Botha v Dos Santos and Another [2005] ZAGPHC 362; 31356/04 (4 February 2005)

Botha v Dos Santos and Another [2005] ZAGPHC 362; 31356/04 (4 February 2005)

The court found that while the applicants had established a prima facie right, the only outstanding building work was the roof and finishes, which would have minimal impact on privacy and the character of the area. The inspection in loco confirmed that the applicants' privacy concerns related primarily to windows and the raised pool deck. The respondents' tender to install frosted windows and screen the pool deck would substantially mitigate any harm. The inconvenience to the respondents if construction were halted would be significant and outweigh any remaining harm to the applicants. The court therefore ordered the respondents to implement the privacy measures and held that costs would...

Citation
[2005] ZAGPHC 362
Parties
Applicant: Phillip Jurgens Botha; Applicant: Marie Henriette Anderson Botha (nee Munnik); Respondent: Paulo Dos Santos; Respondent: Lordes Dos Santos
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
4 February 2005
Case Number
31356/04
Procedural Posture
Urgent Application / Interdict Application Pending Review
Outcome
Application for an interdict is refused; privacy mitigation measures ordered; costs to be costs in the review application.
Judges
Willis
Legal Topics
Interdict, Balance of Convenience, Privacy Rights, Heritage Conservation Area
Land and Property Civil Procedure Interdict Balance of Convenience Privacy Rights Heritage Conservation Area

Case Brief

Summary, issues, holding and outcome

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Parties

Phillip Jurgens Botha

Applicant

Marie Henriette Anderson Botha (nee Munnik)

Applicant

Paulo Dos Santos

Respondent

Lordes Dos Santos

Respondent

Procedural Posture

Urgent Application / Interdict Application Pending Review

Legal Issues

  1. 1 Whether the respondents should be interdicted from continuing building works pending the outcome of a review application.
  2. 2 Whether the applicants' privacy and enjoyment of their property are sufficiently threatened to justify interim relief.
  3. 3 Whether the balance of convenience favours the applicants or respondents.

Ratio Decidendi

The court found that while the applicants had established a prima facie right, the only outstanding building work was the roof and finishes, which would have minimal impact on privacy and the character of the area. The inspection in loco confirmed that the applicants' privacy concerns related primarily to windows and the raised pool deck. The respondents' tender to install frosted windows and screen the pool deck would substantially mitigate any harm. The inconvenience to the respondents if construction were halted would be significant and outweigh any remaining harm to the applicants. The court therefore ordered the respondents to implement the privacy measures and held that costs would...

Court Disposition

Application for an interdict is refused; privacy mitigation measures ordered; costs to be costs in the review application.

Orders

  • The respondents are to erect a trellis fence along the top of the wall on the western side of Portion 1 of Erf 575 Parktown Township, as high as the existing electric fence on the applicant's wall, and to plant trees and raise the height of the western wall by one metre as necessary to screen the pool deck from the...
  • The respondents are to install and maintain frosted window panes in all windows on the western side of their property.