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[2014] ZAWCHC 128
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Trustees For The Time Being of the Dewel Trust v Schlosz (11050/2014) [2014] ZAWCHC 128 (18 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Reportable
CASE
NO: 11050/2014
In
the matter between:
THE
TRUSTEES FOR THE TIME BEING OF THE DEWEL
TRUST
.....................................
Applicant
And
LINDY
SCHLOSZ
....................................................................................................................
Respondent
JUDGMENT:
18 AUGUST 2014
DAVIS
J
Introduction
[1]
Applicant seeks interim introductory relief
on the basis of a disputed oral agreement between the trust and
respondent the parties
are involved in an acrimonious building
dispute in Camps Bay. They are owners of adjacent properties on
Blinkwater Road,
Camps Bay. The respondent’s property is
located at 15 Blinkwater Road and lies between the applicant’s
property
at 13 Blinkwater Road and the majesty of an idyllic natural
bay which understandably, any property owner in the location would
wish to enjoy from his or her home.
[2]
Applicants contend that they concluded an
oral agreement with the respondent in terms of which respondent
undertook to limit the
height of the proposed development which she
had initiated to a maximum of nine meters. From available
photographs, this would
permit the applicant to have a reduced but
still significantly desirable view of the bay. It further
contends that, as part
of this agreement, they agreed to provide the
respondent with a letter of no objection in respect of a zoning
scheme departure
which, at that stage, was required by the
respondent. The construction of the proposed development has
now reached a point
where the height of nine metres may well be
exceeded shortly; hence the urgency which applicants claim in respect
of them seeking
to interdict the respondent from continuing to
construct the proposed development, pending the outcome of an action
to determine
whether on oral contract was concluded between the
parties.
[3]
The requirements which must be met by the
applicants in this case are trite: They must, at least, establish a
prima facie
,
even if open to some doubt;
(1)
a well-grounded apprehension of irreparable harm;
(2) if the interim
relief is not granted and the ultimate relief is ordered a balance of
convenience in favour of the granting of
an interim relief;
(3)
An absence of any other satisfactory remedy.
[1]
Applicant’s
prima facie right
[4]
In dealing with whether an applicant for an
interim interdict enjoys a
prima facie
right, Selikowitz J in
Spur Steak
Ranches
,
supra
at 714 E-G noted that the proper approach is to take those facts set
out by the applicant together with facts averred by the respondent
which the applicants cannot dispute and then, with regard to the
inherent probabilities, consider whether the applicant’s
should, as opposed to could on these facts, obtain final relief at
trial. The learned judge drew a further important
distinction, namely in order to establish the requirement for a
prima
facie
right, there are two stages with
which a court must engage in respect of this enquiry.
Thus, even if a
prima facie
right has been found, any doubt which a court might have regarding
the nature of this right must be subjected to a further enquiry
now a
court examines the facts averred by respondent which stand in
contradiction to the case brought by applicants, the purpose
being to
examine whether there is serious doubt thrown on the applicant’s
case. If there is a mere contradiction or
an unconvincing
explanation, applicant’s right will be protected. But, if
there is serious doubt thrown upon applicant’s
case at this
stage of the enquiry, the applicant cannot succeed. See also
Gool
v Minister of Justice and another
1955
(2) SA 682
(C) at 688 (E).
[5]
Applicant sets out its case thus:
During October 2010 the respondent approached Mr Willemse who is a
trustee of applicant,
to discuss a planning application which she was
to submit to the City of Cape Town relating to her property of 15
Blinkwater Road.
According to Mr Willemse, the planning
application involved a departure from the Cape Town Zoning Scheme and
the respondent accordingly
required a letter of no objection from the
applicants. The respondent provided Mr Willemse with a copy of
architectural plans
detailing a residential building which she
intended to constructing at 15 Blinkwater Road. The plans
revealed that
the proposed development would utilise the maximum
space permitted by the zoning scheme. It would be constructed
with the
smallest possible set back from the street boundary (4.5 m)
and would be built to the maximum possible height of ten metres, in
terms of the previous zoning scheme.
[6]
Mr Willemse avers that, if the development
would be constructed pursuant to these plans, the views from 13
Blinkwater Road would
be seriously compromised. On this
basis Mr Willemse contends that the applicants were not prepared to
provide a letter
of no objection to the respondent. He claims
that he then met the respondent at 13 Blinkwater during November
2010.
It is common cause that this meeting did not take
place in November 2010 but rather took place on 31 January 2011.
The correction made by respondent to the date of the meeting in her
opposing affidavit was accepted by applicant. According
to applicant, Mr Arthur Wyeth, a construction supervisor, attended
this meeting because it was intended that he assist in the measuring
of distances and holding of profiles in order to demonstrate
practically the impact that the proposed development would have on
the views from 13 Blinkwater Road.
[7]
A discussion took place both with regard to
the development structure and to whether the respondent was not
prepared to increase
the set back. Mr Willemse states in
his affidavit that respondent was not prepared to increase the
setback but was
prepared to restrict the height of the proposed
development to nine metres above ground level. She
considered this
as a sufficient concession to meet the objections of
applicants.
[8]
Mr Willemse then says the following:
‘
I
expressed my gratitude to the respondent for the concession that she
had made. The meeting thereafter concluded with
final
request from me that she give further thought to the other request,
for a setback, although I had no real expectation that
she would make
that further concession.
As
a consequence, the applicants, represented by me, and the respondent,
acting personally, concluded an oral agreement in terms
of which the
applicants agreed to provide a letter of no objection, and the
respondent agreed to limit the height of the proposed
development to
9 meters above ground level (“the agreement”),
alternatively, and in any event, on the basis of the
discussion set
out above, the arties tacitly agreed on the same terms.
Shortly
thereafter, wishing to preserve such concession that I had obtained
and, as stated above, having no real expectation that
the respondent
would conceded to the setback request, I hand delivered the
applicant’s letter of no objection to the respondent’s
letterbox at 29 Sedgemoor Road, Camps Bay. I verily believe
that the respondent submitted the said letter to the City.
’
[9]
To this respondent answers as follows:
She recalled that there was a meeting in January 2011. She did
not require
any departure from the City of Cape Town and did not “a
letter of no objection”. The building plans
fell squarely with the limits of her rights in terms of the relevant
zoning scheme and these plans were approved on 26 June 2012,
without
having to obtain consent from any of the neighbours.
[10]
She recounts that, at the January
2011 meeting, Mr Willemse asked that she move ‘my building
back. I said that it would
not be possible as my plot is small,
also wanted to make the most of the view’. In her
affidavit she further
denies an agreement regarding the height of the
roof. In support of this averment she referred to an
affidavit from
Mr Sean Skelton, who described himself as ‘the
architectural technologist who designed the respondent’s
house’.
Mr Skelton says that the first time that he
heard about the alleged ‘nine metre restriction’ was in
June 2014 when
Mr Willemse called him with a request that he come to
his house to examine the impact that the respondent’s roof
would have
on applicant’s house.
[11]
To the averment from applicant that he
‘hand delivered the applicant’s letter of no objection to
the respondent’s
letter box
’
respondent
answers ‘I did not need a letter from the applicants, did not
receive any such letter, I did not submit any such
letter to the
City- who did not require it.
’
[12]
Mr Irish, who appeared together with Mr
Traverso on behalf of the applicants, referred to an exchange of
affidavits which took place
on 31 January 2011 between Mr Willemse
and respondent and which, in Mr Irish’s view, was as close to a
contemporaneous document
as existed. Of relevance are the following
passages taken from this email exchange. Respondent writes to
Mr Willemse as follows:
‘
I
was truly shocked the way you spoke to me at our meeting on 31
January, 2011. You accused me of being likened to other unscrupulous
developers in the area namely “Thomas Gea”. That I had
not considered you in my planning and that we all are building
to the
maximum and that I had not shown you any of my plans for 15
Blinkwater.
To
answer you, I have only just completed them, I took them to you 4
months ago. You asked if I could come back to accommodate your
view.
I have done so and are now in line with the legal building line but
you still want me to come back.
’
[13]
To this applicant’s responds:
‘
I’m
surprised at this e-mail – I thought that we understood each
other’s’ position at the end of the meeting
and left on
an amicable note. I certainly didn’t linked you to Thomas
Geh, or “other unscrupulous developers”
(in fact, I
didn’t mention the latter) but expressed extreme disappointment
that you used the full extent of the Zoning Scheme
without any
consideration for me, as your neighbour – much as Geh tends to
do.
To
say that the plans, which you showed me late last year, have been
modified to accommodate me is disingenuous – those were
patently illegal and couldn’t have been approved by the City in
the first place. You were forced to bring the
street
façade back to the 4,5 m by law and my request to further
setback the top floor (as the only concession) has been
ignored.
Rather
than turn this into something that causes bad vibes, let me make a
suggestion: If you are prepared to accommodate me
and still
require the from façade to be kept in a vertical plane, then
it is possible to bring the whole façade back
by about 1,2 m –
1,5 m and I will pay for any extra/over costs involved in the
excavation. It will make no difference
to the basement and
ground floors (it will improve your access to the garage) and require
a small amount of re jigging to the first
floor. Then we have
achieved a win-win situation.
Insofar
as the departure is concerned, I’ll let you have the signed
form asap.’
[14]
Mr Rosenberg, who appeared on behalf of the
respondent, also relied on these emails of 31 January 2011. He
emphasised that
the respondent’s email had indicated that the
meeting was acrimonious. Given her description, it was
therefore hardly
likely that any undertakings were given by the
respondent, that is that, in so hostile a climate, the respondent
would not have
made what Mr Willemse contended to be a significant
concession regarding a height restriction. Further, had
an agreement
existed it could have been expected that there would
have been a reference to it in Mr Willemse’s email.
[15]
Mr Rosenberg also placed considerable
emphasis upon an email generated by Mr Willemse on 31 March 2014. In
this email, he seeks
to address the concerns regarding the proposed
construction. He writes: ‘when we met at my house last year
(There is no certainty
whether there was a meeting in 2013) you
assured me that the height of the building would be 9 m on the front
façade which
would be set back at a minimum of 4.5 of the
street boundary’. There is no mention in this email
of an agreement
which had been concluded in early 2011; the high
watermark of the letter is a reference to ‘an assurance’.
The same
omission of a reference to an agreement is to be found
in an email generated by Mr Willemse on 21 April 2014.
[16]
By contrast, Mr Irish referred to two
further affidavits to bolster applicant’s case. In the
first place, there was
an affidavit deposed to by Mr Wyeth, whom it
was common cause, had attended the meeting of 31 January 2011 at
which the alleged
oral agreement had been concluded. The key
paragraph Mr Wyeth’s affidavit is the following: ‘I was
present at
the meeting between Willemse and the respondent during
November 2010 (in reality January 2011) and I confirm that paragraphs
20-25
of the founding affidavit correctly record the contents of the
discussion that took place at that meeting’.
[17]
The contents of the meeting as set out by
Mr Willemse in paragraphs 20-25 of the founding affidavit contain a
clear averment that
an oral agreement had been concluded.
Furthermore, an affidavit deposed to by Mr Thomas Brummer, a town
planner, informed
the court that he was instructed by applicants to
visit the offices of the Cape Town City Council in order to inspect
the City’s
file with regard to respondent’s property and,
in particular, to ascertain whether she required a departure and had
applied
for one. He investigated this matter on 25 July 2014.
It appears that a setback departure application was submitted
by
respondent to the City on 14 December 2010. A
departure fee had been paid on 14 December 2010. At that stage
Mr
Brummer confirms that the respondent did require a departure from the
Zoning Scheme Regulations to develop her properties and
that she had
applied for one. He further informs the court that, in terms of a
further document of 28 February 2011, it was clear
‘that the
respondent decided to “design out” the element of the
building plans requiring the departure application
in her building
plans were amended so that the departure was no longer required.
’
[18]
To determine a chronology which is common
cause between the parties has proved extremely difficult. It
appears to be clear
that, as of October 2010, a discussion took place
between the parties with regard to the planning application which the
respondent
wished to submit to the City of Cape Town relating to 15
Blinkwater Road. See paragraph 7 of the founding affidavit read
together
with respondent’s email of 31 January 2011. It is
further common cause that a meeting took place 31 January 2011 to
further
discussion the matter of respondent’s development at 15
Blinkwater Road. The contents of this meeting are contested.
However, applicant’s version that, at some point, the
respondent submitted the departure application to the City must be
correct, because there is absolutely no reason to disregard the
affidavit of Mr Brummer. That of course calls seriously into doubt
the claim of respondent: ‘I did not require any departure from
the City of Cape Town and therefore did not need any letter
of
objection’. (para 21 of the answering affidavit)
[19]
It can therefore be accepted that on 14
December 2010 respondent did submit a setback departure application
in respect of her property.
It is true that at some point and
certainly as at 28 February 2011, she had changed her mind and this
change obviated the
need for such an application. Of what I
cannot be certain, on these papers, is whether when the applicant
avers that he was
required to send respondent a letter of no
objection, pursuant to the meeting of 31 January 2011, whether by
then the respondent
had changed her mind which negated the necessity
for an application and hence a letter of no objection. This factual
problem becomes
important because, if the departure application was
still alive at this point, a letter of no objection would have been
extremely
useful to the respondent. That sequence would make
sense of the line in Mr Brummer’s email of 31 January 2011:
‘insofar
as a departure is concerned I let you have the signed
form a.s.a.p.
’
[20]
As Mr Irish correctly observed, it could
not be that more than 3 years before litigation engulfed the parties,
Mr Willemse was sufficiently
astute to predict this eventuality and
had tailored an email of 31 January 2011 accordingly. I am also
not certain as to
what is meant in respondent’s email
‘you asked if I could come back to accommodate your view I have
done so and
are now in line with the legal building line but you
still want me to come back.’ This passage is
suggestive
of some form of agreement that may well have been entered
into between the parties, the subsequent acrimony notwithstanding.
[21]
Given that Mr Wyeth is also on affidavit
confirming the contents of an agreement, it appeared that, based on
the test as I have
outlined it, there are contradictions and there
are unconvincing explanations provided by the applicant. But, on the
papers read
holistically, I cannot conclude that there is a
sufficiently serious doubt about applicant’s averments that it
will not be
able to succeed if these facts are proved at trial. For
these reasons therefore, I am satisfied that the applicant has shown
a
prima facie
right necessary to justify the relief it has sought.
Balance
of convenience
[22]
The second requirement, as set out earlier,
for an interim interdict is a well-grounded apprehension of
irreparable harm if the
interim relief is not granted.
The third requisite which to a considerable extent is linked thereto
concerns the balance
of convenience in favour of the granting of
interim relief. This requires a weighing of the prejudice
which will be
suffered by the applicant if the interim interdict is
refused and the final relief is ultimately granted against the
prejudice
to the respondent, interim if relief is granted and final
relief is refused. It is this issue on which there was
significant
contestation between the parties. For this reason,
the resolution of this question, given the finding of a
prima
facie
right appears to me to be
dispositive of this application.
[23]
The founding affidavit deposed to by Mr
Willemse is somewhat skeletal in this regard. He says the
following:
‘
I
have advised that a court would have regard to the extent of the
construction when considering whether to make a demolition order.
Accordingly, should the respondent complete the proposed development
before the matter is heard, there is a possibility that the
applicants would only be awarded a damages claim.
In
light of the unique views from 13 Blinkwater, a damages claim would
be cold comfort to the applicants, quite apart from the inevitable
forensic difficulty of proving the value of the loss.
In
the premises, I submit that the applicants will not be afforded
substantial redress if the matter is heard in due course.’
[24]
By contrast, the respondent contends that
applicant will suffer little damage, in that no evidence whatsoever
was provided as to
the alleged loss of market value raised by the
applicants. Further, respondent contends that, should an
interim interdict
be granted, it would take at least 8 months
(optimistically) for the proposed action to be heard. This time
period does not
take account of any appeals subsequent thereto but
even a 8 month delay in finalising the building work would trigger
costs of
R 1.196 m together with the fact that she and her husband
could require accommodation at approximately R 25 000 per
month.
This would add an extra R 200 000 onto their
costs. They could not stay in their current accommodation
for much
longer “because it is in an advanced state of
disrepair and they need to move out shortly to start with major
renovations.”
[25]
It is settled law that a property owner
does not have a right to an existing unobstructed view from his or
her property. See
for example
Dorland
and another v Smits
2002 (5) SA 374
at
383. The sole right upon which applicant has relied for
relief depends upon an oral agreement. If there is an agreement,
as
is properly proved at trial, respondent’s construction to a
height of 10 metres would have breached a right enjoyed by
the
applicant.
[26]
In the ordinary course the applicant would
be entitled to specific performance. But, as Griesel J held in
Trustees Brian Lackey Trust v Annandale
2004 (3) SA 281
(C) at 290-291, a court in determining the nature of
the relief which would be appropriate, on the assumption that
respondent continued
her building and that applicant was successful
at trial, would be a wide and equitable discretion, based both on
considerations
of fairness and reasonableness as to whether damages
rather than an order of demolition of the structure should be
granted.
[27]
Mr Rosenberg sought to distinguish this
finding from the present dispute. He contended that the
Annandale
case did not involve specific performance in contract but rather
raised the issue of liability for encroachment in the context
of
neighbour law. In that case, the question before the
court was whether a massive encroachment, inadvertently erected
by
the plaintiff on land belonging to the defendant, ought to be
demolished. It was in the particular circumstances of this
dispute that the court held that a subsequent court would have a wide
discretion to determine the appropriate remedy.
[28]
Mr Rosenberg contended that the position is
different with regard to cases for specific performance within the
contractual sphere;
that is the discretion to withhold specific
performance is far more limited and a claim for specific performance
is obviously not
to be advanced tactically as a pretext of extracting
greater compensation.
[29]
Encroachment cases, in his view, decided in
the context of neighbour law present a set of different
considerations. Apart from this
proposition Mr Rosenberg referred to
Van der Merwe
et al
Contract General Principles
(4
th
ed) at 330 where the learned authors submit that, in general, a
contractant is entitled to an order for specific performance, unless
specific performance is impossible or if the debtor is insolvent.
A careful examination of the
dictum
of Hefer JA in
Benson v SA Mutual Life
Assurance Society
1986 (1) SA 776
(A)
at 782-783 upon which the authors rely requires a qualification of
this submission:
‘
Once
that is realised, it seems clear, both logically and as a matter of
principle, that any curtailment of the Court’s discretion
inevitably entails an erosion of the plaintiff’s right to
performance and that there can be no rule, whether it be flexible
or
inflexible, as to the way in which the discretion is to be exercised,
which does not affect the plaintiff’s right in some
way or
another. The degree to which it is affected depends, of course,
on the nature and extent of the rule; theoretically,
I suppose, there
may be a rule which regulates the exercise of the discretion without
actually curtailing it but, apart from the
rule that the discretion
is to be exercised judicially upon a consideration of all relevant
facts, it is difficult to conceive
of one. Practically speaking
it follows that, apart from the rule just referred to, no rules can
be prescribed to regulate
the exercise of the Court’s
discretion.
This
does not mean that the discretion is in all respect completely
unfettered. It remains, after all, a judicial discretion
and
from its very nature arises the requirement that it is not to be
exercised capriciously, nor upon a wrong principle (
Ex
parte
Neethling
(
supra
at
335)). It is aimed at preventing an injustice – for cases
do arise where justice demands that a plaintiff be denied
his right
to performance – and the basic principle thus is that the order
which the Court makes should not produce an unjust
result which will
be the case, eg, if, in the particular circumstances, the order will
operate unduly harshly on the defendant.
Another principle is
that the remedy of specific performance should always be granted or
withheld in accordance with legal and
public policy.
Furthermore, the Court will not decree specific performance where
performance has become impossible.
Here a distinction must be
drawn between the case where impossibility extinguishes the
obligation and the case where performance
is impossible but the
debtor is still contractually bound. It is only the latter type
of case that is relevant in the present
context, for in the former
the creditor clearly has no legal remedy at all.’
[30]
It cannot, without more, be inferred from
this
dictum
that a court will
only
refuse specific performance where performance has become impossible
or where the debtor is insolvent. It therefore
follows
that approach adopted by Griesel J in the
Annandale
case would be applicable to a case which has the nature of the
present dispute, albeit grounded in contract law, rather than
encroachment
in the context of neighbour law.
[31]
In my view therefore the approach that
should be adopted to the determination of balance of convenience can
be summarised thus:
there will inevitably be inconvenience
caused to one or other party if an order which is sought by an
applicant is either granted
or refused. The issue
effectively involves a balancing exercise, namely to what extent in
exercising its discretion,
does a court consider that the
inconvenience to the one party outweigh that caused to the other?
[32]
This decision should be based as far as
possible on principle, obviously viewed from the prism of the facts
of the dispute.
In this context Mr Irish contended that the
manner in which this court should approach this enquiry is to
commence with the assumption
that if final relief was sought at this
stage (that is the trial had taken place at this stage of the
building construction) specific
performance would have been granted.
If the house however was completed in 8 months’ time, it would
be less likely that specific
performance would be granted because of
the nature of the construction and the discretion which would be
available to a court in
such circumstances.
[33]
In my view, this is certainly a more than
plausible manner in which to evaluate the competing claims of
inconvenience. Further as
Dlodlo J said in
Camps
Bay Residents and Ratepayers Association v Augoustides
2009 (6) SA 190
(WCC) at para 20 in dealing with an application for
an interim interdict pending a review of building approvals which had
been
granted in respect of the construction:
‘
The
building work in my understanding of the papers is far from
finished. The building activities can therefore still be
stopped so as to embark on a legal process to verify the legality
thereof. In my view there is in this case more than enough
justification
that I should hold that the
applicants have made out a compelling case.’
This
emphasis on legality has a further consequence when the distinction
between an order of specific performance and the grant
of an
interdict is taken into account. Lambiris
Orders of
Specific Performance and Restitution in integrum in South African law
(1989) at 22 – 23:
‘
The
objective of an order of specific performance is the actual
performance of the terms of contractual undertakings. By
contrast, the granting of a (final) interdict has the objective of
protecting a person’s legal rights against unlawful
interference
by another. These are distinctly different
objectives. Because of this the granting of an interdict
involves different
considerations from those governing orders of
specific performance. Additionally, an order of specific
performance is available
only to enforce particular types of legal
obligation, that is, contractual obligations (whether “positive”
or “negative”)
whereas, by contrast, an interdict is
available to protect a different, and wider, range of legal rights.’
As
the consideration in this kind of application concerns the protection
of rights (albeit
prima facie
),
this observation forms a sound justification for the relief to be
granted. It is designed to ensure that the continuation
of the
building in breach of the applicant’s
prima
facie
right should stop.
[34]
In this case, on the strength of the law as
set in
Spur Steak Ranches Ltd
,
supra
at
714, I have found that the applicant has made out a case that its
prima facie
right is deserving of protection. This implies that the
continuation of building activities which are taking place,
at
present, will be in breach of, what I have described as a
prima
facie
contractual right.
[35]
For these reasons, it is therefore
appropriate that the relief sought in the notice of motion should be
granted.
[36]
The following order is made:
1. Pending the final
determination for an action for an order declaring that the
applicant’s and respondent have concluded
an oral agreement in
terms of which the respondent undertook to restrict the height of the
building presently being constructed
on Erf 2515 Camps Bay, situated
at 15 Blinkwater Road Camps Bay to 9 metres above the existing
finished ground level, the respondent
is interdicted from
constructing or continuing to construct any portions of the building
that are higher than 9 metres above the
existing finished ground
level.
2. The action shall
be instituted within 15 days from the granting of this order.
3.
Respondent is ordered to pay the costs of this application including
the costs of two counsel.
DAVIS J
CORAM:
DAVIS J
JUDGMENT
BY: DAVIS J
FOR THE
APPELLANT: ADV D IRISH SC &
ADV
N TRAVERSO
INSTRUCTED BY :
SLABBERT VENTER
YANOUTSOS
INC.
FOR
THE RESPONDENT: ADV S ROSENBERG
INSTRUCTED
BY: WV ATTORNEYS
DATE
OF HEARINGS : 08 AUGUST 2014
DATE
OF JUDGMENT: 18 AUGUST 2014
[1]
Spur
Steak Ranches Ltd v Saddles Steak Ranch
1996
(3) SA 706
(C) at 714D