Bet-el Faith Mission v Motthamme and Others (5306/2017) [2020] ZAFSHC 6 (16 January 2020)

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

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 5306/2017

In the matter between

BET-EL FAITH MISSION

APPLICANT

and

JACOB SERESENGWE MOTTHAMME

1st RESPONDENT

SARAH IRENE MOTTHAMME

2nd RESPONDENT

MANGAUNG METRO MUNICIPALITY

3rd RESPONDENT

HEARD ON: 7 November 2019

CORAM: MURRAY AJ

JUDGMENT BY: MURRAY AJ

DELIVERED ON: 16 JANUARY 2020

[1] The Applicant applies for a demolition order regarding its neighbours' garage which encroaches onto its property. The First and Second Respondents ("the Respondents") oppose the application and pray to rather be ordered to pay reasonable compensation to the Applicant and to have the portion of the Applicant's land on which the garage encroaches, transferred to them. The Third Respondent, the Mangaung Metro Municipality, ("the Municipality") does not oppose the application.

[2] The Applicant is the registered owner of Erf […]3, Ashbury, Bloemfontein, known as […] Street. The 1652m2 stand, registered in terms of Title Deed T3097/1991, is a consolidation of four Erven, […]5, […]6, […]9 and […]0. A church and parking areas occupy the erf.

[3] The Respondents bought the adjacent property, Erf […]7, known as […] Street, in 1996. It was registered in their name

in terms of Title Deed T8980/96. They aver that they replaced an existing wire fence on the Applicant's erf with a brick and steel

fence in 1998 in the bona fide belief that the fence denoted the true boundary between the two erven. Furthermore, according to them, after a car damaged their home in 2004, they repaired and expanded the house by building onto the Applicant's side of the house, a brick garage.

[4] The said garage extends over the boundary line between the Applicant's Erf [...]6 and the Respondents' Erf […]7, however,

as did a structure erected by Mr Beans, another neighbour of both the Applicant's and the Respondents', on Erf [...]8. A Land Surveyor's

aerial photograph annexed to the Founding Affidavit shows the two structures encroaching onto the Applicant's land. The said Land

Surveyor's official beacon ("the Beacon Certificate") map annexed to the Replying Affidavit indicates an overlap of 4,5 metres wide, amounting to a total encroachment of 105m2.

[5] On the Applicant's version he approached both Mr Beans and the Respondents and requested that they remove the encroaching structures. While Mr Beans in around 2012 already complied with the request, the Respondents refused to demolish their garage. Criminal proceedings instituted against them in the Magistrates' Court for non­ compliance with the provisions of the National Building Act in 2015 were unsuccessful due to a discrepancy in the erf numbers on the charge sheet.

[6] The Applicant then approached the Third Respondent, the Mangaung Municipality, for assistance. The Third Respondent on 26 October 2016 issued the Respondents with a Notice in terms of Regulation A 25(6) of the National Building Regulations and Building Standards, issued in terms of the Act on National Building Regulations and Building Standards, Act 103 of 1997. ("the Act"). The Municipality notified them of the illegal building on their Erf [...]7 which encroached on Erf [...]3. The letter explicitly stated that:

"An inspection on 27 February 2014 of the above mentioned site revealed that a building were erected illegally without any written permission from this department or any approved building plans and do encroach on Erf [...]3."

Which is a contravention of Section 4(1)(2)(3)(4) Section 1 (Building, erect, owner) read with Regulation A2, read with Regulation A22 read with Regulation 11 in terms of Section 17 of Act 103 of 1977 THE ACT ON NATIONAL BUILDING REGULATIONS AND BUILDING STANDARDS.

You are instructed to demolish the building that encroach on Erf [...]3."

[my emphasis]

[7] The Respondents simply refused to receive the Notice and refused to remove the encroaching garage. The Applicant stated in its Founding Affidavit that the Respondents have approached it on numerous occasions, offering to compensate it to have the relevant land transported onto their name. The Respondents admit that their son has indeed made such an offer to the Applicant.

[8] During argument it emerged, in fact, that between the institution of the application in 2017 and the arguing thereof in court in 2019, the continuous negotiations and unsuccessful attempts to settle the matter were the direct cause of the two-year delay upon which the Respondents now attempt to rely in their bid to have the application for demolition dismissed.

[9] It is clear that the Applicant does not wish to accept compensation in lieu of its land. It is therefore not a case like Trustees, Brain Lackey Trust v Annandale[1] in which it was stated that if the court knows that the innocent party is in fact prepared to accept monetary compensation, the court should be most reluctant to order demolition.

[10] It is important to note that encroachment is not to be construed as a type of nuisance: it is an unlawful act.[2] The encroacher unlawfully interferes with the neighbour's use of his land without having a right to do so. In the instant case the encroachment interferes with the Applicant's intention to build a new Church and to expand the parking area to accommodate more congregationists. Equity or fairness only becomes an issue when the owner of the land claims removal of the encroachment and the court has to exercise its discretion to order such removal or to award compensation.

[11] The Respondents raised several objections to the application. It averred, first of all, that the Deponent as chair of the Board, had no locus standi to bring the application because, allegedly there was no quorum at the Board meeting at which the decision was taken to expand the church and the parking areas for which the Respondents' encroachment needs to be removed. This objection was refuted in reply.

[12] Secondly the Respondents averred that they had been under the bona fide belief that the garage was built on their own land. They even went as far as to aver that they have never been accused of encroachment and were surprised when the application was issued after their son had approached the Bishop with their offer to purchase the land. That averment flies in the face of the Applicant's statement that, as far back as 2012 already, it had informed them, as well as

their next-door neighbour, Mr Beans, that their respective structures protruded on Church land and asked them to remove the encroaching

structures. The Respondents refused and now allege that they cannot remember having been requested to do so. That is highly improbable,

however, in view thereof that Mr Beans did remove the encroachment, from which he apparently earned an income, upon the Church's request in 2013.

[13] The Respondents maintained, furthermore, that the Applicant acquiesced in their occupation of the relevant land because it did not object when they built the wall on the church ground in 1998, and did not complain when they built the 'offending' garage in 2004 or 2005, and should therefore be estopped from demanding demolition.

[14] Their allegation that the Applicant has known for about 20 years that they had built the garage (even before the Church was built) and had had free and undisturbed possession of it "for that period" holds no water, however. It completely disregards the fact that the Applicant already asked them to remove the structure in 2012;

instituted criminal proceedings against them in 2014, which proceedings only failed because of the discrepancy regarding the erf

numbers; requested the Municpality to order them to demolish the illegal structure, which 2016 notification they ignored; and instituted the present application for demolition in 2017 already.

[15] That is definitely not the type of conduct than can be described as acquiescence or as the 'devil-may-care attitude with which the applicant regarded this matter' ("die traak-my-nie-agtige gelatenheid waarmee die applikant hierdie aangeleentheid bejeen het' ) which led to the refusal of the demolition application in Rand Waterraad v Bothma[3] on the basis of equity and fairness.

[16] The Respondents' submission that, because of the length of time that had elapsed between that event and the present application, and between the institution of the present application and the pursuing thereof, the Applicant is not entitled to demand demolition at this late stage, appears to rely on the Roman Dutch 'one-year-and-a day' rule. That rule, however, has not been accepted into South African law, as was made clear in Rand Waterraad v Bothma[4] and in Silberstein & Schoeman's The Law of Property.[5]

[17] The Respondents' submission that the Applicant should have foreseen a factual dispute and should not have approached the Court by way of application proceedings, is not persuasive, either. They offer no evidence to substantiate their averment that the aerial photo does not accurately portray the boundaries. A bold denial of the correctness of the lines is insufficient. It is common cause that there is encroachment and that the Respondents have offered to buy the relevant land.

[18] The Respondents also averred that the surveyor's official beacon certificate which confirms the boundary lines on the aerial

photograph, as well as the surveyor's affidavit should be ignored because they were only annexed to the Replying Affidavit.[6] However, an applicant is entitled to introduce further corroborating facts by means of a replying affidavit should the contents of the answering affidavit call for such facts.[7] The allegation that the Respondents' structure encroached upon the Applicant's land was made in the Founding Affidavit, supported by the aerial map and the Municipality's letter. In my view the surveyor's beacon certificate and affidavit constituted such further

corroborating facts adduced in response to the Respondents' allegations that the boundary lines were not correct, and should be

allowed.

[19] The Respondents failed to avail themselves of the invitation to file further answering papers in which they could have addressed this issue or any unexpected or new information in the Replying Affidavit. They failed, also, to provide any corroboration or evidence to substantiate their claim that the boundary lines were incorrect or to file an authorised building plan for the extension to the house and the garage.

[20] It is clear from the papers, furthermore, that there had been lengthy attempts to settle the dispute and there is no evidence that the Respondents previously disputed the accuracy of the boundaries. In fact, on their own admission, they offered to purchase the land on which their structure encroached, using the very measurements reflected in the surveyor's documents and on the Applicant's Title Deed. There is therefore no reason to find that the Applicant should have foreseen a factual dispute about the boundaries.

[21] The Respondents also maintained that the Court was in no position to gauge the extent of the prejudice to the Respondents if they were indeed to be ordered to demolish. They averred that the Court could not make a decision without hearing expert evidence regarding the potential structural damage and danger since on the aerial photograph as well as on the beacon map, the boundary line does not only affect the garage, but also indicates that a metre of one bedroom is also on the wrong side of the boundary line, which means that it will have to be demolished, as well, which would obviously affect the roof structure too.

[22] The Respondents listed the expenses they would allegedly suffer upon demolition, namely: a) an almost total loss of the construction

material which would be unusable except for landfill; b) no compensation for the costs to erect a new garage and no compensation

for the benefit derived from using it; c) approximate costs of erecting a new garage of around R80 000, d) demolition costs; e)

labour costs; f) paving R2 500; and g) a new fence and moving the gate of R20 000. They did not indicate whether these were just

'thumb-suck' figures, and no quotation was annexed.

[23] It was submitted that the said figures were already stale because of the lengthy delay before the matter was finally brought to court since the application was instituted in 2017 already. As pointed out earlier, the delay was caused by the lengthy negotiations, not by the Applicant's failure to pursue its claim.

[24] In arriving at the 'fair and reasonable compensation' that the Respondents were willing to offer for the land(without specifying

what that was), they averred that since there is a 3,15m wide servitude running along the side of the Applicant's erf where the

Church will not be able to build or pave because the Municipality needs to reach the service lines underneath that strip of land, the prejudice would not be significant since the Church would have no use of that area anyway. They alleged that it would accordingly be unreasonable to be ordered to demolish the garage.

[25] For that same reason, they aver, the land for which they offer 'fair and reasonable compensation' should not be expensive since it would exclude the area of the servitude and would amount to a total of only 62m2, not 105m2 What they fail to address, however, is that while their own structure is already built over the said servitude with reference to the Applicant's erf, it violates the 3.15m servitude on all sides except the street side registered against their own Title Deed, as well.

[26] It was submitted on behalf of the Respondents that the Court should treat this case as an exception which would entitle it to be adjudicated on the notion of equity and fairness in terms of the principles of neighbour law, so as to order the payment of compensation instead of demolition. The difference between the Rand Waterraad v Bothma[8] on which they relied, and this one, however, is that the structure in that case was not illegally erected without approved building plans, which constitutes a criminal offence.

[27] As is evident from the Third Respondent's 2016 letter, besides having been erected illegally without an approved building plan in contravention of the Act,[9] which constitutes a criminal offence, an inspection proved the garage to encroach onto the Applicant's land. It extends over the very servitude on the neighbouring erf that the Respondents aver the Church would not be able to build or pave over because of the service lines running underneath that strip of land.

[28] It also contravenes the restriction registered against the Respondent's own erf by being built over the 3.15m wide servitude

encasing their own Erf on three sides. Therefore, even if the Respondents were to be allowed to acquire the land from the Applicant

against compensation, the structure would remain illegal since it is built over the existing servitude in direct contradiction of the restriction registered against both Erfs.

[29] As was stated in Fedgroup Participation v Trustee, Capital Property[10] South African Law has always carefully protected the right of ownership, especially of immovable property, as a most important and extensive right. In Phillips v South African National Parks Board[11] the Court held that:

"It is indisputable that an encroachment of the nature in issue in the instant case constitutes an interference with applicant's property rights, such as to constitute a deprivation in terms of the provisions of section 25 of the Constitution. It follows that, in exercising its discretion the Court will accept, as a starting point, that the owner is entitled to obtain a demolishing order in respect of the encroaching structure. The primary remedy therefore is an order for removal of the structure."

[30] Where encroachment is the only problem, the Court has a discretion to either order the removal of the encroachment or to award damages and compensation.[12] In such instances, the deciding factor is the disproportionality or otherwise between the removal of the encroachment as against the damage or inconvenience suffered by the aggrieved land-owner.[13] When compensation rather than demolition is ordered, it is usually done on the basis of policy considerations such as an unreasonable

delay on the part of the landowner, or on the basis of what might be viewed as acquiescence, and prejudice and the principles of neighbour law are taken into account.[14]

[31] However, where a building not only unlawfully encroaches, but was also unlawfully built in contravention of the Act or building

regulations or built without the plans having been approved by the municipality, as in casu, different considerations apply.

[32] That is so because the law is clear: a court cannot condone illegal activity. That is clear from Navsa ADP's statement in Fedgroup Participation Bond Managers (PTY) Ltd v Trustee of the Capital Property Trust[15] that "[a] Court will not countenance or be party to perpetuating unlawful conduct." In that respect he labelled as an intractable problem for Fedgroup the fact that the encroaching structure which it sought to have remain in place and of which if required transfer, was erected unlawfully since no building plans were submitted.

[33] In Lester v Ndlambe Municpality[16], too, the Appellate Division held that the doctrine of legality requires courts to enforce statutory prohibitions the contradiction

of which constitutes a criminal offence. In casu it is common cause that the encroaching structure has been erected unlawfully without any approved building plans as required by s 4(1) of the National Building Regulations and Building Standards, Act 103 of 1977. The structure is therefore both judicially and administratively an unlawful addition in terms of the Act and entitles the Applicant to seek an order to have it demolished.

[34] The objective of the Act is to provide uniformity in the law relating to the erection of buildings in the area of jurisdiction of

local authorities and to preserve building standards. That is why s 4(1) requires prior written approval of all building plans and compliance with the requirements of the Act, ands 4(4) makes non-compliance withs 4(1) a criminal offence.

[35] In holding that courts have a duty to ensure that the doctrine of legality is upheld, the Court[17] referred to Standard Bank of South Africa Ltd v Swartland Municipality[18]in which it was stated that:

"the unauthorised and illegal conduct of the third respondent (in unlawfully erecting a structure without approved plans) is contra boni mores and contrary to public policy, and cannot be countenanced by the court. It militates against the doctrine of legality, which forms an important part of our legal system, and more especially since the Constitution became the supreme law of the country."

[36] In applying the disproportionality of prejudice test, the encroaching owner's own conduct plays an important role. As stated in Lester,[19] while one is acutely aware of the financial implications, inconvenience and disruption which the partial demolition will cause the Respondents, the upholding of the doctrine of legality, a fundamental component of the rule of law, must inevitably trump such personal considerations.

[37] In BSB International Link CC v Readam SA (Pty) Ltd[20] the Supreme Court of Appeal held that, despite the court's discretion to reach an equitable and reasonable solution in terms of the common law by ordering payment or compensation rather than removal in cases where the cost of removal would be disproportionate to the benefit derived from the removal, what tips the scale against BSB was that it was warned that it was acting illegally (as the Respondents were warned by the Municipality in 2016 already, and ordered to remove the encroachment), but in spite of such warning deliberately persisted. The Court made it clear that:

"Such conduct can hardly be countenanced by a court. To do so will make a mockery of ordered town planning and (by extension) of the law."

[38] In similar fashion the Respondents in the present case, instead of complying with the instructions to demolish, engaged in obstructive behaviour to delay the finalisation of the litigation while persisting with their illegal conduct.

[39] It is clear from the contents of the application that the Respondents are indeed in legal and administrative breach of the law. For the Court to allow them to keep the structures where they are, would be to perpetuate the illegality. It would, furthermore, set a dangerous precedent in that it would negate the very purpose of orderly urban planning.

[40] In my view, then, in the circumstances of this particular case, the application for the partial demolition of the encroachment therefore has to succeed.

[41] There is no reason why costs should not follow the outcome.

WHEREFORE I make the following order:

1. The application for the demolition of the structure which encroaches from Erf [...]7, Asbury, Bloemfontein, held by the First and Second Respondents under Title Deed 8980/96, onto the Erf [...]3, Ashbury, Bloemfontein, held by the Applicant under Title Deed 3097/1991, is granted.

2. The First and Second Respondents are ordered to demolish within 90 (NINETY) days of this order the said structure to the extent necessary to be fully compliant with the Town Planning Ordinance of the Mangaung Local Municipality, with the provisions of Act 103 of 1977, The Act on National Building Regulations and Building Standards, with the relevant Regulations, and with the Beacon Certificate for Erf [...]3, Ashbury, Bloemfontein, Exxtension 6, dated January 2016.

3. In the event that the First and Second Respondents fail to demolish the structure encroaching onto Erf [...]6, Ashbury, Bloemfontein, within 90 days of this order, the Applicant is authorised to appoint a contractor to demolish such structure for the First and Second Respondents' costs.

4. The First and Second Respondents are ordered to pay the costs of this application, jointly and severally, the one to pay the other to be absolved.

___________________

MURRAY AJ

For the Applicant: Adv GS Janse van Ransburg

Instructed by

Mr CAJ Van Ransburg

Rosendorf Reitz Barry

3rd Street

Arboretum

BLOEMFONTEIN

For the Respondent: Adv JF Mitchley

Instructed by:

Ms AJ Kruger

Attorney for 1st & 2nd Respondents

Matsepes Attorneys

26/28 Aliwal Street

[1] [2003] 4 All SA 527 (C) 2004(3) SA 281 (C) par [41]

[2] Silberberg & Schoeman, The Law of Property, 5th Ed, at p. 125, ftn 379 "In an encroachment the encroacher acts unlawfully.

He/she interferes with the neighbours' use of his/her land without having a right to do so. Equity/fairness only becomes an issue when the owner claims removal of the encroachment and the court has to exercise its discretion to order such removal or award compensation to the owner on whose land the encroachment occurred."

[3] 1997 (3) SA 120 at 139 I - J

[4] 1997(3) SA 120 (0) at 130A- Band 130E

[5] The Law of Property, 5th ed, at p. 121

[6] Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd 2013 (2) SA 204 (SCA) at 212 B - C: that all necessary averments upon which an applicant relies must be in the founding affidavit "is not an absolute rule for the court has a discretion to allow new matter in a replying affidavit, giving the respondent the opportunity to deal with it in second set of affidavits.

[7] eBotshwana (Pty) Ltd v Sentech (Pty) Ltd 2013 {6) SA 327 (GSJ) at 336 G - H in which it was held (at 336 H-1) that a common-sense

approach based on a want of prejudice should be applied in deciding to allow the further corroborating facts to be set out in the replying affidavit.

[8] 1997 (3) SA 120 (O)

[9] Section 4 of the National Building Regulations and Building Standards Act 103 of 1977 provides: '4 Approval by local authorities of applications in respect of erection of buildings (1) No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act. (2) ... (3) ... (4) Any person erecting any building in contravention of the provisions of subsection (1) shall be guilty of an offence ...'

[9] Section 4 of the National Building Regulations and Building Standards Act 103 of 1977 provides:

'4 Approval by local authorities of applications in respect of erection of buildings

(1) No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act.

(2) ...

(3) ...

(4) Any person erecting any building in contravention of the provisions of subsection (1) shall be guilty of an offence ...'

[10] 2015 (5) SA 290 (SCA) at par (33)

[11] 2010 JDR 0480 (ECG) at par 24. See also: Trustees, Brian Lackey v Annandale 2004 (3) SA 281(CPD) at 292; Fedgroup Participation Bond Managers (Pty) Ltd v Trustees of the Capital Property Trust 2015 (5) SA 290 (SCA) at paras (21) - (33); Rand Waterraad v Bothma 1997 (3) SA 120 (0) at 130 F -138 G; Lester v Ndlambe Municipality 2015 (6) SA 283 (SCA) at paras 21 - 23

[12] Lester v Ndlambe Municipality 2015 (6) SA 283 (SCA) at par [22]

[13] Lester v Ndlambe Municipality 2015 (6) SA 283 (SCA) at par [22]; Rand Waterraad v Bothma, 1997 (3) SA 120 (O), at 138; Phillips v South African National Parks Board, supra, ; Trustees Brian Lackey Trust v Annandale 2004 (3) SA 281 (CPD) at par [23]

[14] Fedgroup Participation Bond Managers v Trustees of the Capital Property Trust, supra, at par 35

[15] (20165/2014) [2015] ZASCA 103; 2015 (5) SA 290 (SCA); (2015) 3 All SA 523 (SCA) (30 June 2015) at par [39]

[16] 2015 (6) SA 283 (SCA) (22 August 2013)

[17] Lester, supra, at par [24]

[18] 2010 (5) SA 479 (WCC) at par 22 (See also: Standard Bank of South Africa Ltd v Swartland Municipality 2011 (5) SA 257 (SCA))

[19] Supra, at par [28]

[20] 2016 (4) SA 83 (SCA) (13 April 2016) at para 26