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[2013] ZAWCHC 137
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City of Cape Town v The Body Corporate of the Harbour's Edge Sectional Title Development (13234/12) [2013] ZAWCHC 137 (18 September 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
Case
No: 13234/12
In
the matter between:
THE
CITY OF CAPE TOWN
..............................................................................
Applicant
and
THE
BODY CORPORATE OF
HARBOUR’S
EDGE SECTIONAL
TITLE
DEVELOPMENT
.................................................................................
Respondent
___________________________________________________________________
JUDGMENT DELIVERED ON
18 SEPTEMBER 2013
BOQWANA AJ
Introduction
[1] This is an
application concerning the interpretation of a notarial deed of
servitude where the applicant seeks a final order:
1.1. Declaring that the
respondent is in breach of the provisions of the notarial deed of
servitude, with protocol number 238, registered
over the property
known as Remainder Erf 526, Gordon’s Bay, in the City of Cape
Town, Stellenbosch Division, Western Cape
Province in extent 16,4155
hectares held by Crown Grant No 111/1931, and Remainder Erf 4702,
Gordon’s Bay, held by deed of
grant no T74973/1994 in extent
5924 square metres (‘the property’);
1.2. Directing the
respondent to remove gates, barriers and access control mechanisms to
the underground parking area on the property
in respect of which the
servitude was granted, (‘the underground parking area’)
and which prevent the general public
from accessing the underground
parking area on an
ad hoc
basis for the purposes of parking;
1.3. Directing the
respondent to take measures to restore access to the underground
parking area to the general public on an
ad hoc
basis for the
purposes of parking within five days of the date of the order;
1.4. Interdicting and
restraining the respondent from implementing access control measures
aimed at preventing the general public
from accessing the underground
parking area on an
ad hoc
basis for the purposes of parking.
[2] The respondent
brought an application to strike out certain paragraphs of the
founding affidavit deposed to by Schnackenberg
who is a manager,
property holding employed by the applicant, on the basis that they
contained inadmissible hearsay evidence and
certain identified
paragraphs contained facts which were irrelevant in the determination
of the issues at stake in the proceedings
and certain paragraphs in
the replying affidavit in that they raised new matter.
Factual
background
[3] The applicant is the
owner of the property described as remainder Erf 526 Gordon’s
Bay, in the City of Cape Town, Stellenbosch
Division, Western
Province, in extent 16,4155 hectares and Remainder Erf 4702 Gordon’s
Bay, in the City of Cape Town, Stellenbosch
Division, Western Cape
Province in extent 5924 hectares (‘the servient tenement’).
[4] On 08 June 2006, the
applicant granted a servitude over the servient tenement to Meridian
Bay Restaurant (Pty) Ltd (‘Meridian
Bay’) for the
purposes of constructing an underground parking area and a ramp for
Harbour’s Edge which was to be erected
in Erf 4600, Gordon’s
Bay. The servitude area consists of a ramp for vehicles and a portion
of the underground parking serving
Harbour’s Edge, the
remainder of the underground parking comprising section 1 of
Harbour’s Edge.
[5] Meridian Bay was at
the time the registered owner of the dominant tenement section 1 in
Erf 4600 described as Sectional Plan
No. SS390/1997 in the scheme
known as Harbour’s Edge. The dominant tenement is adjacent to
the property over which the servitude
was registered. The respondent
is a successor in title to Meridian Bay. The servitude is to operate
in perpetuity and it binds
all successors in title.
[6] Harbour’s Edge
comprises commercial businesses including restaurants, a hotel, a
conference centre and a residential component.
[7] Paragraph 3 of the
notarial deed of servitude provides that :
‘
The
aforesaid servitudes are granted with the following obligation upon
the owner of Section 1 Meridian Bay aforesaid namely that
the
underground parking on the servitude area must be available to the
General Public for parking purposes at market related rates
.
’
(
Own
emphasis
)
[8] It is common cause
that on 30 November 2011 the respondent issued a notice to all owners
in Harbours Edge advising them of the
trustees’ decision that
an automated garage gate system will become operative on 15 December
2011 at 17h00.
[9] In terms of this new
system parking would be made available on the basis that those
persons wishing to use the underground parking
facilities (including
the servitude area) would be required to obtain a parking disc by
paying a deposit of R500.00 per parking
bay and a monthly fee of R500
for non-owners and R150 for owners. This system was accordingly
implemented.
[10] It appears from the
respondent’s answering affidavit that this new arrangement had
not existed before. The respondent
alleges that when the underground
parking servitude area was under the control of Meridian Bay, members
of the general public were
allowed access on an uncontrolled basis
and this resulted in the theft of a speed boat with two outboard
motors belonging to one
of the penthouse owners which was never
recovered.
[11] The new system,
according to the respondent, enhances the security of the area and
members of the general public using it.
Discussion
[12] The issue before
this Court is whether the system introduced by the respondent is in
breach of clause 3 of the notarial deed
of servitude. The applicant’s
primary argument is that the system and in particular the monthly
rental requirement excludes
an overwhelming majority of the general
public.
[13] The respondent
argues that the measures it has put in place do not offend the
provisions of clause 3 for the following reasons.
First, it argues
that clause 3 does not impose an obligation that parking should be
made available on a
casual
or
ad hoc
basis. Secondly,
members of the general public are allowed to park as long as they can
obtain a disc and pay the market related
fee it charges. Thirdly, the
servitude was granted to serve the scheme. Accordingly, the ‘general
public’ in clause
3 should be interpreted to mean users of the
facilities in the scheme and not just anybody visiting the area.
According to the
respondent the majority of the users of the
facilities are regular clientele who make use of the facilities.
[14]
In the decision of
Royal
Hotel Riversdale (Pty) Ltd v Simon NO
(713/11)
[2012]
ZASCA 118
(18 September 2012)
unreported,
at paragraph 12, the Supreme Court of Appeal, said the following:
‘
[12] The
task of the court is to determine the intention of the parties to the
agreement that created the servitude. In so far as
the language used
by them is clear and unambiguous effect must be given to it. But even
clear expression can benefit from an appreciation
of its context in
the written agreement against the background of circumstances
relevant to its conclusion provided that the plain
meaning is not
thereby contradicted or varied.’
[15] Not much of the
background leading to the granting of the servitude has been placed
before the Court in this case. In any event,
the starting point in my
view is the actual wording of the contract. In
Johl and Another v
Nobre and Others (23841/2010)
[2012] ZAWCHC 20
(20 March 2012), at
paragraph 16
unreported, Meer J said:
‘
Where
the wording of the servitude is clear, it must be given the ordinary
grammatical meaning and in such circumstances the Court
will not have
recourse to the surrounding circumstances.’
[16] The wording of the
servitude is in my view clear. The servitude requires parking to be
made available to the general public
at market related rates. The
Oxford English Dictionary meaning of the word ‘available’
is ‘
to render accessible for use
’ or ‘
place
at one’s disposal
or ‘
within one’s reach
’.
This much was confirmed by the decision of
Reynolds Brothers Ltd v
Chairman, Local Road Transportation Board, Johannesburg and another
1985 (2) SA 790
(A).
Context of each case is without a doubt
important. In this case the word ‘available’ should be
read within the context
of the words ‘general public’
used in clause 3 in order to understand its meaning.
[17] The Oxford
Dictionary defines the word ‘
general
’ to mean
‘
affecting or concerning all or most
people or things
;
widespread
’. Public is
defined as ‘
concerning or open to the people as a whole,
‘
ordinary people in general; the
community
.
’
[18] From the definitions
above it is clear that general public cannot be confined to a certain
section of exclusive users of the
scheme. The general public in my
view refers to anybody wishing to use the underground parking
facilities whether they visit the
beach, or the sectional title
scheme facilities or the vicinity surrounding the title scheme. The
requirement of obtaining a monthly
disc excludes those members of the
public who do not have a monthly commitment to the scheme and who may
wish to visit the scheme
or other areas in the vicinity for a shorter
period. The grammatical meaning of the words ‘available to the
general public’
is in my view clear and the conduct of the
respondent is in conflict with those provisions.
[19] I further agree with
the remarks made by Meer J in the Johl decision when she said the
following at paragraphs 13 and 14:
‘
[13]
The relationship between the dominant and servient owners is governed
by the principle of reasonableness. See
Van
der Walt and Pienaar, Introduction to the Law of Property
4
th
edition
Juta 2004 at 274. Where there is a conflict of interests, the
interests of the dominant owner will have precedence over
those of
the servient owner, subject to the principle of reasonableness. The
holder of the servitude must exercise the servitude
civiliter
modo,
that
is, in a civilized and considerate way...
[14]
It
follows that the holder of the servitude may not increase the burden
on the servient property beyond the express or implied terms
of the
servitude. See LAWSA Vol 24 at para 544. The dominant owner cannot
make changes to the servient land that would cause the
servitude to
be more limiting to the servient owner as could have been reasonably
foreseen at the time when the servitude was agreed
upon. Importantly,
the dominant owner has no right to change the subject matter of the
servitude. See Hall, Servitudes 3
rd
Edition
Juta, 1973 at 133.
It
is accepted that he has the right to do what is requisite for the
enjoyment of his servitude, but this right is subject to the
condition that he imposes no greater additional burden upon the
servient property than is absolutely necessary.
See
also
London
and SA Exploration Co v Rouliot,
1890
Vol VIII S.C. 74 at 97.’
(
Own
emphasis)
[20] The respondent is
increasing the burden on the servient tenement beyond the express or
implied terms of the servitude. Accordingly,
as argued on behalf of
the applicant, the system introduced by the respondent results in
exclusive use of the underground parking
by those members of the
public who have a commitment to the scheme and excludes an
overwhelming majority of members of the general
public who do not.
[21] On the installation
of gates, the respondent as the holder of the servitude is in my view
entitled to control access into the
underground parking of the
servitude for security and other reasons. The issue of whether or not
the fee charged by the respondent
is market related is not the key
issue for the purposes of this inquiry.
[22] In conclusion, I am
satisfied that the applicant has met the requirements of a final
order in that it has established a clear
right in terms of the
notarial deed of servitude which has been infringed. No alternative
remedy has been shown to exist and all
the other avenues in trying to
resolve the matter and find solutions have been exhausted. It is not
necessary for me to consider
the issue of whether certain portions of
the affidavits should be struck out as they do not affect my
findings. The facts regarding
the introduction of the parking system
in December 2011 are admitted by the respondent.
[23] In regard to the
relief sought in the notice of motion, I agree with the respondent
that part of the relief sought may lead
to absurdity if the Court
were to grant the orders that the applicant is seeking. That however
does not mean the Court cannot grant
relief that it deems fit from
what it has ascertained the applicant’s case to be from the
founding affidavit. The costs follow
the result.
[24] In the
circumstances, the following order is made:
1. The respondent is
declared to be in breach of paragraph 3 of the notarial deed of
servitude with protocol number 238, registered
over the property
known as Remainder Erf 526, Gordon’s Bay, in the City of Cape
Town, Stellenbosch Division, Western Cape
Province in extent 16,4155
hectares held by Crown Grant No 111/1931, and Remainder Erf 4702,
Gordon’s Bay, held by deed of
grant no T74973/1994 in extent
5924 square metres by implementing a system requiring payment of a
deposit of R500.00 and a rental
of R600.00 per bay per month for
‘non-owners’;
2. The respondent is
directed to remove the system requiring payment of a deposit of R500
to obtain a parking disc and payment of
R600 per month for purposes
of underground parking in respect of the servitude area within 30
days of this order;
3. The respondent is
restrained and interdicted from implementing any system that would
prevent members of the general public from
accessing underground
parking in terms of paragraph 3 of the notarial deed of servitude;
4. The respondent must
pay the costs of the applicant.
___________________________
N
P BOQWANA
Acting
Judge of the High Court
APPEARANCES
FOR
THE APPLICANT: Advocate N Bawa
INSTRUCTED
BY: Fairbridges Attorneys, Cape Town
FOR
THE RESPONDENT: Advocate D Melunsky
INSTRUCTED BY:
Kulenkampff & Associates C/O C & A Frielander, Cape Town