Buchanan v Hope NO and Others (81/2014) [2014] ZAECGHC 104 (3 July 2014)

Buchanan v Hope NO and Others (81/2014) [2014] ZAECGHC 104 (3 July 2014)

The court held that, when reading Tshiki J's judgment as a whole, it is clear that the point from which the four metre height restriction is to be measured is the finished ground level along the building line. The order is not ambiguous, and extrinsic evidence is not admissible to vary its meaning. The respondents' arguments regarding absurdity, expense, and the applicant's motivation are irrelevant to the interpretation of the order. The applicant is entitled to enforce the order as interpreted, and the respondents must comply within three months. If they fail to comply, the applicant may seek further relief, including contempt of court and demolition orders.

Citation
[2014] ZAECGHC 104
Parties
Applicant: Marsha Anne Buchanan; Respondent: Eugene Llewelyn Hope N.O.; Respondent: Claude Stanley Barnes N.O.; Respondent: Eugene Hope Family Trust IT 2667/97
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
3 July 2014
Case Number
81/2014
Procedural Posture
Civil Application / Interpretation and Enforcement of Previous Court Order
Outcome
Application granted. The previous order is interpreted to require measurement from finished ground level; respondents must comply within three months; costs awarded to applicant.
Judges
M Roberson
Legal Topics
Servitude Interpretation, Building Height Restriction, Declaratory Order, Contempt of Court
Land and Property Civil Procedure Servitude Interpretation Building Height Restriction Declaratory Order Contempt of Court

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Parties

Marsha Anne Buchanan

Applicant

Eugene Llewelyn Hope N.O.

Respondent

Claude Stanley Barnes N.O.

Respondent

Eugene Hope Family Trust IT 2667/97

Respondent

Procedural Posture

Civil Application / Interpretation and Enforcement of Previous Court Order

Legal Issues

  1. 1 Whether the previous order by Tshiki J is ambiguous regarding the point from which the four metre building height restriction is to be measured.
  2. 2 Whether the servitude requires measurement from finished ground level or natural ground level.
  3. 3 Whether the respondents have complied with the order as interpreted by the court.

Ratio Decidendi

The court held that, when reading Tshiki J's judgment as a whole, it is clear that the point from which the four metre height restriction is to be measured is the finished ground level along the building line. The order is not ambiguous, and extrinsic evidence is not admissible to vary its meaning. The respondents' arguments regarding absurdity, expense, and the applicant's motivation are irrelevant to the interpretation of the order. The applicant is entitled to enforce the order as interpreted, and the respondents must comply within three months. If they fail to comply, the applicant may seek further relief, including contempt of court and demolition orders.

Court Disposition

Application granted. The previous order is interpreted to require measurement from finished ground level; respondents must comply within three months; costs awarded to applicant.

Orders

  • The order of Tshiki J granted in case no 654/2010 on 28 October 2011 is interpreted so that the servitude contravened by the respondents provides for a four metre building height restriction from the finished ground level along the building line.
  • The respondents are to comply with the order of Tshiki J so interpreted within three months of the date of this order.