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[2015] ZAWCHC 29
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Baartman v Stubbs and Others (15523/2013) [2015] ZAWCHC 29 (13 March 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No 15523/2013
DATE: 13 MARCH 2015
In the matter between:
ELIZABETH DOROTHY
BAARTMAN
...............................................................................
Applicant
And
SARAH JANE
STUBBS
..............................................................................................
First
Respondent
GREGORY WALTER MONCRIEFF
LARGIER
.................................................
Second
Respondent
THE REGISTRAR OF
DEEDS
.................................................................................
Third
Respondent
JACQUELI WYLANDA
RUBENSTEIN
...............................................................
Fourth
Respondent
Court: RILEY AJ
Heard: 2 December 2014
Delivered:13 March 2015
JUDGMENT
DELIVERED ON 13 MARCH 2015
RILEY AJ:
1. The applicant, who is the registered
owner of Erf 985, Hout Bay, commonly known as 1… U….
Street, S…. E…...
H….. B.., held by her in terms
of title deed T60854/2011 and which was registered on 1 November
2011, has applied to this
court for an order: -
‘(a) Declaring that the title
deed condition E, contained in the title deed (T111355/2004), of the
property (Erf 983, Hout
Bay) registered in the name of the first and
second respondents namely that “(no) structure whatsoever nor
tree shall be
erected or planted on the property which would obstruct
or partially obstruct the sea views from the existing structure on
Erf
985 Hout Bay” also applies to the wild olive tree which had
already been planted at the time of the imposition of the condition.
(b) Ordering the first and second
respondent to trim the wild olive tree (or any other vegetation) on
their property, Erf 983, Hout
Bay, so as not to obstruct or partially
obstruct the sea views from the existing structure.
(c) Ordering the first and second
respondents to pay the costs.
(d) Granting the applicant such further
and/or alternative relief as this Honourable Court may deem fit.’
[2] The third respondent was served
with the application as an interested party, but no relief is sought
against third respondent.
The background and facts
[3] Before dealing with the background
and facts underpinning this application I wish to express my regret
that the parties did
not see it fit to resolve this matter in a
manner other than by way of litigation. In my view this is indeed a
matter which was
eminently suited to be resolved by way of mediation
or another mechanism other than litigation.
[4] At the time that the application
was brought the first and second respondents were the registered
owners of Erf 983 Hout Bay,
also known as 8 Union Street, Scott
Estate, Hout Bay (‘the property’), held by them in terms
of registered title deed
T111355/2004 registered on 11 November 2004.
Union Street runs in an east to west direction and the property,
abuts the applicant’s
property i.e Erf 985 Hout Bay, on its
western border.
[5] The following condition is
registered against the title deed of Erf 983 in favour of the
applicant’s property:
‘E. Subject further to the
following conditions imposed by the Transferor in favour of Erf 985
Hout Bay held by Deed of
Transfer No T60854/2011.
No structure whatsoever nor tree shall
be erected or planted on the property which would obstruct or
partially obstruct the sea
views from the existing structure on Erf
985 Hout Bay.’
[6] It is common cause that the
‘transferor’ referred to in clause E above is Diann
Soutter (‘Soutter’),
who held the property in terms of
title deed T111356/2011 and who was also previously the registered
owner of Erf 985 as well as
Erf 986 (also known as 12 Union Street).
[7] It is further common cause that
Soutter sold both Erven 985 and 983 on 15 April 2004 as follows:
(1) Erf 985 was sold to Stephen and Sue
Forster (‘the Forsters’), applicant’s predecessors
in title.
(2) Erf 983 was sold to the first and
second respondents.
(3) The Forsters would also have
purchased Erf 983, had the sale to first and second respondents
fallen through.
[8] It is not disputed that the
Forsters found that one of the main attractions to 10 Union Street
was the fact that it had a ‘pretty’
sea view from the
upstairs part of the original house. It appears that they knew that
Erf 983 was undeveloped and bearing in mind
that this property would
be developed in the near future, they ensured that it be made a
condition of the sale of Erf 983 that
the existing sea view from the
upstairs part of the original building be protected from obstruction
by any development of the property
in front. A stipulation to this
effect was duly incorporated in clause 2 of the addendum to the deed
of sale entered into between
Diann Soutter and the first and second
respondents and registered against the title deeds of Erven 983 and
985.
[9] Clause 2 of the addendum to the
deed of sale reads as follows:
‘ 2. No structure whatever and or
tree shall be erected or planted on the property which would obstruct
or partially obstruct
the sea views of the existing structure on Erf
985. These conditions will be registered in the Title Deed and, will
be in favour
of Erf 985 Hout Bay’.
[10] Photographic evidence dating back
to May 2005 of photographs commissioned by the Forsters, clearly show
a nascent wild olive
tree which does not obstruct the sea views at
all.
[11] At the time that the first and
second respondents concluded the agreement of sale with the Soutters,
in terms of which they
purchased from the latter Erf 983, it must
have been clear to the first and second respondents that it was the
intention of the
Forsters to have a clear and unobstructed sea view
from their property. This is evidenced by the registration of the
condition
against the title deed hereinbefore referred to.
[12] It is further clear that at
the time of purchasing Erf 985 from the Forsters on 25 July 2011 and
concluding the sale, the
applicant’s chief concern was the view
that she would have from her property, of the sea, the beach and
across the bay of
the village in Hout Bay where she grew up.
Accordingly it was an express condition of the sale of Erf 985 in
terms of clause 19.1.iii
that:
‘…the seller will
provide the purchaser with proof that property in front (known as
8 Union) has a title deed
restriction which would prevent them from
erecting any building that would in any manner obscure or take away
the current sea view
of 10 Union as shown in annexure D attached
hereto. The seller agrees to provide the purchaser with a copy of the
title deeds,
photographs of sea view and plans of 10 Union’s
original house.’
[13] It is common cause that the
applicant and the Forsters thereafter concluded an addendum to the
deed of sale on 11 August
2011 and that the addendum recorded the
views at that time and that attached to the addendum are two
photographs depicting the
view as it then was in August 2011.
[14] The addendum to the deed of sale
reads as follows ‘This serves to confirm that the current view
enjoyed from 10 Union
Street, as per attached pictures from the
property is the view referred to in the servitude registered in
favour of 10 Union Street
and is registered over 8 Union Street’.
[15] In terms of clause D of the
title deed held by the Forsters, Erf 985 had a title deed condition
registered as follows:
‘By virtue of the deed of
transfer No T111356/2004, the within property is entitled to the
following condition: No structure
whatsoever nor tree shall be
erected on (sic) planted on Erf 983 Hout Bay held by Deed of Transfer
No T111356/2004, which could
obstruct or partially obstruct the sea
views from the existing structure on the within property.’
[16] This condition is also contained
in applicant’s title deed as clause D and provides that:
‘No structure whatsoever nor tree
shall be erected or planted on Erf 983 Hout Bay, held by Deed of
Transfer No T111356/2004,
which could obstruct or partially obstruct
the sea views from the existing structure on the within property.’
[17] It is further common cause and
not in dispute that there are also conditions registered in favour of
Erf 986 Hout Bay, which
are to the effect that ‘no trees may’
be planted on the servient tenement (i.e Erf 983, Hout Bay) which
will have the
effect of obstructing partially or otherwise the sea
view from the dominant tenement.
[18] On 11 November 2004 the first
and second respondents, as the owners of Erf 983, Hout Bay registered
a notarial deed of servitude
in favour of Erf 986 in terms whereof
‘no trees may be planted on the servient tenement which will
have the effect of obstructing
partially or otherwise the sea view
from the dominant tenement.’
[19] On the evidence I am satisfied
that, just like the Forsters, the applicant as well as the the owner
of Erf 986, one David
Mohr, wanted to entrench the right not to have
their sea view obstructed, partially or otherwise, i.e. by
construction, building
and/or the planting of trees on the servient
tenement.
[20] It is not in dispute that by
the time that the applicant launched this application in this court,
the olive tree depicted
in the photos taken in May 2005 and in the
annexure to the addendum of the sale agreement applicant had entered
into, had grown
substantially, had increased in size and indeed
obstructed the applicant’s view of the sea, the beach and the
village across
the bay.
[21] Around 19 February 2013 the
applicant, the first and second respondents, together with a certain
Kurt (first and second respondents’
tree expert), met to
discuss the wild olive tree and the two trees that the first and
second respondents had planted on their property.
Applicant offered
to trim the top of the tree but first and second respondents rejected
this offer. The first and second respondents
agreed that the two
trees planted by them, would eventually obscure the view from
applicant’s house. First and second respondents
shortly
thereafter, on their own accord, removed the two trees they had
planted. Shortly after this meeting, first and second
respondents
presented applicant with a quote for trimming the whole tree. The
first and second respondents were effectively not
prepared to allow
that only the top of the tree be trimmed or to accept any
responsibility for maintaining the wild olive tree.
After the
discussions about how to deal with the offending olive tree, the
applicant’s attorneys addressed a letter to the
first and
second respondents demanding that they comply with the obligation
imposed upon them in terms of condition E to their
title deed.
[22] The relevant parts of the
letter, which is dated 16 April 2013, read as follows:
‘… As you are aware there
is a title deed condition registered against the title deed of Erf
983 in favour of Erf 985
in terms whereof “no structure
whatsoever nor tree shall be erected or planted on the property which
would obstruct or partially
obstruct the sea views from the existing
structure on Erf 985 Hout Bay.” (Condition E as contained in
the title deed).
As you are aware the wild olive tree on
Erf 983 is obstructing the sea views from the first floor balcony on
Erf 985.
This obstruction of our client’s
view is in contravention of the title deed condition. We hereby
demand that you comply with
the obligations imposed on you in terms
of condition E and that you restore to our client her sea view within
a period of thirty
(30) days.
Kindly note that should you fail and/or
neglect to comply with your obligations as set out hereinabove, our
instructions are to
take the necessary steps to protect our clients’
interests …’
[23] The first and second respondents
responded to this letter and confirmed that they were aware of the
conditions registered
against Erf 983, but contended then, as was
also contended on their behalf in this court, that as the wild olive
tree was already
an established tree at the time the conditions were
registered, there was no contravention of the title deed condition.
The first
and second respondents offered to have the tree trimmed at
the applicant’s costs but with their choice of tree specialist.
The applicant did not accept this proposal.
The locus standi of the first and
second respondents and the joinder of the fourth respondent:
[24] The locus standi of the first
and second respondents to oppose the relief sought in this
application, in particular after
they had sold the property to the
fourth respondent, has been challenged by the applicant.
[25] In the aforegoing paragraphs I
have set out briefly how and under what circumstances the first and
second respondents became
party to the application. It is necessary
to further set out the chronology of the relevant events as they
unfolded so that the
matter can be viewed in its proper perspective.
[26] The following facts appear to be
common cause:
1.When this application was launched on
19 September 2013 the first and second respondents were the
registered owners of Erf 983,
Hout Bay.
2. On 10 October 2013 the first and
second respondents gave notice of their intention to oppose the
relief sought by the
applicant.
3.On 19 December 2013 the applicant’s
attorney of record wrote to the first and second respondents’
attorney of record
and advised inter alia:
‘…Finally, we are also
advised that your clients placed their property in the market. Kindly
confirm that your clients
will inform any prospective purchaser of
the pending litigation.’
4. On 2 March 2014 first and second
respondents sold Erf 983 Hout Bay to the fourth respondent.
5. On 10 March 2014 the first and
second respondents, after having sold their property, deposed to
their answering affidavits.
6. Transfer and registration of the
property into the fourth respondent’s name took place on 23
June 2014.
[27] The applicant in due course
filed replying affidavits and on the 19th August 2014 the matter was
by agreement between the
parties allocated by the Judge President for
hearing on 16 September 2014.
[28] On 26 August 2014, the
applicant’s attorney of record addressed a further letter to
the first and second respondents’
attorney of record which
stated inter alia that:
‘… consequent to the
meeting between our respective clients counsel and the Judge
President on 19 August 2014 your
clients’ counsel informed us
that the property known as Erf 983, Hout Bay (‘the property’)
has been sold by your
clients.
3. After conducting a deeds office
search on the property we established that the property has been sold
to one Jacqueli Wylanda
Rubenstein (‘Ms Rubenstein’) on 2
March 2014.
4. In view of the aforesaid, we are
constrained to record that:
4.1 Your clients deposed to their
answering affidavits on 10 March 2014;
4.2 Notwithstanding the fact that the
property was sold before your clients deposed to their affidavits
they failed to mention
the sale of the property;
4.3 At the meeting with the Judge
President your counsel failed to inform the Judge President that the
property that forms the
subject matter of the litigation, was sold
and transferred;
4.4 As the sale of the property
obviously has a bearing on the future conduct of this matter, and in
any event, will necessitate
a joinder application, in our view this
had to be disclosed to the Judge President.
4.5 Due to your clients failure to
inform our client of the sale of the property, our client can only
now proceed with a joinder
application which may have an impact on
the hearing date of the matter;
As you are also aware we requested in
our e-mail of 19 December 2013 that you confirm that you will inform
any prospective purchasers
of the pending litigation.
Kindly thereafter furnish us, as a
matter of urgency, with a copy of the deed of sale entered into
between your clients and Ms Rubenstein
…’
[29] In a letter dated 27 August
2014, first and second respondents’ attorney undertook to
‘revert in respect of the
issues raised …’ to the
letter dated 26 August 2014 and reserved the first and second
respondents’ rights.
[30] The fact of the matter is that
first and second respondents’ attorney did not ‘revert’
in respect of
the issues raised (as they undertook to do), nor did
they provide applicant or her attorney with a copy of the deed of
sale.
[31] From the aforegoing it is
clear that the allocation of the trial date took place during a
meeting with the Judge President
on Tuesday, 19 August 2014.
Immediately after this meeting, applicant’s legal
representatives were advised by counsel representing
the first and
second respondents that they had sold the property. In my view it is
reasonable to find that this was the first
formal notification by
the first and second respondents to the applicant of the sale of the
property. Upon receiving this information
applicant’s attorneys
conducted a search at the deeds office on 21 August 2014 and
established from the records that the
first and second respondent had
indeed sold their property to the fourth respondent on 2 March 2014
and that registration and transfer
had taken place on 23 June 2014.
[32] It is clear from the letter
dated 19 December 2013 addressed to respondents’ attorney that
applicants attorney had
specifically requested of first and second
respondents to advise any prospective purchaser of the pending
application in this court.
[33] It is necessary to point out at
this stage that despite the fact that first and second respondents
had sold their property
to the fourth respondent, no mention
whatsoever is made of this ‘very crucial fact’ in the
answering affidavit(s) of
the first and second respondents, which was
deposed to on 10 March 2014, i.e. eight days after the date given by
the third respondent
as the date of sale.
[34] The applicant thereafter
contacted the fourth respondent, in an ‘endeavour to engage her
in a meaningful resolution
of the application’. Fourth
respondent’s response was that the dispute had nothing to do
with her and that she had
her financial obligation to attend to and
undertook to discuss the matter with first and second respondents. It
is not in dispute
that nothing further came of this interaction
between the fourth respondent and applicant.
[35] Due to the fact that the fourth
respondent now had a direct and substantial interest in the subject
matter of the application,
an application to join her was launched on
2 September 2014. In her affidavit in support of the joinder
application, the applicant
clearly states that the presence of the
first and second respondents in the main application other than in
respect of costs, falls
away. (My emphasis). In my view this was the
clearest indication to the first and second respondents that
applicant no longer had
the intention of seeking the relief
originally sought from them in the notice of motion.
[36] The application to join the
fourth respondent was not opposed and an order was granted to join
the fourth respondent on
23 October 2014.
[37] On 12 November 2014 the
applicant’s heads of argument were filed. Paragraph 17 thereof
is to the effect that, given
the fact of the sale and transfer of Erf
983 to the fourth respondent, who had stated her intention to abide
the decision of this
court, it was not clear on what basis the first
and second respondents initially opposed the application and
continued to do so.
(my emphasis)
[38] On 20 November 2014 the
fourth respondent served a notice to abide which is to the effect
that she ‘undertakes to
abide the decision of the above
Honourable Court in the above matter and notes that such application
is opposed by the first and
second respondents’.
[39] On the same day the first and
second respondents filed their heads of argument. Nowhere in their
heads of argument is
there any response to paragraph 17 of the
applicant’s heads of argument.
[40] Considering the developments in
the matter (i.e. the sale of the property to the fourth respondent
and fourth respondent’s
intention to abide the decision of the
court), at the conclusion of argument by counsel for both parties, I
invited counsel to
provide me with additional submissions on the
locus standi of the first and second respondents to oppose the relief
sought by the
applicant.
[41] During argument Mr Olivier, on
behalf of the applicant, contended that after concluding the sale
agreement with the fourth
respondent, the first and second
respondents no longer had a legal interest in the subject matter of
the litigation which may be
prejudicially affected by a judgment. He
contended further that since it was clear that the fourth respondent
had decided to abide
the decision of this court, neither first nor
second respondent or anyone else is permitted to oppose the relief
sought. In short
he submitted that the first and second respondents
had no locus standi to oppose the relief sought.
[42] Mr Bruce-Brand, for the first
and second respondents, on the other hand contended that once the
applicant had become aware
of the change in ownership of Erf 983,
applicant had the ideal opportunity to release the first and second
respondents from the
matter by substituting fourth respondent in
their place. He submitted that the applicant in instituting the
proceedings against
them had bound them to the matter until the
proceedings are withdrawn or there is judgment. He was adamant that
applicant ought
to have withdrawn the proceedings against first and
second respondents and that the only issue left should have been
argument about
costs.
[43] In his supplementary heads of
argument Mr Bruce-Brand submitted that once litigation has been
commenced there is a lis before
the court on the merits and costs,
and that even if the subject matter of the lis is ended, whether by
withdrawal of the legal
proceedings or otherwise, the first and
second respondents are entitled to a judgment in their favour and at
the least for the
costs of the application.
[44] With reference to the fourth
respondent’s notice to abide he submitted that the fourth
respondent had made it clear
that she knew the first and second
respondents were opposing the application and that implicit from this
is the following:
1. She approved the continuation of
their opposition to the application; and
2. Her undertaking was to abide
whatever decision the court makes when considering the opposed
application.
[45] Rule 41 of the Uniform Rules of
Court provides that a party wishing to withdraw against another party
against whom an application
has been instituted, must deliver a
notice of withdrawal to this effect. See Herbstein & Van Winsen
The Civil Practice of the
High Courts and the Supreme Court of Appeal
of South Africa 5th Edition ch 30 at p749.
[46] It was contended on behalf of
the first and second respondents that the applicant could have and
should have withdrawn the
application against them when applicant
became aware of the fact that they had in fact sold the property or
at the latest when
applicant joined the fourth respondent to the
matter. It is correct that the applicant did not formally withdraw
the application
against the first and second respondents. It is
further correct that the applicant did not formally apply for an
amendment to the
prayers in the notice of motion.
[47] In her affidavit to the joinder
application, applicant makes it abundantly clear that the presence of
the first and second
respondents falls away and that no substantive
relief was being sought against them, aside from costs. I am
satisfied that even
though the applicant did not formally apply for
an amendment to the prayers in the notice of motion and even though
she did not
formally withdraw the application against the first and
second respondents, applicant had effectively formally notified the
first
and second respondents that she was no longer proceeding
against them as far as the substantive relief was concerned. I find
support
for my finding in the approach adopted by Meer J in Bonne
Veleur CC v Wood 2007 JDR 0336 (C) where she held that the applicant
had effectively withdrawn his main application, despite not having
entered a notice of withdrawal, by the amendment of the applicant’s
claim, wherein the applicant abandoned the substantial relief sought
against the respondent, leaving only the question of costs
for
decision. The facts in that matter are analogous to the facts in the
present matter and similarly dealt with a situation where
the
respondent sold the property which was the subject matter of the
dispute consequent to the institution of the application,
thus
rendering the relief specifically sought against the respondent
effectively academic. Even though in that matter there was
an
amendment of the applicant’s claim, I am of the view that the
approach adopted by Meer J is sound and correct and such
approach is
equally applicable in the present matter. In my view it was
accordingly not necessary for applicant to formally withdraw
the
application against the first and second respondents.
[48] I turn now to deal with the
general principles regarding locus standi which are well established.
[49] In Dalrymple and others v
Colonial Treasurer
1910 TS 372
at 390, the court held that:
‘The person who sues must have an
interest in the subject matter of the suit, and that interest must be
a direct interest
… Courts of law … are not
constituted for the discussion of academic questions, and they
require the litigant to
have not only an interest, but also an
interest, that is not too remote.’
And further at 390:
‘Whether the interest is remote
or not depends upon the circumstances of the case, and no definite
rule can be laid down.’
[50] In Cabinet of the Transitional
Government for the Territory of South West Africa v Eins
1988 (3) SA
369
(A) at 388B Rabie ACJ expressed the general principle of our law
as follows:
‘A person who claims relief from
a court in respect of any matter must, as a general rule, establish
that he has a direct
interest in that matter in order to acquire the
necessary locus standi to seek relief.’
[51] In dealing with the concept
of locus standi the following was said in Jacobs en ’n ander v
Waks en andere 1992(1)
SA 521 (A) at 533J -534E:
‘In die algemeen beteken die
vereiste van locus standi dat iemand wat aanspraak maak op regshulp
'n voldoende belang moet
hê by die onderwerp van die geding om
die hof te laat oordeel dat sy eis in behandeling geneem behoort te
word. Dit is nie
'n tegniese begrip met vas omlynde grense nie. Die
gebruiklikste manier waarop die vereiste beskryf word, is om te sê
dat
'n eiser of applikant 'n direkte belang by die aangevraagde
regshulp moet hê (dit moet nie te ver verwyderd wees nie);
andersins
word daar ook gesê, na gelang van die samehang van
die feite, dat daar 'n werklike belang moet wees (nie abstrak of
akademies
nie), of dat dit 'n teenswoordige belang moet wees (nie
hipoteties nie) - … .’ In die omstandighede van die
huidige
saak is dit veral die vereiste van 'n direkte belang wat op
die voorgrond staan. Wat dit betref, is die beoordeling van die vraag
of 'n litigant se belang by die geding kwalifiseer as 'n direkte
belang, dan wel of dit te ver verwyderd is, altyd afhanklik van
die
besondere feite van elke afsonderlike geval, en geen vaste of
algemeen geldende reëls kan neergelê word vir die
beantwoording van die vraag nie (sien bv Dalrymple and Others v
Colonial Treasurer
1910 TS 372
per Wessels R op 390 in fine, en vgl
Director of Education, Transvaal v McCagie and Others
1918 AD 616
per
Juta Wn AR op 627). Vorige beslissings kan behulpsame algemene
riglyne vir bepaalde soort gevalle aandui, maar meestal het
dit
weinig nut om die besondere feite van een geval te vergelyk met dié
van 'n ander.’
[52] In Vandenhende v Minister of
Agriculture, Planning and Tourism, Western Cape, and others
2000 (4)
SA 681
(C) at 686 J – 687 A Thring J was of the view that the
most useful source of guidance as to the approach which should be
adopted in matters of this nature is to be found in the decisions of
our courts which over the years have dealt with the intervention
and
joinder of parties.
[53] In that matter, the applicant,
who was the prospective purchaser of the property that formed the
subject matter of the
claim, sought an order for review and setting
aside of the decision of the first respondent to dismiss an appeal
against him against
the decision of the local authority (the third
respondent) refusing a rezoning application in respect of certain
property owned
by the sixth and seventh respondents (the sellers) in
the matter. In coming to the conclusion that the applicant was not
entitled
to join or intervene as a co-applicant in the initial
application to the local authority for the rezoning of a property (in
terms
of section 17(1) of the relevant Ordinance) as he was not and
had never been the owner of the property, Thring J placed reliance
on
what was stated by Corbett J (as he then was), when he held in United
Watch & Diamond Co (Pty) Ltd and others v Disa Hotels
Ltd and
another 1972 (4) 409 (C) at 415A-B that:
‘In my opinion, an applicant for
an order setting aside or varying a judgment or order of Court must
show, in order to establish
locus standi, that he has an interest in
the subject-matter of the judgment or order sufficiently direct and
substantial to have
entitled him to intervene in the original
application upon which the judgment was given or order granted.’
[54] It is clear from the authorities
that it is not every interest in a dispute which will entitle a
person to join or be joined
in legal proceedings. This principle is
clearly illustrated in Sheshe v Vereeniging Municipality 1951(3) SA
661 (A) where at 667
A the proposition was rejected that:
‘a plaintiff who brings an action
for the ejectment of his tenant must necessarily join as defendants
his tenant's milkman,
vintner or charwoman. We have had numbers of
actions for ejectment against the lessees of hotels and blocks of
offices. In no case
that I can recall to mind was it even suggested
that the plaintiff was bound to join the lodgers, boarders or
sub-lessees of offices.’
[55] Having regard to the authorities
hereinbefore referred to and applying them to the present matter, I
am satisfied that first
and second respondent are required to show
that they had or continued to have ‘a direct and substantial
interest’,
‘’n direkte en wesenlike belang …
by die uitslag van die geding’. See Kock & Schmidt v Alma
Modehuis
(Edms) Bpk
1959 (3) SA 308
(A) at 318 E-H. It is further
clear that that interest must be ‘a legal interest in the
subject matter of the action which
could be prejudicially affected by
the judgment of the court deciding the dispute. ‘See Henri
Viljoen (Pty) Ltd v Awerbuch
Brothers
1953 (2) SA 151
(O) at 167E –
170H. The court held further that it is not sufficient for the
interest concerned to be a merely financial
or commercial one.
[56] Applying the aforesaid legal
principles to the facts of this matter it is clear that first and
second respondents persisted
in their opposition to the relief sought
by the applicant notwithstanding the fact that by the time that they
sold the property,
or at the least by 23 June 2014, i.e. when
transfer and registration of the property was effected in the name of
the fourth respondent,
they had no interest, both legally and/or
financially, in the property. The decision by the first and second
respondents to persist
in their opposition of the relief sought
stands in stark contrast to the approach adopted by of the fourth
respondent. The fourth
respondent is the current legal owner of the
property which is the subject matter of the litigation, she has the
real interest,
and is ultimately the affected party in this matter,
yet she gave notice to abide the decision of this court.
[57] It is necessary to emphasize
that apart from abiding the decision of this court and noting that
the application is opposed
by the first and second respondents, no
evidence has been placed before this court that the first and second
respondents are authorised
in law by the fourth respondent to oppose
the relief sought by the applicant. Her decision to abide the
decision of this court
and the basis upon which it is done is clear
and unambiguous.
[58] Accordingly there is no
foundation in fact or law for the contention that it was implicit in
the fourth respondent’s
conduct in abiding the decision of
this court, that she approved the continuation of the first and
second respondent’s
opposition to the application. The fact
that the fourth respondent ‘notes’ that the application
is opposed by the first
and second respondent can never on a plain
meaning of the words be understood to mean that she agreed to abide
the decision of
the court, on the basis that she agreed with the
first and second respondents’ opposition of the relief sought
by the applicant.
This argument must accordingly be dismissed.
[59] It must further be pointed out
that at a very early stage, when it came to her attention that the
first and second respondents
were selling the property, the applicant
made it clear that she could not understand why the first and second
respondents were
still opposing the relief sought. When she deposed
to her affidavit in the joinder application in respect of the fourth
respondent
she states clearly that ‘the presence of the first
and second respondents to the main application, other than in respect
of costs, falls away’. What is disconcerting is the fact that
neither Mr Bruce-Brand nor the first and second respondents’
attorneys of record informed the Judge President of this Honourable
Court that the first and second respondents had sold the property
at
the time when the parties were discussing the allocation of a trial
date. Of further concern to me is the reluctance on the
part of the
first and second respondents to provide the applicant’s
attorneys of record with a copy of the deed of sale when
requested to
do so. I will deal further with the approach adopted by first and
second respondents to this matter at a later stage.
[60] On the evidence it is clear
that even though the first and second respondents acquiesed to the
joinder application they
continued opposing the relief sought, when
it must have been clear to any reasonable person that the relief was
only being sought
against the fourth respondent.
[61] I am on the whole satisfied
that when the first and second respondents sold the property
concerned to the fourth respondent,
or, at the least when
registration and transfer took place in the name of the fourth
respondent, the subject matter of the dispute
between them and the
applicant was essentially moot and no longer justiciable between
them.
[62] In light of the above and in
the absence of any opposition by the fourth respondent to the relief
sought by the applicant,
it follows that whatever order I make herein
can therefore only operate as and against the fourth respondent.
The approach followed in the
interpretation of servitudes:
[63] Notwithstanding what I have
found hereinbefore, it is necessary to consider the law relating to
the interpretation of servitudes
as it is the interpretation of this
servitude which lies at the heart of the dispute between the parties.
[64] In Royal Hotel Riversdale
(Pty) Ltd v Simon NO and Another (713/11) [2012] ZASCA (18 September
2012), dealing with the
interpretation of a servitude, the court held
(at paragraph [12] – [14]) that:
“[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.
[13] What principles must one apply in
interpreting the servitude, recognising that it is, in essence, only
a contract to achieve
a particular end? It is unnecessary to rehash
all the conflicting approaches. They are adequately debated by my
colleague Wallis
JA in his article, What’s in a word?
Interpretation through the eyes of ordinary readers 127 SALJ (2010)
673, and do not
give rise to controversy in this appeal.
[14] It is sufficient for present
purposes to examine the combined effect of the relevant facts present
to the minds of the parties
at the time of contracting, and the
language adopted by them in the context of their contract as a whole.
These are the signposts
to their common intention and, as will become
apparent, they point to a single destination.”
[65] In Kruger v Joles Eiendomme
(Pty) Ltd and Another
2009 (3) SA 5
(SCA), the court held at para [4]
that the approach to the interpretation of a servitude is as follows:
“Where a servitude has been
granted by agreement, and where the agreement is ambiguous and
evidence as to surrounding circumstances
which obtained at the date
the contract was concluded does not resolve the ambiguity, evidence
as to the interpretation the parties
had by their conduct put upon
the grant will be admissible as an indication of their common
understanding of its meaning.”
[66] In Johl and Another v Nobre and
Others (23841/2010)
[2012] ZAWCHC 20
(20 March 2012) the court
adopted the approach that:
“[16] In interpreting the
servitude agreement the Court seeks the intention of the parties from
the terms of the agreement
itself. The words in the agreement must be
read in context and in the light of the surrounding circumstances
prevailing at the
time of the creation of the servitude. See De Witt
v Knierim
1991 (2) SA 371
AT 385 C-E. . . . 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. See De Kock v Hanel
1999 (1) SA 994
(C) at
997 E - 998 B.”
[67] In Berdur Properties (Pty) Ltd
v 76 Commercial Road (Pty) Ltd
1998 (4) SA 62
(D), the court held (at
page 68G-J) that:
“The applicant submits that it is
relevant to have regard to the presumed intention of the parties when
creating the servitude.
Compare Nach Investments (Pty) Ltd v Yaldai
Investments (Pty) Ltd and Another1987 (2) SA 820 (A). There are,
however, limitations
to such an approach. Where the parties have been
precise in determining the scope and nature of their agreement the
Court is bound
to accept the consequence of their language - compare,
generally, Van Rensburg en Andere v Taute en Andere1975 (1) SA 279
(A) at
302G--H; and, with particular reference to servitudes, Kruger
v Downer
1976 (3) SA 172
(W) at 178H.”
[68] When considering the
interpretation of servitudes, it is however clear that there are
other considerations that have to
be taken into account when
ascribing meaning to a particular condition.
[69] In Schwedhelm v Hauman
1947 (1)
SA 127
(E) the court applied the rule of the Roman law that, with the
exception of the servitudes oneris ferendi and altius tollendi, a
servitude cannot cast upon the owner of the servient tenement an
obligation actively to do something.
[70] In Van der Merwe v Wiese
1948
(4) SA 8
(C) this court came to a different conclusion and found that
an agreement could not be deemed invalid merely on the ground that
it
imposed a positive duty.
[71] In Cape Explosives Works Ltd and
Others v Denel (Pty) Ltd and Another
2001 (3) SA 569
(SCA) at par
[14] Streicher JA did not consider it necessary to deal with the
question as to whether or not the rule relied upon
in Schwedhelm is
absolute.
[72] The traditional view seems to
be that one of the prerequisites for the validity of a praedial
servitude is that a positive
duty may not be imposed upon the
servient tenement. See detailed discussion in Silberberg and
Schoeman’s The Law of Property
(Lexis Nexis Electronic edition
at 324) LAWSA Volume 24 – Servitudes at para 550 and also
Wille’s Principles of South
African Law at 596 footnote 45.
[73] It appears that our courts have
interpreted servitudes narrowly or restrictively, due to limitations
placed on ownership
by the servitude. This approach finds expression
in Kruger v Joles Eiendomme (Pty) Ltd and Another supra at paragraphs
[8] –
[9] where the SCA held that:
“[8] In the circumstances I
believe that such ambiguity as there is should be resolved by
applying the well-established rule
of construction that because a
servitude is a limitation on ownership, it must be accorded an
interpretation which least encumbers
the servient tenement. Voet, in
discussing the urban servitude of tigni immittendi (ie the right to
let a H beam into a neighbour's
party wall), contrasts the position
under a limited agreement as opposed to a general agreement and says
that where the number
of beams and mode of letting-in has been
defined, the owner of the dominant tenement is not allowed either to
let in more or to
alter the shape of the letting-in. The reason he
gives is:
I That is especially so because the
granting of a servitude receives a strict interpretation as being an
odious thing (because
it is opposed to natural freedom); and in case
of doubt there must be a declaration in favour of freedom.
As authority for this proposition Voet
refers to, among others, Carpzovius, and the author of the opinion in
the Hollandsche Consultatien
where the passage from Carpzovius which
follows is quoted:
(S)ervitus ceu res odiosa restringi,
ac in dubio pro libertate pronunciari debet. Et semper servitus
indefinita ita est interpretanda,
quo fundus serviens minori
afficiatur detrimento.
The passage may be translated as
follows:
“(A) servitude being something
odious should be interpreted restrictively and so, in case of doubt,
should be declared free
of restraint. And an imprecise servitude must
always be interpreted so that the servient tenement is the less
adversely burdened.
[9] The restrictive approach to
interpreting servitudes has been endorsed by this court in Pieterse v
Du Plessis although in Van
Rensburg en Andere v Taute en Andere the
caveat was added that:
“By die toepassing van hierdie
beginsel moet egter steeds in gedagte gehou word dat die aard en
omvang van die beswaring bepaal
word na aanleiding van die betekenis
wat gegee moet word aan die ooreenkoms wat die serwituut daarstel.
Indien die betekenis daarvan
ondubbelsinnig blyk te wees, is 'n hof
nie geregtig om daarvan af te wyk ten einde 'n mindere beswaring te
bewerkstellig nie.”
[74] See also Roeloffze NO and
Another v Bothma NO and Others
2007 (2) SA 257
(C) at paragraph [33]
with regard to the restrictive interpretation of a servitude.
[75] The servitude imposed by the
clause in the present matter is a servitude of view (prospectus) in
terms of which the owner
of the dominant tenement has the right to an
open view which restricts the rights of the owner of the servient
tenement to impede
the view in the form of both buildings and trees.
[76] In Kruger v Downer supra at 178 B
– C after having, discussed the servitude prohibiting a
neighbour from building higher,
and the servitude prohibiting the
darkening or obstruction of light by any building, the court goes on
to say the following, quoting
the translated “Roman-Dutch Law”,
2.20.14 of Van Leeuven:
‘But the right to free prospect
is more extensive, for it not only includes the light from the
heavens above, but also a free
and unobstructed view along the earth
in a straight line, whereby the prospect must be left in the same
condition it was in at
the time of creating the servitude’.
[77] In the present matter the right
which arises from the servitude agreement is precisely this right to
free prospect. Mr Oliver
contended that the right is one whereby the
prospect must be left in the same condition it was in at time of the
creation of the
servitude.
[78] In Myburgh v Jamison
(1861) 4
Searle 8
the question arose as to the interpretation of a condition
contained in the deed of transfer of certain property which
prohibited
the erection of buildings which obstructed the view from a
specific adjacent property. The defendant planted trees which
ultimately
obstructed the view from the plaintiff’s property.
He claimed a contravention of the condition. The plaintiff requested
the court to give effect to the purpose of the condition, namely, the
protection of the view from the plaintiff’s property,
despite
reference in the condition to the erection of buildings, and not
trees. On the other hand, the defendant contended that
the court
should apply a strict interpretation to the wording of the condition,
arguing that a servitude of prospect was odious
as it hindered
development and thus contravened public policy. The court ultimately
adopted a narrow interpretation and held that
the trees did not
obstruct the plaintiff’s view in a manner disallowed by the
condition.
[79] In Lewkowitz v Billingham and
Co
(1895) 2 Off Rep 36
the court adopted a different approach. In
this matter the respondent leased an advertising wall from the
appellant, subject to
the condition that either party could cancel
the contract if a building that would obstruct the view to the wall
was constructed
during the lease period. The court adopted a more
purposive approach and held that the term “building” not
only referred
to a house but any kind of structure by which the view
of the wall was obstructed.
The current law in regard to
interpretation:
[80] It is necessary to consider
the general principles of interpretation with reference to the
approach adopted by the SCA
having regard to the approach adopted by
the courts in regard to the interpretation of servitudes.
[81] In Natal Joint Municipality
Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) the SCA held at
para [18] that:
“Interpretation is the process of
attributing meaning to the words used in a document, be it
legislation, some other statutory
instrument, or contract, having
regard to the context provided by reading the particular provision or
provisions in the light of
the document as a whole and the
circumstances attendant upon its coming into existence. Whatever the
nature of the document, consideration
must be given to the language
used in the light of the ordinary rules of grammar and syntax; the
context in which the provision
appears; the apparent purpose to which
it is directed and the material known to those responsible for its
production. Where more
than one meaning is possible each possibility
must be weighed in the light of all of these factors. The process is
objective, not
subjective. A sensible meaning is to be preferred to
one that leads to insensible or unbusinesslike results or undermines
the
apparent purpose of the document. Judges must be alert to, and
guard against, the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used. To
do so in regard to a statute or statutory instrument is to
cross the
divide between interpretation and legislation; … The
‘inevitable point of departure is the language of the
provision
itself’, read in context and having regard to the purpose of
the provision and the background to the preparation
and production of
the document”.
[82] In Bothma-Batho Transport
(Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA) Wallis JA held as follows at para [12]:
“Whilst the starting point
remains the words of the document, which are the only relevant medium
through with the parties
have expressed their contractual intentions,
the process of interpretation does not stop at a perceived literal
meaning of those
words, but considers them in the light of all
relevant and admissible context, including the circumstances in which
the document
came into being. The former distinction between
permissible background and surrounding circumstances, never very
clear, has fallen
away. Interpretation is no longer a process that
occurs in stages but is ‘essentially one unitary exercise’.
See also: Rainy Sky SA v Kookmin Bank
[2011] UKSC 50
[2012] Lloyds Rep 34
(SC) para 21.
[83] Both KPMG Chartered
Accountants (SA) v Securefin Ltd and Another
2009 (4) SA 399
(SCA) at
paragraphs [39] – [40] and Natal Joint Municipality Fund supra
make it clear that in interpreting any document the
starting point is
inevitably the language used but it falls to be construed in the
light of its context, the apparent purpose to
which it is directed
and the material known to those responsible for its production.
Context, the purpose of the provision under
consideration and the
background to the preparation and production of the document in
question are not secondary matters introduced
to resolve linguistic
uncertainty but are fundamental to the process of interpretation from
the outset. See Dexgroup (Pty) Ltd
v Trustco Group International
(Pty) Ltd & Others
2013 (6) SA 520
(SCA) at par [16] per Wallis
JA.
[84] It seem to me that the context
is now determined by both the internal context, namely the language,
words, grammar and syntax
of both the provisions in question and the
document as a whole, and also by the external context provided by the
factual matrix
in which the document finds its setting, which
includes both the background and surrounding circumstances.
[85] I agree with the view that
though it may be necessary to correct an apparent error in the
language used in a document in
order to avoid an identified
absurdity, a court should be slow to alter the words actually used
and must, as cautioned in Natal
Joint Municipality Fund supra, guard
against the ‘temptation to substitute what they regard as
reasonable, sensible or businesslike
for the words actually used’.
As was also stated in that judgment:
‘A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike results
or undermines the apparent
purpose of the document.’
[86] In my view the sound approach
adopted by Wallis JA and the principles set out by him in
Bothma-Batho Transport (Edms) Bpk
judgment (supra) are equally
applicable when dealing with the interpretation of servitudes.
Bearing this in mind, I turn now to
deal with the crucial question, -
“Is the existing tree which was already planted at the time of
the conclusion of the agreement
of sale in April 2004, covered by the
provision?
[87] In my view the important part
of the relevant provision is that “No … tree shall be …
planted which
would obstruct or partially obstruct the sea views”.
[88] On a consideration of the
provision I find that the word ‘would’ points to a future
state of affairs and places
the emphasis where it belongs i.e. on the
sea views, and accordingly must be interpreted as intending to cover
both planted trees
and trees to be planted.
[89] In my view a proper
consideration of the servitude reveals that the clause creates a
situation where the owner of Erf 983
is obliged to ensure that the
view from the applicant’s house at the time that the
restriction was registered remains unrestricted
by buildings, plants
or trees on the property and such condition included within its
purview trees already planted at the time
of the creation of the
servitude.
[90] I am satisfied that this is
what was clearly intended by the creation of the servitude and I find
support for this finding
in the circumstances under which the
servitude was agreed to.
[91] It is clear that the obligation
embodied in the servitude is to afford unobstructed views of the
sea as such views existed
at the time of the creation of the
servitude. It is further clear that what the servitude seeks to
preserve is the applicant’s
views of the sea. It must
therefore logically follow that no structure or tree may obstruct
that view.
[92] Accordingly I cannot agree
with the contentions made on behalf of the respondents that because
the tree had already been
planted at the time of the conclusion of
the agreement, the tree is excluded from the operation of the
servitude.
[93] If I were to accept that the
servitude in question was created with the intention that it did not
apply to already existing
trees which could be permitted to grow to
the extent that they obscured the applicant’s view, and that
the prohibition only
applied to the planting of trees, then the
servitude would not achieve the exclusive purpose of its creation,
which in my view
is to preserve the applicants’ views of the
sea. The result would be that the servitude would be rendered
completely ineffective
and be reduced to a futility.
[94] I am satisfied that a proper
and correct interpretation of the servitude must mean that trees
already planted at the time
of the creation of the servitude are in
fact included in the operation of the clause.
[95] In the result I find that that
the fourth respondent and her predecessors in title are in breach of
the servitude.
[96] It follows that the applicant
is entitled to enforce the servitude and the fourth respondent is
obliged to afford the applicant
an unobstructed view of the sea. It
seems to me that the easiest way to afford the applicant an
unobstructed view of the sea would
be for the fourth respondent to
trim the tree. Of course, as was submitted by Mr Olivier for the
applicant, the fourth respondent
is at liberty to remove the tree.
[97] Since the fourth respondent from
the outset gave notice of her intention to abide by the decision of
this court, no costs
order will be made against her.
[98] In my view there is no reason
whatsoever why the first and second respondents, after selling the
property to the fourth
respondent, could not have agreed to abide the
decision of the court on condition that the issue of costs be
determined separately.
This decision could have been made as early as
the date upon which they signed the deed of sale to sell the property
to the fourth
respondent. The effect of this would simply have been
that there would have been no need to engage in unnecessary costly
litigation.
I must therefore conclude that first and second
respondents did not make full and frank disclosure to this court when
they deposed
to their affidavits in opposition to the relief sought.
For reasons of their own they elected not to tell this court that
they
had sold the property and/or that they no longer had any legal
interest in the property.
[99] It is difficult not to conclude
that first and second respondents have not come to court with clean
hands. In the premises
I have no alternative but to draw an adverse
inference about the manner in which they have opposed this
application and the manner
in which the matter has been conducted
after they sold the property to the fourth respondent.
[100] The truth is that the manner in
which they have conducted themselves in this matter has impacted
heavily on the cost implications
herein.
[101] It is an important generally
accepted principle of our law that litigation is not a game where a
party may seek tactical
advantages by concealing facts from his
opponent and thereby occasioning unnecessary costs. See Nieuwoudt v
Joubert
1988 (3) SA 84
(SE) at 90 D-E. I agree with the sentiments
expressed by Mullins J in that case where he states at p90 E that
‘There seems
to me unfortunately to be an increasing tendency
amongst litigants and practitioners ‘to play one’s cards
close to
one’s chest’, and not to be frank and open with
an opposing party either prior to summons or during the course of the
proceedings. This is a practice which the courts should seek to
eliminate’. The costs must accordingly follow the result.
[102] Accordingly I make the following
order:
(a) It is declared that the title deed
condition E, contained in the title deed (T 111 355/2004), of the
property (Erf 983, Hout
Bay) registered in the name of the fourth
respondent, namely that “(n)o structure whatsoever nor tree
shall be erected or
planted on the property which would obstruct or
partially obstruct the sea views from the existing structure on Erf
985 Hout Bay”
also applies to the wild olive tree(s) which had
already been planted at the time of the imposition of the condition.
(b) The fourth respondent is ordered
to trim the wild olive tree(s) on the property, described as Erf 983,
Hout Bay, so as not
to obstruct or partially obstruct the applicants’
sea views from the existing structure.
(c) The first and second respondents
are ordered to pay the applicant’s costs as taxed or agreed.
RILEY, AJ