MSC Properties (Pty) Ltd v Drummond-Hay (14026/06) [2007] ZAKZHC 47 (3 December 2007)

IN THE HIGH COURT

OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

14026/06

MSC PROPERTIES (PTY) LTD

APPLICANT

versus

SEAN DRUMMOND-HAY RESPONDENT

RESERVED

JUDGMENT

Delivered on: 3 December 2007

NTSHANGASE, J

[1] In the Notice of Motion in this application where the parties are owners of contiguous properties, Lots 1673 and 1674 situated respectively at 39 and 37 Windsor Drive, Umhlanga, the applicant claims the following relief:

That respondent forthwith take steps to abate the encroachment existing by virtue of its boundary wall encroaching onto applicant’s property, Lot 1674 Umhlanga;

That respondent forthwith take steps as are necessary to render safe the boundary wall on the boundary of his property adjacent to Lot 1674, Umhlanga;

That respondent take such steps as are necessary to adequately strengthen the boundary wall existing on the boundary of his property with Lot 1674, Umhlanga and render the wall compliant with the requirements of the eThekwini Municipality;

That the respondent pay the costs of this application.

[2] In opposing the application the respondent disputes that the boundary wall encroaches onto the applicant’s property. Also, while both parties agree that the respondent bears the responsibility for the necessary remedial work to be done to the wall, another dispute appears to lie in the method to be employed to effect such remedial work.

[3] In regard to the issue of encroachment, I do not find the respondent’s denial of the applicant’s averred existence of encroachment of the boundary wall onto its property to the extent of 193mm at the rear of the site and 789mm in front thereof as determined by applicant’s consulting constructing civil and structural engineer to raise a real, genuine or bona fide dispute of fact.

[4] In this matter consulting constructing civil and structural engineers have been engaged by both parties, Patrick Duffy of Vawda Thornton by the applicant and Berry and Associates by the respondent.

[5] There is, in this matter, a manifest preparedness in both parties to co-operate to ensure the transaction of the necessary remedial work.

[6] I do not consider it to be necessary to reflect on the initial divergence of submissions as, in the hearing of the application, Counsel on both sides have, in a fairly commendable practical approach treated the matter along the lines which have largely informed my discretion and which reflect in the order I shall make.

It is accordingly ordered:

That the respondent is directed to do all things reasonably necessary to effect the repairs to the boundary wall situated between Lots 1673 and 1674 Umhlanga.

It is hereby directed that the following procedure be followed in effecting the said repairs: -

consulting structural engineers, Berry and Associates is to be mandated by the Respondent forthwith to immediately identify all panels in the wall which have either failed or exhibited signs of structural distress;

all panels identified as per subparagraph (a) above are to be included in the said repairs;

the design of and method to be followed in effecting the repairs is as proposed in options 2 or 3 of the letter of Berry and Associates dated the 24th of January 2007, and which forms annexure “SDH 7” to the application papers, or such other methods proposed by Berry and Associates which shall not cause any further encroachment upon the Applicant’s property;

the design and method to be followed in effecting the repairs, as well as the identification of the panels as aforesaid, is, upon its completion by Berry and Associates, to be submitted to engineer Patrick Duffy of Vawda Thornton, constructing civil and structural engineers, for his consent and approval;

the works for the repair of the wall is to commence on a date agreed upon between engineers Berry and Duffy as being appropriate and safe for such construction to be undertaken;

in the event of any dispute arising between the aforesaid engineers, the issue, or issues, in dispute are to be presented to an independent engineer agreed between engineers Berry and Duffy for his opinion, which opinion will be binding on the parties.

3. (a) The respondent is directed to forthwith do all things necessary to effect transfer of that portion of the applicant’s property encroached upon by virtue of the construction of the wall to himself.

(b) The applicant is directed to forthwith do all things necessary to facilitate such transfer.

(c) The respondent is directed to pay the cost of such transfer.

(d) No compensation is awarded to the applicant in respect of such transfer of its property referred to in 3(a) above, to the respondent.

4. The respondent is directed to pay the costs of this application.

Date of Hearing: 21 November 2007

Date of Judgment: 3 December 2007

Counsel for the applicant: Adv AJ Troskie

Instructed by: Shepstone & Wylie

Counsel for the first respondent: Adv IL Topping

Instructed by: Livingston Leandy Inc.

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