also decided that the rebuilding of the house after the
tire did not amount to the erection of a building or structure within the
meaning of the subsection.
In support of the judgment it was also argued tnat, for the purposes of
section 3B(1)(a), the consent to the erection of the house
covered the
re-erection of the house after it burned down on 16 May 1987.
I am, with respect, constrained to differ from the conciusion of tne learned
Judge
a quo
that section 3B(1)(a)
applies only to a building on land unlawfully occupied.
-15-
Undoubtedly one of the main objects (if not the main object) of the Act was,
at the time of its enactment, and still is, the prevention
of iliegal squatting;
the provisions referred to ín the judgment (
supra
at p51A-C)
clearly justify that conclusion. That intention also appears from the long title
to the Act. There are, however, two difficulties
in the way of reliance upon the
long title. The first is that inferences drawn from the long title as to the
object of the legislature
must always yield to the plain meaning of the
language.
Bhyat v Commissioner for Immigration
1932 AD 125
at 129 and
Norden & Another NN.O. v Bhanki & Others
1974(4) SA 647 (A) at
655A. There does not appear to be any room for doubting that the legislature
used the word "or", in the phrase
"erected or occupied", disjunctively. The
second difficulty is that if one is entitled to have regard to the long title in
order
to ascertain the intention of the legislature, then where an Act is
amended one must likewise have regard to the long title of the
-16-
amending Act in order to ascertain the intention of the
legislature in
enacting the amendment. The first amendment that
is relevant to the question here in issue is that effected by
section 2 of
The Prevention of Illegal Squatting Amendment Act 92
of 1976. This Act
inserted into the original Act the following
new section 3B(1)(a):
"Notwithstanding the provisions of any law to the contrary -(a) but subject to
any law under which he is compelled to demolish or
remove any building or
structure, the owner of iand may without an order of court demolish any buiiding
or structure erected on the
land without his consent, and remove the material
from the land;".
The long title of the amending Act included the
following:
"To amend the Prevention of Illegai Squatting Act, 1951, in order to prohibit
the erection or occupation of, or the presence in certain
circumstances of
persons in, buildings or structures if building plans in respect thereof have
not been approved by a local authority;
to provide for the demolition of such
buildings or structures,
as well as of buildings or structures erected
without the consent of the owner of the land
;..." [My
underlining].
On 3 June 1977 this subsection was further amended
by section 1 of the Prevention of Illegai Squatting Amendment Act 72 of 1977.
This
introduced into section 3B(1)(a) the words: "or
-17-
occupy" after the word "erected". The opening words of the long
title of that Act are as follows:
"To amend the Prevention of Illegal Squatting Act, 1951, so as to extend the
power under section 3B, of an owner of land to demolish
any building or
structure erected on the land without his consent, to a buiiding or structure
occupied on the land without his consent;..."
To extend the power
to demolish, without an order of court,
buildings erected without the owner's
consent to buildings
occupied without his consent is not to exclude thereby
the
original power and limit it to the additional one. The
long title, therefore, affords no support for the proposition
that the Act in its present form, applies only to buildings on
land occupied without the owner's consent.
Nor do I think that the provisions of section 3B(4)(a) afford such support.
If the legislature had intended section 3B(1)(a) to apply
only to buildings on
land unlawfully occupied, section 3B(1)(a) would no longer apply once a right
had been established of the nature
specified in section 3B(4)(a).
-18-
That is not what section 3B(4)(a) says. Furthermore, it is quite clear that
it is not possible to read any such restriction into section
3B(1)(b). Under
those provisions a local authority may, without an order of court, and at the
expense of the owner of the land, demolish
buildings falling within the
provisions of (i), (ii), and (iii) of that sub-section. This power obviously
includes the right to demolish
buildings erected or occupied with the consent of
the owner and even buildings erected by the owner. It is, however, a power which
can only be exercised where tne building is situated on land which is
not
the property of the local authority. The construction of sub-section (a) adopted
by the court
a quo
would mean that where the municipality is the owner of
the land, it could not demolish without an order of court a building erected
without its consent but on land occupied with its consent; yet, as appears from
what I have just said, where the municipality is
not the owner of the land it
can under sub-section (b) demolish a building erected by or with the
-19-
consent of the owner without an order of the court - an inconsistency which
can hardly have been intended by the legislature.
From a practical point of view, however, it is difficuit to conceive of a
situation where the owner of land would be entitled to act
in terms of section
3B(l)(a) where, despite the building or structure having been erected without
his consent, it was nevertheless,
occupied with his consent. Counsel for the
appellant conceded that in such circumstances the owner must be taken to have
impliedly,
though
ex post facto
, consented to the erection. To lease
premises is,
prima facie
at any rate, wholly inconsistent with an
intention to demolish them during the currency of the lease and, whether one
says that the
owner has thereby impliedly consented to the erection or, that he
has thereby waived his right to demolish under the subsection,
does not seem to
matter. The appellant's
-20-
counsel was also constrained to concede that, looking at the
evidence as a
whole, it was clear that the appellant municipality
must have consented
(either expressly at the time when the house
was constructed, or by its
conduct after the house had been
constructed) to the erection of the house occupied by the first
respondent before it burned down. He submitted, however, that it
was quite
apparent that the appellant had expressly forbidden the
reconstruction after the fire. This raises the guestion as to
whether or
not it was open to the appellant to forbid it. The
learned Judge a quo (
supra
at p51D) said:
"It is a fundamental principle of our law that a person may not take the law
into his own hands and a statute should be so interpreted
that it interferes as
little as possible with this principle".
In this he was
undoubtedly right. The right of any person in
possession of property, whether movable or immovable, not to be
disturbed in his possession except by legal process, is one
recognised by most civilised systems of law. In America, for
example, it is guaranteed by the XIVth Amendment to the
-21-
Constitution. It is also a fundamental principie ot our law. This ordinary
principle of law may, however, be altered by Parliament,
which may confer a
right to act without due process of law. Such a right is in the words of
WILLIAMSON J (as he then was) "...one
which obviously must be conferred in clear
language..." -
Sithole v Native Resettlement Board
1959(4) SA 115 at
117D. The legislation under consideration in that case was section 17(6) of the
Native Resettlement Act, 19 of
1954. This provided that where a notice of
expropriation had been served in terms of section 17 of that Act:
"Upon the service of any such notice the ownership in the land described in the
notice shall pass to the board free of all encumbrances
and the board may, after
expiry of a period not less than 30 days from the date of such service, take
possession of and use the land."
The court came to the conclusion
that the section was not worded
so ciearly as to detract from the general principle of law
"...that there shall be no spoliation by any person, be it an
individual, or a government department or a municipality or any
-22-
simiiar body" (
supra
at 118B). What the learned Judge said at
page 117D-F bears repetition:
"...the clear principle of our law is that, ordinarily speaklng, persons are not
entitled to take the law into their own hands to
enforce their rights. There is
a legal process by which the enforcement of rights is carried out. Normally
speaking, it is carried
out as a result of an order of court being put into
effect through the proper officers of the law such as the sheriff, deputy
sheriff,
messenger of the magistrate's court or his deputies, reinforced if
necessary, by the aid of the police or some such authority; in
most civilised
countries there exists the same principle that no person enforces his legal
rights himself. For very obvious reasons
that is so; if it were not so, breaches
of the peace, for instance, would be very common. It is clear, therefore, that
if you want
to enforce a right you must get the officers of the law to assist
you in the attainment of your rights."
That this is a fundamentai
principle of our law admits of no doubt. The need to avoid "breaches of the
peace", can hardly be thought
to be of less importance under present-day
conditions than when the rule was first enunciated in the cradle days of our
law. It is,
perhaps, not without interest that SANDARS in his INSTITUTES OF
JUSTINIAN (7th Ed) p488 in a note dealing with the praetorian interdicts
suggests that it was:
"...originally, perhaps, only when the subject ot dispute
-23-
was such as to render a breach of the public peace the probable result unless
the matter was set at rest by the summary interposition
of legal
authority"
that such remedies were granted where the dispute was
entirely
between private parties. See also
Malan v Dippenaar
1969(2)
SA
59 (0) at 64H.
Against this background it is clear that a sectlon which empowers any owner
of any land without due process ot law to demolish any
building, occupied or
unoccupied, which has been erected or occupied without his consent must be
narrowiy construed, and construed
in a way which "...gives rise to the least
deprivation of the citizen's right subject to effect being given to the express
intention
of the legislature":
Attorney-General v Tayob
1962(3) SA 421
(T) at 423C and see tne remarks of HOEXTER JA in the report of the Appellate
Division decision in the same case in
1963 (2) SA 460
at 464 where the learned
Judge stated that:
-24-
"...the section should be interpreted in favour of the existence of common law
right, the existence of which is not
in conflict with the terms of section 9(1)."
Section 3B(1)(a) is,
in my view, capable of meaning that:
(a) the owner's consent to erection may be given before, during or after the
erection and may be given in any manner whatsoever,
that is to say, expressly or
impliedly, orally or in writing or by conduct;
(b) the consent may be in very general terms e.g. for "a dwelling" or "a shack
for X and his family to live in". That would probably
be the kind of consent
usually given under this subsection.
I do not think that the
consent here envisaged is one involving the consideration by the owner of the
sort of factors
-25-
which fall to be considered when application is made to a local authority for
approval of building plans (the kind of consent in fact
envisaged by section
3B(1)(b)) or for approval of the use of land of the kind envisaged in laws
governing town planning. That kind
of consent is the approval referred to in
section 3A of the Act, and appropriate sanctions are provided in that section
and in section
3B(1)(b) for the situation where buildings have been erected
without that kind of approval. If the owner has consented to the erection
of a
building then,
for the purposes of section 3B(1)(a)
, the fact that the
building in fact erected is not preciseiy what the owner envisaged, or does not
comply with building by-laws or
town planning laws or regulations does not
necessarily
mean that the owner has not consented to such erection. This
proposition is obviously subject to the gualification that the building
erected
must not be so different from that to which the owner consented that it can be
said that he has not consented. If, for example,
he consents to the
-26-
erection of a dweliing house, he obviously has not consented to the erection
of a boarding house or a block of flats - still less
to the construction of a
commercial or industrial building. Furthermore, much will depend on the
particular facts of each case. Obviously,
if the owner has detined or qualified
his consent in such a way that a particular building, and no other, may be
constructed, then
any material departure therefrom will mean that he has not
consented to what has been built. The legislature has, however, not provided
for
any procedure with regard to the application for, or the grant of, the consent
referred to in section 3B(1)(a) (and I stress
that I am dealing only with the
consent referred to in that sub-section), and circumstances may arise where it
may be said that the
owner has consented to the erection of a particular type of
building without defining the building or qualifying his consent in such
a way
as to restrict the size or quality of the building and without limiting the
duration of his consent. In order to
-27-
justify its actions in demoiishing the first respondent's "building" without
an order of court, the appellant bore the
onus
of showing that it was
erected without its consent and unless it showed on a balance of probabilities
that erection took place without
its consent in the sense which I have
described, then it failed to discharge that onus.
I turn now to consider the facts. As already mentioned, the appellant's
counsel conceded that the appellant must be taken to have
consented to the
original erection of the house occupled by the first respondent. It is not in
dispute that the house was being rebuilt
on the same cement floor and
foundations (which were not damaged by the fire) and that "[i]t was to be
rebuilt in exactly the same
fashion as it stood before". There is nothing on the
papers to show that the appellant's admitted consent to the originai erection
of
the house did not apply to the house as re-erected, nor was any
-28-
reason put before the court to suggest that the consent was such as to
terminate automatically if the building was damaged or even
destroyed. Thus, for
example, I do not think it could be contended that where the owner has consented
to the erection of a buiiding
on the basis of detailed building plans, and
during construction a wall or even the whole building has been demolished by a
runaway
truck the rebuilding of the waii or house in accordance with the plans
would require a further consent.
It follows, in my view, that the appeliant's consent continued to operate in
respect of the re-erection.
I should add that, guite apart from the above reasoning, I would have come to
the same conclusion on the basis that "erect" in section
3B(1 ) (a) must be
restricted to the creation of a new building and that it does not embrace
rebuilding what has been wholly or partly
destroyed by fire - or,
-29-
for that matter, by earthquake, flood, or other
vis major
(in
which
I would include, for example, the knocking down by the
municipality of one
building in mistake for another). The
decision in
Tayob
's case
supra
affords substantial support for
this view. The section under consideration in that case was
section 9(1) of Act 21 of 1940. That provided (excluding words
not here relevant) that:
"...no person shall erect...any structure which is attached to the land on which
it stands even though it does not form part of that
land within a distance of
300 Cape feet from the centre line of a declared road or a building restriction
road, except in "accordance
with the permission in writing granted by the
controlling authority concerned: Provided that the preceding provisions of this
section
shall not apply in connection with -
(a) the completion
of a structure whose erection was commenced on a date before the road in
question became a declared road or a building
restriction road or before the
first day of June, 1939, whichever date is the later;"
The facts were that on the respondent's property there had been a building in
existence, which was about 38 Cape feet from the centre
line of a declared road.
The building was
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already there when the road was declared. After the road had
been declared
the building was destroyed by fire, but certain
walls remained standing to
the height of six or seven feet and
the foundations remained intact. The
respondent caused a new
building to be built on the existing foundations and partly
standing walls. DOWLING J said (
supra
at 423D-E):
"I am of opinion that the owner or possessor of a predeclaration structure must
impliedly have the right to maintain, repair, restore
and even improve such
building as distinct from erecting a new building. And it would be wrong to say
that such a right is extinguished
by the tact of destruction by fire or
otherwise of a building which is entitled to be within the prescribed distance
of 300ft, provided
that the operation of maintaining, removing (
sic
;
improving?) or restoring leaves the dimensions and the distance from the road of
the structure unaltered."
Counsel for the appellant argued that
the owner of a pre-
declaration structure could repair the structure, but
could not
restore it even on an existing foundation, because he would
thereby be "erecting a structure". HOEXTER JA held at p463-4
that the purpose of the section would not be thwarted by the
continued existence of pre-declaration structures; otherwise the
legislature would have provided for the removal of such
-31-
structures. He agreed with DOWLING J that having regard to the fact that the
foundations and some of the walls were still intact the
building operations of
the respondent nad to be regarded as restoration and not erection. It may be
that HOEXTER JA was, to some
extent, influenced by the fact that some of the
walls were only partly destroyed whereas that does not appear to be the position
nere. It appears to me, however, that the main thrust of the judgment, both of
the court
a quo
and this court, was that the purpose of the section would
not be frustrated by the continued existence of pre-declaration structures
- no
more than the purpose of section 3B(1)(a) would be thwarted by the continued
existence of the structures to which the appellant
previously consented. It
follows, in my view, that the appeal in respect of the first respondent
fails.
It was, however, agreed that the form of the ancillary relief granted in the
court below was wider than that intended to
-32-
be sought by the respondents, and that the form of the order should be
amended by:
(a) adding at the end of paragraph (c) of the order, the
following
words:
"other than in consequence of an order of court" and
(b) by the addition of the following sentence as part of
paragraph (d) of the
order of tne court
a quo
:
"This declaration is without
prejudice to respondents' rights to obtain a demolition order in respect of the
said house." Despite
the fact that this wording was agreed by counsel for both
parties I think that what they intended with regard to the addition to
paragraph
(d) would be more accurately reflected if the additional sentence were to
read:
"This declaration is without prejudice to respondents' right to apply for a
demolition order in respect of the said house."
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The order of the Court is accordingly as
follows:
(a)
The appeal as against the first respondent is dismissed with costs
including the costs of two counsel.
(b) The appeal as against the second respondent is upheld with
costs.
(c)
The
order of the court
a quo
is
altered:
(i) by deleting paragraph (b) and substituting
the following:
"The application by the second applicant is dismissed with costs including
the costs of two counsel."
(ii) by deleting paragraph (c) thereof and
substituting the
following:
"That respondent is interdicted and restrained from further demoiishing the
said home of first applicant when restored as aforesaid
other than in
consequence of an order of court."
(iii) by the addition of the following sentence as
part of
paragraph (d) of the said order:
"This declaration is without prejudice to respondent's right to apply for a
demolition order in respect of the said house."
(iv) by amending paragraph (e) to read as follows:
"Respondent is
ordered to pay the first applicant's costs including the costs of two
counsel."
For the guidance of the taxing master it is estimated that approximately 60%
of the affidavits and ot the argument
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before us was devoted to the case of the first respondent and the remaining
40% to the case of the second respondent. I understood
counsel to be agreed that
approximately the same amount of time was devoted in the court a quo to argument
concerning the first and
second respondent respectively as was devoted in
argument before us.
A J MILNE
Judge of Appeal
CORBETT JA ]
VAN HEERDEN JA ] CONCUR
HEFER JA ]
KUMLEBEN JA ]