SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy



IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case number: 19001/2020

In the matter between:

ROSEVEAN INVESTMENTS 0028 (PTY) LTD Applicant

and

The CITY OF CAPE TOWN

First Respondent
CHAPMANS PEAK HOTEL (PTY) LTD

Second Respondent
CARLOS DE NOBREGA

Third Respondent
KEITH WOOLL

Fourth Respondent
GREGORY FRANCOIS

Fifth Respondent
PATRICIA FRANCOIS

Sixth Respondent
DANIELA ISRAEL WILSON Seventh Respondent

2




Coram: Acting Justice P Farlam
Heard: 14, 15 August 2024
Delivered electronically: 3 December 2024


JUDGMENT

FARLAM AJ

I. INTRODUCTION

[1] While the relief sought in the applicant’s notice of motion is diffuse and wide -
ranging, this case is, at its essence, about a sewerage pipeline, which the first
respondent (the City) constructed over the property of the applicant
(Rosevean), and which has been described by Rosevean as the “Unsightly
Pipe”, and by the City as the “secluded pipe”. The key questions are whether
the City constructed the sewerage pipeline across Rosevean’s property in Hout
Bay irregularly or unlawfully; and if so, what should be done about that at this
stage, slightly more than four years’ later.

[2] The application also chronicles disputes between Rosevean and its
neighbours, the second respondent (the Hotel) and its manager, the third
respondent (De Nobrega), and the fourth respondent ( Wooll); but for various
reasons those disputes are now academic or incapable of being pursued. This
judgment accordingly focuses on the sewerage pipeli ne issue, before briefly
addressing the remaining matters.

[3] It is also necessary to address the applicant’s request for an inspection in loco,
which was persisted with even in closing argument, but which, as the parties
would have gathered, I was not inclined to accede to. I shall address that later
in the judgment, after a summary of matters relevant to the various disputes
3



and an analysis of the facts and arguments germane to the applicant’s
sewerage pipeline claim.

II. THE BACKDROP TO THE PRESENT DISPUTES

[4] Rosevean owns immoveable property situated at 5 M[...] Road, Hout Bay (the
Rosevean property). Wooll owns the property at 7 M[...] Road (the Wooll
property). The Rosevean property and the Wooll property were created by the
subdivision of Erf 1 […] Hout Bay on 19 December 1994, with the Rosevean
property hence being Remainder Erf 1[…].

[5] The fifth and sixth respondents (Gregory and Patricia Francois) are the
registered owners of 1 M[...] Road; while the seventh respondent (Daniela
Wilson) is the owner of 3 M[...] Road. They have been joined in the application
merely for any interest that they might have. They have not participated.

[6] The Hotel, which has been run by De Nobrega for almost 25 years , owns a
property situated on Main Road, Hout Bay (the Hotel property), downhill from
(and on the seaside of) the properties on M[...] Road.

[7] The location of the various properties, and the various sewers, can usefully be
seen on a conceptual illustration which accompanied the second and third
respondents’ supplementary heads. A copy of that illustration, as slightly
amended by Rosevean’s legal team (to show an additional pipeline and,
according to them, the precise configuration of an earlier, now disused, pipeline,
which linked to the Hotel property) , is accordingly annexed at the end of this
judgment.

[8] The disposal of sewerage can be difficult in a road such as M[...] Road, located
on the slope of a mountain. In December 1994, a few weeks before the
subdivision, an agreement was concluded between the H otel and the then
owner of Erf 1 […], Mark Stein , in terms of which sewerage from Nos. 5 and
7 M[...] Road (i.e., the properties belonging to Rosevean and Wooll) would be
4



conveyed in a pipeline down to the Hotel property below. Although the parties
have divergent versions as to the origin and precise route of the pipeline
contemplated by that agreement (the original pipeline), it seems that it ran
from the Rosevean property to Wooll’s property, and then down to the Hotel
property (potentially via the Rosevean property, though that is not material for
present purposes).

[9] Around the middle of 2017, the Hotel (represented by De Nobrega) and Wooll
reached an agreement in terms of which the sewerage from Nos. 5 and 7 M[...]
Road would no longer be piped over the Hotel property, but would instead be
conveyed in a pipe across Wooll’s property (7 M[...] Road) and from there
across 9 M[...] Road and then into the City’s sewerage connection on, or next
to, No. 9. After construction of that sewerage line had been completed (which
according to De Nobrega was in December 2017), the original pipeline, running
over the Hotel property , was no longer needed. Sometime thereafter that
pipeline became severed at the boundary of the Hotel propert y, whether as a
result of having been cut off (on Rosevean’s version) or simply having broken
and fallen down (on De Nobrega’s version) . Rosevean was not told about the
rerouted pipeline at the time or in the months that followed; it was therefore still
for a few years under the impression that its sewerage was being discharged
via the Hotel property. It also did not know that the original pipeline was no
longer intact.

III. THE DEVELOPMENTS IN 2020

[10] Rosevean may potentially still have been ignorant of the termin ation of the
arrangement provided for by the 1994 agreement had there not been a
discharging of sewerage on its property in May 2020, which caused it to
investigate the sewerage system in place at that time. Rosevean then
discovered that the original pipel ine now ended, and was open, at the point
where it entered the Hotel property. It also learned, through a plumber that it
engaged to establish the cause of the sewerage spillage, that a “solid end cap”
5



had seemingly been placed in the pipeline which led fr om the Rosevean
property into the Wooll property.

[11] Rosevean blames Wooll for the “solid end cap”, and thus too for the egress of
sewerage onto its property. Rosevean also accuses the Hotel, and De Nobrega
in particular, of cutting off the original pipeline . These are the neighbour
disputes to which I have referred in paragraph [2] above. They are however
now merely of historical significance. For the Rosevean propert y is connected
to the municipal sewerage system via a pipeline running over No. 7 and No.9
M[...] Road, and the sewerage discharge of mid-2020 is fortunately now a
distant memory. Rosevean is also anyway unable to pursue the se disputes
meaningfully in these proceedings due to disputes of fact on the affidavits,
which it was earlier refused permission to have referred to oral evidence.1

[12] What thereafter happened in October 2020 is of more long-lasting significance.
For, in October 2020, the City installed a sewerage pipeline over the Rosevean
property, which connected Nos. 1 and 3 M[...] Road to the pipeline which ran
from the Rosevean property through to No. 9 M[...] Road (via t he Wooll
property) and from there into the municipal sewer. The new pipeline – while of
considerable benefit to Nos. 1 and 3 M[...] Road, whose properties had
previously not been connected to the municipal sewerage system , and also
useful to neighbouring properties – has been constructed above ground on the
Rosevean property and snakes across a portion of the property, affixed to the
top of wooden poles (about 1.5 metres above the soil), clad in what appears to
be a brown wrapping. It was therefore not welcomed by Rosevean, which also
alleges that it impedes the future expansion of its buildings.

[13] Rosevean appears to believe that the sewerage spillage, the severance of the
original pipeline and the construction of the new snaking pipeline were
somehow all linked. At least in part as a result thereof, Rosevean has therefore

1 An interlocutory application by Rosevean to inter alia refer some disputes to oral evidence,
which was argued on 3 August 2021 was dismissed on an attorney and client scale by Nyati AJ , in a
judgment delivered on 21 June 2023.
6



sought relief in respect of all three events. In my view, they are not however
necessarily connected. Nor, as I have mentioned, are the first two events (the
sewerage spillage and the severing of the original pipeline) of any significance
any longer. It is only the City’s construction of the new above-ground sewerage
pipeline, joining the properties from No. 1 to No. 9 M[...] Road on the same
sewerage reticulation network, that still raises a live controversy.

IV. THE CITY’S CONSTRUCTION OF THE CONTENTIOUS PIPELINE

[14] Correspondence attached to the founding affidavit indicates that the impetus
for the pipeline installed by the City in October 2020 was predominantly the
sewerage problems at 1 and 3 M[...] Road, which as mentioned were not at the
time connected to the municipal sewerage system (and were therefore reliant
on a company collecting raw sewerage from tanks on their properties). Wooll
and his wife, and De Nobrega appear to have been par ticularly concerned
about the sewerage issues at the top of M[...] Road and to have been anxious
for there to be a pipeline which accommodated all properties on the Main Road
(Hotel) side of M[...] Road (i.e., Nos 1, 3, 5, 7 and 9).

[15] De Nobrega had in f act been corresponding with the City about such a sewer
line back in August 2018, when he had informed the City that installing a
segment of the sewer line on 5 M[...] Road would be “relatively easy and low
cost” and that the City could “have easy access from hotel pool slope – the
vegetation has been cleared to allow easy access”. De Nobrega informed
Ms Arlene Duval, the attorney for Rosevean, of this correspondence and the
route which was proposed for the sewer line on 26 September 2020 in an email,
which inter alia stated that the new line “might be secured to the face of the
gabion retaining wall, which should be a secure structure that is unlikely to
move” and that it “ will not be visible from your living areas ”. De Nobrega also
advised Ms Duval on that day that the City had a tender for the work which
expired mid/end October 2020 and that they purportedly had to begin the
construction in order to justify the extension of the tender (though
correspondence from a few days earlier between De Nobrega and the City’s Mr
7



Ishmail indicated that the City was proposing a temporary solution under the
current tender, and then a new pipeline, accommodating all the properties on
M[...] Road, under a new tender; but that De Nobrega was not prepared to
entertain another temporary connection).

[16] There was a meeting between various affected property owners on 2 October
2020 at 3 M[...] Road. In attendance were De Nobrega, Wooll and his wife, the
owners of the properties situated at 1 and 3 M[...] Road (i.e., the fifth to seventh
respondents) and Oscar Chavez, the foster son of Rosevean’s sole director,
Mrs Storey (who lives in Arizona). No City official was present. De Nobrega
apparently gave an overview of the sewerage issue and his propo sed solution
and impressed upon those present the need to solve the sewerage problem
before the City’s existing tender award expired. At least a couple of remedial
options were seemingly discussed: a connection point on the Wooll property,
and a temporary line connecting the properties to the municipal sewerage
system until a permanent solution could be found. None was however
supported by documentation or drawings , though De Nobrega avers that he
walked Mr Chavez over the installation route that he proposed.

[17] Ms Duval states that she made various attempts to contact City officials and
obtain relevant documents in the last week of September and the first three
weeks of October 2020. An engineer engaged by Rosevean (a Mr Kelly) also
wrote to the City’s Mr Ishmail on 16 October 2020 and attempted to meet with
him. Mr Kelly’s letter to Mr Ishmail informed him, among other things, that
Mrs Storey was surprised to learn of the correspondence between De Nobrega
and Mr Ishmail, as she was unaware of the proposed work , and that, while
Rosevean welcomed the formalisation of the new sewer system, it wanted an
assurance that it would follow the route of what he believed to be the existing
pipeline servitude on its property, as shown on a diagram which he attached.
(According to De Nobrega – who seems to be correct on this score – Mr Kelly
misunderstood the servitude diagram, as it in fact showed a pipeline servitude
for water to the Hotel, and was in favour of the Hotel.)

8



[18] Mr Kelly did not receive a response to that letter (which the City states only
came to the attention of Mr Ishmail the following week); but managed to speak
to Mr Ishmail telephonically on 23 October 2020. According to Mr Kelly,
Mr Ishmail told him – to his considerable surprise – that the installation of the
new sewer line across the Rosevean property had been completed on
21 October 2020 and that the City was in the process of registering a servitude
across the Rosevean property. On being asked for a copy of the drawings the
contractor used to construct the sewer line and the proposed servitude diagram,
Mr Ishmail apparently stated that there were no design drawings available. He
also declined to provide the servitude diagram.

[19] Rosevean’s version is to some extent disputed by the respondent s. But there
is not, in my view, material divergence on the key facts, the differences relating
more to what one can be inferred, surmised or concluded from them.

[20] The City has confirmed that the tender award which permit ted the City to
address the sewera ge problems in 2020, through an external contractor,
expired on 20 October 2020. There was accordingly some urgency from its side
in resolving the sewerage leakages, which were affecting Nos. 1, 3, 5 and 7
M[...] Road, as well as the Hotel property , once Mr Ismail (a Principal
Technician, in the Water and Sanitation Services Department at the City) was
advised of the problems in September / October 2020.

[21] According to the City, its appointed contractor, Nejeni Construction and Project
Management CC ( Nejeni), began preparatory work for the installation of the
new sewerage pipeline on 8 October 2020, commenced the installation of the
pipeline itself on 13 October 2020 and completed the pipeline by 15 / 16
October, allowing the City’s officials and Nejeni to survey the completed works
on 20 October 2020.

[22] As is common cause, Nejeni and the City officials did not access the Rosevean
property through the front entrance of the property or with the express
permission or acknowledgement of Rosevean when installing the new pipeline.
9



According to the City, Nejeni and the City officials accessed the Rosevean
property through 3 M[...] Road (one of the immediately adjacent properties).
The City is unapologetic about this: it contends that it had a “ statutory power”
to access the property in whatever way it wanted in order to undertake its
statutory obligations; and that it was incumbent on Rosevean to have objected
to Nejeni’s actions at the time, had it wanted to take issue with them.

V. THE PARTIES’ COMPETING CONTENTIONS ON THE SEWAGE PIPELINE
ISSUE

[23] As will be apparent from the summary above, Rosevean asserts that the new
sewer line was installed on, and across, its property without its knowledge or
consent, and without any notification from the City. Acc ording to Rosevean, it
also did not consent to anyone even accessing the Rosevean property for
purposes of installing the sewerage line and that access was therefore gained
by the contractor without permission in October 2020.2 Rosevean alleges, too,
that the location of the sewer line – which Ms Duval, Mr Kelly and Mrs Storey’s
foster son, Mr Oscar Chavez, noted, on visiting the property on 2 November
2022, closely aligned to De Nobrega’s direction – would not allow the current
dwelling on the Rosevean property to be extended.

[24] The City has contended, in response, that Nejeni’s work could not have taken
place without Mr Chavez’s knowledge, given that he was, on his own version,
at the Rosevean property until 15 October 2020. The City also submits that, as
neither Mr Chavez, nor Ms Duval, nor any other representative demanded that
Nejeni cease the installation (and for example, did not “ address
correspondence to the [City] requesting that the work stop immediately” or bring
an “application to interdict the [City] from carrying out these works”) this “implies
consent or tacit acquiescence by the applicant ”. The City asserts, too, that at

2 Ms Duval state d in Rosevean’s founding affidavit that she had no idea how Nejeni gained
access to the Rosevean property for the purpose of the pipeline insta llation but could “ state
unequivocally that access was gained without the permission of the applicant or anyone related in any
manner to the applicant”.
10



the neighbours’ meeting held on 2 October 2020, Mr Chavez purportedly
“agreed with the installation to be carried out by cont ractors deployed by the
[City]” – though no City official was present at that meeting and so the City has
no firsthand knowledge of what Mr Chavez may or may not have indicated then;
and the affidavits of De Nobrega and Wooll, when read with the affidavits of
Duval and Chavez, do not in my view justify such an assertion.

[25] The City further alleges (somewhat undermining its tac it consent contention)
that the pipeline was “ installed along an extremely steep slope and … is
inaccessible to members of the public ” and is “furthermore covered by dense
bushes and not noticeable from the vantage point of the applicant’s property or
that of the neighbouring property owners ”. The City also states that “ it seems
extremely unlikely that the dwelling could be extended past the retaining walls”,
and that “the contractors left ample space for future extension”.

[26] The nub of the City’s contentions is that it acted within the framework of its
legislative powers and authority, as well as its rights under the subdivision
conditions registered over the Rosevean property, and that it did not infringe
Rosevean’s property rights. In essence, it contends that, in terms of its statutory
powers, as read with the subdivision conditions , its contractors and officials
were entitled to access the Rosevean property from an adjacent erf without the
express consent of Rosevean, an d also without knowing whether any
Rosevean representative was even aware that they were working on the
Rosevean property. The City submits, too, that, in the light of the empowering
legislation and the agreed servitude, they did not need to discuss either the
route of the proposed sewerage pipeline over the Rosevean property, or the
look, height and composition of the pipeline, with Rosevean.

[27] What needs to be decided for purposes of addressing the sewerage pipeline
dispute is whether the City’s understanding of the legal position is correct.3

3 The affidavits and submissions of the Hotel and De Nobrega, and Wooll, are largely irrelevant
to this dispute. While De Nobrega sets out some useful factual background, he largely focuses on the

11




VI. WHETHER THE CITY COULD INSTAL THE SEWERAGE PIPELINE AS IT
DID

[28] The City has placed some store on the various by -laws and other legislative
provisions that allow (and require) the City to ensure that there are adequate
sewerage systems. Those enactments do not however take the matter further.
It is not in dispute that the City can (and should) install sewerage systems and
ensure that suburban properties are connected to the municipal sewerage
system. What is in issue is how the City may permissibly go about doing that,
and in particular what obligations it has to proper ty owners when intending to
instal a sewerage pipeline over their properties. That question was not
addressed by the statutory provisions to which I was referred by the City.

[29] More to the point was Rosevean’s counsel’s reliance on the law pertaining to
servitudes over private property. For, as was common ground, the City’s
entitlement to instal a sewerage pipeline over the Rosevean property ultimately
derived from a servitude imposed on the Rosevean and Wooll properties at the
time of the subdivision of the original Erf 1[…] Hout Bay, in favour of the City
and neighbouring properties . Absent that servitude, the City could not have
sought to run a sewerage pipeline across privately -owned land; or at least
would have had to follow a regulated process and pay co mpensation to the
property owner. The key issue is therefore what the servitude allowed the City
to do.

[30] The relevant subdivision condition (clause 3.5 of the conditions imposed by the
Western Cape Regional Services Council, in terms of section 42(1) of
Ordinance 15 of 1985, on 19 December 1994) reads as follows:


allegations directed at him. Wooll’s short affidavit is similarly concerned with the prayers and allegations
against him (which mostly concern t he question of whether Wooll capped Rosevean’s sewer line,
thereby causing sewerage to spill out onto its property).
12



‘Subsequent to the granting of a subdivision in terms of the section 25(1)
of the Ordinance, the person who at any time is the owner of any land
unit directly involved in the subdivision shall be re quired, without
compensation –

3.5.1 to allow gas mains, electricity, telephone and television cables
and/or wires, main and/or other waterpipes and foul sewers and
stormwater pipes, ditches and channels of any other land unit or
units to be conveyed across the land unit concerned, and surface
installations such as mini-substations, meter kiosks and service
pillars to be installed thereon if considered necessary by the
Council, in such manner and position as may from time to time
be reasonably required; this shall include the right of access to
the land unit at any reasonable time for the purpose of
constructing, altering, removing or inspecting any works
connected with the above’

[31] As I read it, that condition appeared to envisage a sewerage pipeline running
underground, or at least on the ground , though it was not prescriptive on this
score a nd in fact indicated that the “ manner and position ” of any sewer or
stormwater pipe could be “ as may … be reasonably required ”. The condition
also made clear that the landowner must allow the municipality to access the
property “at any reasonable time ” for the purpose of constructing, altering or
inspecting such pipes. It was made clear, too, that the landowner was not
entitled to compensation for any pipe, wire, cable or ditch which was considered
to be reasonably required.

[32] The rights and duties conferred by a statutory servitude which allowed the
laying of pipes or conduits on private land were considered by the Constitutional
Court in Tshwane City v Link Africa.4 I agree with Rosevean’s counsel that this
case is relevant in the present context, even though the servitude in this case

4 Tshwane City v Link Africa and Others 2015 (6) SA 440 (CC).
13



is not a statutory one, and there are consequently some m aterial differences
between the two scenarios.

[33] The provision at issue in Link Africa was section 22 of the Electronic
Communications Act, 36 of 2005 (ECA), which provides in relevant part [with
emphasis added] that, having due regard to applicable law (ss (2):

“(1) An electronic communications network service licensee may
—

(a) enter upon any land, including any street, road, footpath or
land reserved for public purposes, any railway and any
waterway of the Republic;

(b) construct and maintain an electron ic communications
network or electronic communications facilities upon,
under, over, along or across any land , including any
street, road, footpath or land reserved for public purposes,
any railway and any waterway of the Republic; and

(c) alter or remove its electronic communications network or
electronic communications facilities, and may for that
purpose attach wires, stays or any other kind of support to
any building or other structure.”

[34] The minority in Link Africa would have found that this section infringes section
25 of the Constitution (the right to property). The majority disagreed. It held that
“the rights s 22 grants are similar to a general servitude ”5 and must thus be
exercised with due regard to the constraints to which general serv itudes are
subject. The majority then set out at some lengths what those constraints are.

5 Ibid at para [142].
14



Because of its relevance to the present case, it is appropriate to quote a few
paragraphs from the majority’s exposition:6

‘[142] … These [general servitude rights] allow the dominant owner to
select the essential incidental rights of the necessary premises and to
take access to them as needed for the exercise of the servitude. But the
right is not unrestricted. The dominant servitude-holder cannot just barge
in. A large part of the argument on behalf of the City of Tshwane and
Msunduzi was premised on the outrageous notion of the licensee just
barging in, brazenly disregarding municipal protections and duties and
works. That can never be. It is alien to our law's conception of rights over
another's property. As stated in Hollmann [Hollmann and Another v
Estate Latre 1970 (3) SA 638 (A) at 645D ], exercise of a servitude is
subject to the important condition that incidental rights must be
“exercised civiliter”.

[143] This court has embraced the principle that rights over the property
of another must be exercised civiliter modo. In Motswagae [Motswagae
and Others v Rustenburg Local Municipality and Another 2013 (2) SA
613 (CC) at para 14 ], Yacoob J on behalf of the court stated that “the
common law requires that a servitude be exercised civiliter modo ”. The
court translated the Latin into plainer language. It said this meant that a
servitude must be exercised “respectfully and with due caution”.

[144] What does it mean to exercise a right to enter another's property
respectfully and with due caution? Our existing law tells us. It is bound
up with the facts. And the common law is amply flexible and adaptable
enough to cater for the novel nee ds the statute creates. Electronic
communications networks may be constructed over the land of others
only with respect and due caution. This is the path away from consigning

6 Footnotes have been omitted; case citations have been added in full in square brackets.
15



important statutory provisions, serving a vital public function, to
oblivion…

[150] From this it appears that the following general principles apply to
our common law of servitudes:

(a) Servitudes may not be enforced on landowners, except in the case
of a way of necessity. …

(b) The holder of the right of a general servitude may select the
essential incidental rights to exercise the servitude, like the
premises needed and the access thereto. This selection must be
exercised in a civil or reasonable manner (civiliter). Disputes about
this choice must also be determined in court if no agr eement
between the parties can be reached.

(c) Where changed circumstances require it, the common law of
servitudes must be adapted to arrive at a solution that is just to the
parties and does not prejudice them. In the case of enforced
servitudes this must be done in a manner that least inconveniences
the servient owner.’7

[35] The majority also summarised the requirements applicable to “enforced general
servitudes” such as those imposed by section 22 of the ECA as follows:

“[152] This means:


7 In similar vein, the Supreme Court of Appeal stated in Anglo Operations Ltd v Sandhurst
Estates (Pty) Ltd 2007 (2) SA 363 (SCA) at para [21] (in a passage quoted by the majority (at fn.114)):
'(i)n accordance with the principles applicable to servitudes, the owner of a servient property is bound
to allow the holder to do whatever is reasonably necessary for the proper exercise of his rights. The
holder of the servitude is in turn bound to exercise his rights civiliter modo, that is, reasonably viewed,
with as much possible consideration and with the least possible inconvenience to the servient property
and its owner.'
16



(a) Network licensees may select the premises and access to them for
the purposes of constructing, maintaining, altering or removing their
electronic communications network or facilities in taking action in
terms of s 22(1);

(b) this selection must be done in a civil and reasonable manner. This
would include giving reasonable notice to the owner of the property
where they intend locating their works. The proposed access to the
property must be determined in consultation with the owner;

(c) compensation in proportion to the advantage gained by the network
licensees and the disadvantages suffered by the owner is payable
in respect of the exercise of the public servitudes s 22(1) grants;
and

(d) where disputes arise about the manner of exercising the rights
under s 22(1) or the extent of the compensation payable, these
must be determined by way of dispute resolution to the extent that
it is possible, or by way of adjudication. Access to the property in
the absence of resolution will be unlawful.”

[36] In the present case we are not concerned with a servitude imposed by statute;
but instead with one imposed under subdivision conditions which the owner of
the as then undivided erf was at liberty to accept or reject (albeit that a rejection
would mean that the erf could not be subdivided). No question of compensation
can accordingly arise – and the conditions could thus legitimately exclude it (as
they did). Nor, in my view, must a dispute between the property owner and the
City as to the manner of the City’s exercise of the rights be resolved by
adjudication. However, the general civiliter modo requirement would clearly
apply, and indeed could be regarded as implied by the references to
reasonableness in the clause 3.5.1. And, as noted in clause (b) of paragraph
[152] of the majority judgment in Link Africa, the exercise of a right in a “ civil
and reasonable manner” would “include giving reasonable notice to the owner
17



of the property where they intend locating their works ” and also mean that the
“proposed access to the property must be determined in consultation with the
owner”.8

[37] The requirement of sufficient notification of and consultation with the landowner
is also consistent with the fact that the City’s decision to instal a sewerage
pipeline over the Rosevean property would appear to constitute administrative
action, with the result that the procedural fairness requirements in section 3
(and potentially, too, section 4) of the Pr omotion of Administrative Justice Act,
3 of 2000 (PAJA) would be applicable. As the Constitutional Court noted in Link
Africa,9 the Supreme Court of Appeal has, in MTN10 and Msunduzi11 held that
action taken by a licensee under s 22(1) is administrative a ction for the
purposes of the PAJA. In a section 22 context, the actor (the licensee) would,
as the Constitutional Court noted, be a private entity wielding public power . In
the view of the minority in Link Africa,12 that was an important reason why the
licensee’s actions did not constitute administrative action. The City is, by
contrast, an organ of state whose actions axiomatically involve the exercise of
public power. The minority’s concern is therefore not applicable in the present
case; while I would a nyway be bound by the Supreme Court of Appeal’s
decisions (which were expressly not overturned in Link Africa).13

[38] Rosevean did not rely on PAJA in its affidavits or heads of argument, though it
embraced the notion that the City ’s conduct involved administr ative action in
supplementary written submissions which it handed up at the hearing, after the
legal nature of the City’s actions had been raised by the court. As the correct
characterisation of the City’s decision to construct a sewerage line over the

8 As noted by the majority in Link Africa (at para 155), it was unnecessary for the relevant
provision to have expressly included those requirements . That is all the more so in this instance as
clause 3.5.1 expressly requires the municipality to act reasonably.
9 At para [158] (see also para [75]).
10 Mobile Telephone Networks (Pty) Ltd v SMI Trading CC 2012 (6) SA 638 (SCA) at para [21].
11 Msunduzi Municipality v Dark Fibre Africa [2014] ZASCA 165 at para [20].
12 At paras [65] to [76].
13 The majority held that it was unnecessary for the question of the applicability of PAJA to s 22(1)
to be determined in the light of the various statutory provisions and common law principles to which it
had referred (para [159]).
18



Rosevean property is a legal question, Rosevean’s failure to raise this
contention earlier cannot preclude the Court from taking cognisance of it. In any
event, the City’s notification obligations also arose under the common law, and
PAJA thus reinforces t he already existing position rather than imposing a
materially different obligation.

[39] Rosevean’s counsel also sought to rely on the Expropriation Act, 63 of 1975,
as read with the City’s Immovable Property By -law, 2015, in support of its
argument that Rosevean had to be formally notified of the proposed sewerage
line installation prior to seeking to construct it. Rosevean argued that this
obligation arose pursuant to section 3(2) of the By-law,14 read with section 7 of
the Expropriation Act.15 There was, however, no expropriation in this instance
(nor any temporary taking of the right to use property) ; merely a deprivation of
property, which, as section 25 of the Constitution (and the case-law thereon16)
makes clear, is something different. While I am aware that the majority in Link
Africa remarked that in certain circumstances a servitude may be treated “as a
kind of expropriation”,17 the Expropriation Act thus did not, in my view, apply.18
In any event, a notification requirement would, as explained above, exist under
the common law , and so Rosevean ’s reliance on the Expropriation Act was
unnecessary in this context.

[40] As will be apparent from the factual summary earlier in this judgment, there is
nothing to indicate that the City notified Rosevean before insta lling the

14 Section 3(2) of the Immovable Property By -law states that: “ Subject to t he provisions of the
Expropriation Act, 1975 … the City may expropriate immovable property and rights in immovable
property or may temporarily take the right to use immovable property”.
15 Which is headed “Notification that property is to be expropriated or is to be used temporarily”.
16 See e.g., First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue
Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768
(CC); and Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v
Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC for Local
Government and Housing, Gauteng and Others (KwaZulu-Natal Law Society and Msunduzi Municipality
as Amici Curiae) 2005 (1) SA 530 (CC).
17 At para 149.
18 It is accordingly irrelevant whether, as the City’s counsel contended, the applicant was
permitted to raise that argument for the first time in its heads of argument.
19



contentious sewerage pipeline.19 That was also doubtless why the City officials
and Nejeni entered the Rosevean property via a neighbouring property, rather
than via the front entrance of 7 M[...] Road. There can consequently also be no
suggestion that Rosevean was advised by the City of what it was proposing to
do.20 Whether deliberately or otherwise, the City officials did not contact
Rosevean during September and October 2020 and were not even able to be
reached by Rosevean’s representatives (who made various outreaches) until
after the pipeline had been constructed. The high -water mark of the City’s
position is that Rosevean should supposedly have been aware that the City’s
contractor, Nejeni, had ente red its property via a neighbour ing erf and was
constructing a sewerage pipeline, but did not object. That is clearly insufficient
to meet the notification and consultation requirements set out above. It is also
anyway undermined by the City’s reference to the pipeline as a “secluded” one
which was not visible from the dwelling on the Rosevean property or generally
observable.21 At best for the City, it s officials and contractor did not know
whether Rosevean was aware that a pipeline was being installed or whether
Rosevean was amenable to its contractor being on the Rosevean property, and
had no idea whether the design and route of the proposed pipeline was
objectionable to Rosevean.


19 It is common cause that, as the City’s counsel acknowledged in argument, there was no written
notice from the City. Nor was there even any verbal communication from the City to a Rosevean
representative during the crucial period in 2020. The City was accordingly constrained to rely on the
interactions at the neighbours’ meeting on 2 October 2020; but as I have indicated in paragraph [24]
above, the discussions there cannot avail the City, whose officials were not at the meeting.
20 The City seeks to rely on the fact that De Nobrega states that he pointed out the route he
proposed to Chavez during a neighbourhood meeting, but whatever was conveyed at that meeting can
hardly constitute notice by the City. De Nobrega also in any event downplays his role at the meeting his
affidavit, stating inter alia that: ‘At the meeting I made suggestions having regard to my knowledge of
the sewerage related issues but explained that I am no t an expert in these matters and that the First
Respondent [the City] was the responsible council to deal with sewerage related issues .’
21 The City placed some emphasis on this aspect, as shown by its definition of the pipe as the
“secluded pipe ”. It was for example submitted in the City’s supplementary heads of argument
[underlined emphasis in original]:
‘A better description of the pipe would be the ‘secluded pipe’ since it is not visible to anyone who attends
at the applicant’s property. This is substantiated by the fact that … Mr Chavez, who was on the property
for at least 8 days whilst the secluded pipe was being installed, alleges that he did not even know there
were workmen on the property.
The fact of the matter is that this secluded pipe runs across the dense and mountainous slope of the
applicant’s property. It is neither visible to the public nor visible to the owners from the vantage points
of their respective properties.’
20



[41] Notwithstanding its powers under clause 3.5.1 of the subdivision conditions, the
City could not proceed on that basis. Its installation of the sewerage pipeline
over the Rosevean property between 8 and 20 October 2020 was therefore
unlawful; and Rosevean is entitled to a declaratory order to that effect (as
sought in prayer 1 of its notice of motion),22 albeit that, as I discuss in the next
section, the order should be suspended to prevent the dislocation that might
otherwise ensue.

VII. THE APPROPRIATE RELIEF TO BE GRANTED IN RESPECT OF THE
SEWERAGE PIPELINE DISPUTE

[42] It would clearly be disastrous for the owners and residents of 1 and 3 M[...]
Road, as well as deleterious to Rosevean and the Hotel, if the sewerage
pipeline which currently links 1, 3, 5, 7 and 9 M[...] Road to the municipal
sewerage system below 9 M[...] Road were to be disconnected on the boundary
of 3 and 5 M[...] Road. That would also be likely to cause a nuisance and a
health hazard.

[43] I do not however agree with the City that the relief sought by Rosevean against
the City would accordingly be “incompetent”, or that it must be refused in order
to avoid a “ sewage disaster”. While an order which was of immediate effect
would have that consequence, a suspension of the order of invalidity for a
suitable period to allow the City to correct the defect (as envisaged by section
172(1)(b)(ii) of the Constitution), and a directive which was synchronized with
that suspension, should not cause harm to any of the affected property owners.
There is no suggestion that the City could not construct an alternative pipe line
(potentially underground or partly underground, or, if excavation is impractical,

22 In reaching t his conclusion, I have considered and rejected the City’s in limine objection that
the applicant has relied on hearsay evidence . I have also, as indicated above, rejected the City’s
argument (also framed as an in limine objection, though in fact a point go ing to the merits) about the
applicant supposedly being precluded from obtaining the relief it seeks against the City as a result of
material disputes of fact.
21



at ground level 23) that was less unsightly , and then connect the rest of the
existing pipeline to that new section once completed; and it would also plainly
be possible for the City to notify Rosevean about the pipeline and its positio n,
and afford it an opportunity to comment on the proposal, before doing any
further work.

[44] As the sewerage pipeline has by this time been in place for almost four years,
and Rosevean has par tly been to blame for the slow pace of this litigation, it
cannot contend for any urgency with regard to remedial measures. There may
anyway be complications from the City’s side if there is no appropriate tender
award in place. It is also necessary to pro vide for a reasonable period for
Rosevean to provide its comments to the City, and for the City to evaluate them,
and, potentially, too, for any experts that might need to be involved to provide
input. Bearing in mind the importance of ensuring that the cu rrent functioning
sewerage system is not disrupted until there is a new sewage pipe in place to
convey sewerage over the Rosevean property, I shall therefore suspend the
order of invalidity for a period of fifteen (15) months. The directive that the City
remove the existing sewer line over the Rosevean property will also
consequently only take effect fifteen months after the date of this judgment.24

[45] That period should be more than sufficient given the City’s and Rosevean’s
respective rights and obligations in terms of clause 3.5.1 of the subdivision
conditions, which, in the interests of clarity (and avoiding disputes during the
suspension period) I summarise below.

[46] In summary, the finding in section VI. above is that (i) the City could not enter
private property, to do work contemplated by clause 3.5.1 of the subdivision

23 Particularly if, as Wooll has stated, the pipeline on his property is above ground, it may be
difficult for Rosevean to contend that its pipeline should be buried, though this would ultimately depend
on factors such as the terrain and the gradient, and the effect on feasible future development.
24 In 410 Voortrekker Road Property Holdings CC v Minister of Home Affairs and others 2010 (8)
BCLR 785 (WCC); [2010] 4 All SA 414 (WCC), this Court ( per Binns-Ward J) suspended an interdict
for a period of six months, alternatively four months to allow the Department of Home Affairs to
regularize its operations. The declaration of unlawfulness that the Court also made in that case was not
suspended. In my view, it would however be appropriate, as well in line with section 172(1)( a) of the
Constitution, to suspend both orders in this case.
22



conditions, without expressly notifying the owners and advising when and
where they will be accessing the property and for what purpose, and also
making reasonable accommodations in response to requests or objections from
the property owner; and (ii) the City was also obliged to advise Rosevean in this
instance as to the route and design of its proposed pipeline, to give Rosevean
an opportunity to comment thereon, and to thereafter take Rosev ean’s
comments and all other relevant factors into account before making a final
decision as to the nature and location of the pipeline.

[47] In terms of clause 3.5.1, as read with the common law and the Constitution, the
City has the final decision as to the pipeline. Rosevean can neither refuse the
City entry to its property for purposes of assessing, constructing and checking
the pipeline, nor refuse to accept a reasonable route or design of the pipeline.
Provided that the City respects and seeks to accommod ate Rosevean’s
concerns where possible, and that its final decision regarding the pipeline is
consistent is lawful, reasonable and procedurally fair, Rosevean must accept
what the City has proposed. Rosevean cannot insist on the City doing what it
(Rosevean) wants; and, as noted above, it also cannot – as it did previously
through Mr Kelly – insist on the sewerage pipeline following the servitude of the
water pipeline in favour of the Hotel.

VIII. THE APPLICANT’S REQUEST FOR AN INSPECTION IN LOCO

[48] As mentioned in the introduction, Rosevean’s counsel requested at the hearing
that there be an inspection in loco . The respondents did not agree to that
request. I also expressed misgivings about it. I was not however asked to make
an in limine ruling on the issue and the various parties then proceeded to argue
their respective cases, as the applicant seemed to accept would happen. The
applicant nevertheless did not abandon the request and repeated it in closing
argument. It is therefore for necessary for me to address it.

23



[49] A party’s right to apply for an inspection in loco during the hearing of an action
(i.e., in a trial) is well -established.25 The Uniform Rules also expressly
contemplate an inspection in loco in the case of trials, with Rule 39(16)(d) (part
of the rule headed “ Trial”) providing that “ [a] record shall be made of … the
proceedings of the court generally (including any inspection in loco and any
matter demonstrated by any witness in court”.

[50] The Uniform Rules do not mention the possibility of an inspection in loco in
application proceedings , whether in Rule 6 (which is specifically devoted to
applications) or elsewhere. Nor have I been able to find a judgment which holds,
after a consideration of the issue, that inspections in loco can appropriately be
ordered in application proceedings.

[51] There is an obvious difference between applications and actions in this context.
In actions, the Court is enjoined to consider all evidence when deciding
whether, on a balance of probabilities, the plaintiff has proved its case. Any
evidence adduced by way of an inspection in loco would thus simply add
(potentially powerfully) to the factual matrix which the Court must consider when
deciding whethe r to accept the plaintiff’s or the defendant’s averments. By
contrast, in applications, the Court is required to accept the respondent’s factual
version, unless it is unsubstantiated, or plainly implausible and contrived , and
can therefore be dismissed out of hand. That approach to the assessment of
evidence could not be applied to evidence produced pursuant to an inspection
in loco. For an inspection in loco would produce “real evidence”,26 which could
demonstrate definitively whether the applicant’s or the respondent’s version on
a particular issue is correct; and , in the event of the incontrovertible physical
evidence supporting the applicant’s averments, the court would presumably be
obliged the Court to accept the applicant’s version , contrary to the us ual

25 See Cilliers at al Herbstein & Van Winsen: The Civil Practice of the High Courts and Supreme
Court of Appeal of South Africa 5th ed. Vol. 1 p 900.
26 R v Sewpaul 1949 (4) SA 978 (N) at 980; Newell v Cronje and Another 1985 (4) SA 692 (E) at
697A-B.
24



position in applications (for otherwise the inspection would have been
pointless).

[52] The position in this regard can be neatly illustrated in the present case with
reference to a factual issue that was in dispute between the applicant
(Rosevean) and the fourth respondent (Wooll). According to Rosevean, the new
sewerage pipeline is underground when it traverses the Wooll property (7 M[...]
Road), and thus does not raise the same concerns there as on the Rosevean
property (5 M[...] Road), where it is af fixed on poles well above ground level.
Wooll denies the accuracy of that assertion , and insists that the sewerage
pipeline is above ground on his property as well. Applying the usual test in
application proceedings, I would have to accept Wooll’s version. However, if an
inspection in loco were to reveal that Rosevean is correct and that the sewerage
pipeline is in fact below ground on the Wooll property, I could hardly then ignore
the real position and proceed on the basis that Wooll’s version must prevail.

[53] The High Court does of course have the “inherent power” under section 173 of
the Constitution to “ protect and regulate [its] own process ”. The Court would
thus have the p ower to grant a request for an inspection in loco in an
application, should it consider it appropriate . In my view, a court should
nevertheless be cautious about doing so, given that granting an applicant’s
request for an inspection in loco would effectively mean allowing it to subvert
the usual test applicable to the resolution of disputes of fact in motion
proceedings. That concern has particular resonance in the present matter given
that the applicant unsuccessfully sought at an earlier stage to refer is sues to
oral evidence in an attempt to get round the difficulties occasioned by the
factual disputes on the papers. Affording Rosevean another way of
circumventing a factual dispute with Wooll would accordingly seem
inappropriate.

[54] In any event, an inspecti on in loco in this case appeared to me to be likely of
limited utility, given that the dispute over the construction of the new sewerage
pipeline is largely a legal one, while the factual disputes besetting the
25



applicant’s claims against its neighbours would not have been addressed by a
physical inspection of the property in the second half of 2024. Furthermore,
were an inspection to have been held, the hearing would not only not have been
able to be completed within the two days for which it had been set d own, but
might have had to be postponed to a later date, to allow a note on the inspection
to be prepared27 and supplementary argument to be submitted; and, given the
delays that have already occurred in this matter, that would not have been in
the interests of justice.

[55] For various reasons, I consequently did not accede to the applicant’s request
for an inspection in loco during the hearing and consider it appropriate to
dismiss it.

IX. ROSEVEAN’S CLAIM AGAINST THE HOTEL AND DE NOBREGA

[56] Rosevean originally sought the following declaratory and mandatory
interdictory relief against De Nobrega:

56.1. an order ‘declaring that the removal of a section of the sewer pipe that
connected the applicant’s property to the sewer system on the property
of t he second respondent, by the third respondent was unlawful ’
[prayer 3 of the notice of motion]; and

56.2. an order ‘directing that the third respondent reconnect the sewer line
from the applicant’s property by replacing the section of the sewer pipe
referred to in prayer 3’ [prayer 6 of the notice of motion].


27 See e.g., Bayer SA (Pty) Ltd v Viljoen 1990 (2) SA 647 (A) at 659I-660B, confirming what was
stated in Kruger v Ludick 1947 (3) SA 23 (A) at 31.
26



[57] Rosevean subsequently sought to withdraw its claims against the second and
third respondents, but without tendering costs. The Hotel and De Nobrega
understandably insisted on their costs. Rosevean then decided to continue to
seek relief against them, and t o persist in seeking both of the prayers quoted
above.
[58]
[59] At the hearing of this matter, Rosevean’s counsel abandoned the mandatory
interdictory relief contained in prayer 6 of its notice of motion (correctly so, as it
would not have obtained such relief), an d merely asked that it be granted the
declaratory order sought in prayer 3 of its notice of motion. A fundamental
difficulty with that declaratory relief (aggravated by the abandoning of the
related interdictory relief) is however that it is now entirely a cademic. Whether
or not the original pipeline should have been severed where it entered the Hotel
property back in 2017/2018 – if indeed it was – is of no continued relevance in
2024.

[60] Section 21(1)( c) of the Superior Courts Act, 10 of 2013 (the successor to
section 19(1)(a)(iii) of the Supreme Court Act, 59 of 1959) provides that the
High Court has the power ‘in its discretion, and at the instance of any interested
person, to enquire into and determine any existing, future or contingent right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination ’. That section, like its statutory
predecessor, contemplates a twofold test: first, whether the applicant is a
person interested in an “existing, future or contingent right or obligation”; and if
so, whether the case is a proper one for the exercise of the discretion conferred
upon it.28 Even aside from the general principle that a court will not pronounce
on academic issues or ones which will have no concrete effect,29 a court should

28 Durban City Council Appellant v Association of Building Societies Respondent 1942 AD 27 at
32; Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) at
paras [15]-[17]; Minister of Finance v Oakbay Investments (Pty) Ltd and others; Oakbay Investments
(Pty) Ltd and others v Director of the Financial Intelligence Centre 2018 (3) SA 515 (GP) at para [52].
29 Minister of Justice and others v Estate S transham-Ford 2017 (3) SA 152 (SCA) at paras [22] -
[23] (where the Court inter alia stated: “Since the advent of an enforceable Bill of Rights, many test
cases have been brought with a view to establishing some broader principle. But none have been
brought in circumstances where the cause of action advanced had been extinguished before judgment

27



therefore not grant a declaratory order where the declaratory relief will have no
utility or practical significance.30

[61] In the circumstances, t he declaratory order sought by Rosevean against the
Hotel and De Nobrega would neither be competent nor appropriate.

[62] In addition, there is a dispute of fact as to whether De Nobrega was responsible
for the pipe being cut off, and indee d whether it was severed at all, or simply
broke. While Rosevean’s version strikes me as more plausible, that is not the
test in motion proceedings. It would have been necessary for De Nobrega to
have been cross-examined in order for that dispute to be res olved. Rosevean
recognised this when seeking a referral of issues to oral evidence. Having failed
in that endeavour, it must accept that its case against De Nobrega in this regard
is unsustainable.

[63] A further problem with that relief is that, once there was an alternative sewerage
line for the Rosevean property , there was no obligation on the Hotel to allow
Rosevean to use its sewer. Under the agreement concluded between the Hotel
(represented by De Nobrega) and Stein in 1994, the Hotel guaranteed the use
of its sewer for a minimum period of ten years up to a maximum period of fifty
years, from the date of the agreement, or such time as the land making up Erf
1070 was capable of being connected to the municipal system, whichever is
the earlier. As De Nobrega has explained, the Rosevean property was not only
capable of being linked to the municipal sewer by December 2017, but was in
fact so connected. That being so, the Hotel was no longer required to grant the
Rosevean property access to its sewer by means of a pipe extending from the
Rosevean property into the Hotel property; and as a result, it was of no moment
whether the original pipeline remained intact.

at first instance. … It is a prerequisite for the exercise of the discretion that any order the court may
ultimately make will have some practical effect either on th e parties or on others .”); Radio Pretoria v
Chairman, Independent Communications Authority South Africa 2005 (1) SA 47 (SCA) at paras [39] -
[46]; JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514
(CC) at para [15] (and the cases cited at fn. 15).
30 See e.g. Herbstein & Van Winsen: The Civil Practice of the High Courts and the Supreme Court
of Appeal of South Africa 5th ed. Vol. 2 at pp 1438–1440.
28




[64] The prayers directed at the second respondent (and indirectly the third
respondent) must consequently be dismissed with costs.

X. ROSEVEAN’S CLAIM AGAINST WOOLL

[65] Rosevean also sought declaratory and directory (interdictory) relief against
Wooll. More particularly, it sought orders:

65.1. ‘declaring that the blocking of the sewer flow from the applicant’s
property, prior to [the] installation of the sewer line on or about
21 October 2020, as referred to in prayer 1, by the fourth respondent
was unlawful’ [prayer 2]; and

65.2. ‘directing that the fourth respondent remove any blockage of the existing
sewer system referred to in prayer 4’ [prayer 5].

[66] Rosevean’s counsel indicated at the hearing (correctly) that the interdictory
relief was no longer needed, though he contended that Rosevean was
nevertheless entitled to its costs in respect thereof, in light of Wooll’s alleged
capping of its sewerage line in mid-2020. Rosevean also continued to press for
a declaratory order against Wooll.

[67] The difficulties with that declaratory relief are in many ways similar to the ones
which beset Rosevean’s claim against the Hotel and De Nobrega , though in
reverse order. The first and most fundamental difficulty with Rosevean’s claim
against Wooll is that there is an irreconcilable dispute of fact as to whether the
blockage of the sewerage system on the Rosevean property in mid -2020 was
attributable to the actions of Wooll. In the light of its plumber’s report, one can
understand why Rosevean would have accused Wooll, but whether its
suspicions were well -founded is something that could not be determined
without oral evidence, which Rosevean has, as mentioned, been denied. That
also disposes of any suggestion that a mandatory interdict could be granted
29



against Wooll, or that he could be mulcted with costs as a result of his alleged
conduct in 2020.

[68] Furthermore, the declaratory relief, while still potentially raising a live issue in
December 2020 when this application was brought , has long since become
academic. For this reason, too, it cannot be granted.

[69] Rosevean’s claim against Wooll must therefore be dismissed as well. As Wooll
appeared in person, there are no legal costs for Rosevean to pay, and Wooll
also did not ask for any other costs.

XI. CONCLUSION AND COSTS

[70] Fo the reasons given above:

70.1. Rosevean is entitled to declaratory and directory relief against the City
in respect of the contentious sewerage pipeline, albeit that this relief is
to be suspended to avoid the prejudice that would otherwise ensue to
the properties in and around M[...] Road, Hout Bay;

70.2. Rosevean’s claims against the third respondent (De Nobrega) and the
fourth respondent (Wooll) should be dismissed.

[71] As it has been successful as against the City, Rosevean is entitled to its costs
for that part of the application. Considerable portions of Rosevean’s affidavits
and argument were directed at Rosevean’s claims against the second and third,
and fourth respondents . The costs award in Rosevean’s favour must reflect
that. The City shall accordingly be ordered to pay only 50% of Rosevean’s costs
in the main application. (I refer to the main application to distinguish it from the
interlocutory applications, which are subject to their own costs orders.)

[72] As to the scale on which counsel’s costs should be taxed:

30



72.1. Given the relative complexity of Rosevean’s case against the City, it is
appropriate to order that the costs of Rosevean’s counsel which are
recoverable as against the City be taxed on Scale B.

72.2. As Rosevean’s case against De Nobrega and the Hotel did not , by
contrast, raise any difficult issues (and indeed, was effectively
unarguable by the time of the hearing), a lower scale is warranted in that
regard. Counsel’s costs for that aspect should therefore, in my view, be
taxed (in favour of De Nobrega) on Scale A.

ORDER

[73] I accordingly make the following order:

1. It is declared that the installation of a sewer line by the first respondent
across the property of the applicant, situated at 5 M[...] Road, Hout Bay,
between 8 and 20 October 2020, was unlawful.

2. The order in paragraph 1 above is suspended for a period of fifteen (15)
months from the date of this order.

3. The first respondent is directed to remove the current sewer line, referred
to in paragraph 1 above, from the applicant’s property by the end of the
period of suspension referred to in paragraph 2.

4. The applicant’s claims against the second (and indirectly the third) and
fourth respondents are all dismissed.

5. The applicant must pay the costs of the second and third respondents in
the main application, with counsel’s costs being taxed on scale A.

6. The first respondent must pay 50% of the applicant’s costs in the main
application, with counsel’s costs being taxed on scale B.
31





_________________________
ACTING JUDGE P FARLAM


For applicant: Adv Paul Tredoux
Instructed by: Arlene Duval & Associates (Cape Town) c/o Mauritz Briers & Associates
(Cape Town)

For first respondent: Adv S Mahomed
Instructed by: Marais Muller Hendricks Inc. (Cape Town)

For second and third respondents: Adv Andrew Morrissey
Instructed by : Smith Tabata Buchanan Boyes Inc. (Claremont) c/o Smith Tabata
Buchanan Boyes Inc. (Cape Town)

Fourth respondent in person