New Invest 197 (Pty) Limited and Another v Moss (2206/2023) [2024] ZAECELLC 48 (1 October 2024)

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

(EASTERN CAPE, EAST LONDON CIRCUIT COURT)

CASE NO: 2206/2023

In the matter between:

NEW INVEST 197 (PTY)

LIMITED

First applicant

HESTER PETRONELLA

BOTHA

Second Applicant

and

ALLAN LAWRENCE MOSS

Respondent

JUDGMENT

MAKAULA J:

A. Introduction.

[1] The first applicant is a company with limited liability duly registered in accordance with the company laws of the Republic of South Africa carrying on business as a Property - Owning Corporation. The second applicant is the sole director of the first applicant. The first applicant is the registered owner of Farm 1337 situated in the District of East London, 132,8998 hectares in extent and adjoins Farm 1338. The second applicant took up residence on the farm in 2012

[2] The respondent is the registered owner of Tower Hill Farm No 1338, 58 hectares in extent. The respondent operates a construction of dams and excavations related to earth moving operations, under the name A L Plant Hire trust from farm 1338. The respondent took up residence on the farm during or about the years 2020/2022.

[3] The genesis of the problem between the two neighbouring farms is that the second applicant avers that the respondent is interfering and has restricted her to have access to the portion of her farm by constructing an electric gate across the via necessitas that has always existed between the two farms and thereafter denied the second applicant access to the road, constructed an illegal dam structure that has caused damage to the pristine plant ecosystem found in the valley where the illegal dam has been built on her property. The alleged actions by the respondent necessitated the launching of this application wherein the second applicant sought the following order;

“1. That the respondent be ordered to restore the status quo ante to the applicants, by allowing unfettered access to, and unhindered thoroughfare along, that portion of the Old Transkei Road. providing access to farm 1337, by unlocking any gate preventing access along the Old Transkei Road, alternatively by providing the second applicant forthwith with a remote control to enable her to open the gate as and when access is required.

2. That the respondent is hereby interdicted from:

2.1 obstructing the applicant’s free and unhindered access to any portion of farm 1337, district of East London; and

2.2 entering onto farm 1337, district of East London, or authorizing any other person to enter onto farm 1337 for any purpose whatsoever,

unless with the applicant’s prior written permission to do so; and

2.3 engaging in any unauthorized earthquakes, removal of vegetation, road construction or any other activity on the farm 1337 or authorizing any other person to do so.

3. That the respondent be directed forthwith to compile a decommission and rehabilitation plan, to be submitted to the Department of Water and Sanitation for approval, prior to commencement of the demolition of the unlawful dam structure constructed on farm 1337, and prior to the rehabilitation of the environmental damage caused thereby.

That the respondent be directed to appoint environmental experts within 14 days of the date of this order, to assess the cost of the rehabilitation process in accordance with the parameters outlined in the National Environmental Management Act and to make recommendations as to appropriate independent contractors to be appointed to undertake the work of rehabilitation, at the respondent’s costs (including the need for the respondent to provide security for the costs of decommissioning the dam and rehabilitation of the environmental damage, by depositing the necessary funds into the Trust account of the applicant’s attorneys.

That the respondent be directed, in accordance with the report of the environmental experts aforesaid, to engage the appropriate independent contractors specializing in decommissioning dams and environmental rehabilitation, to ensure that appropriate steps are taken to remove the unauthorized earthworks constructed on the farm 1337, district of East London, at the respondent’s costs.

To rehabilitate the area to its astral best while natural state by inter alia:

6.1 filling the excavation at the dam site and restoring the natural ground contours; and

6.2 by replanting the disturbed ground with appropriate indigenous shrubs and ground cover, to restore the vegetation status quo ante.

7. That the respondent be ordered to restore the status quo ante in regard to the boundary fence demarcating the boundary between farm 1337 and farm 1338, district of East London, which fence has been destroyed in the dam construction.

8. That the respondent be directed to restore the status quo ante of the Old Transkei Road by the repair and resurfacing with tarmac of the holes/trenches excavated by the respondent on the 8th of June 2023.

9. That the respondent be interdicted and restrained from communicating with, or having any contact with, the second applicant by any means whatsoever (e-mail, telephone or personal contact) save through correspondence directed through his attorneys.

Further and/ or alternative relief.

That the respondent pay the costs of this application on a scale as between attorney and client.”

[4] The application is opposed by the respondent on various grounds.

[5] At the commencement of the proceedings, Mr. Wood, for the respondent, stated that;

5.1 paragraph 1 of the order sought is no longer in dispute in that the second applicant had been given access to her property by being supplied with a security code to unlock the gate;

5.2 paragraph 2 was conceded in that the respondent undertook to comply with the provisions thereof.

5.3 in respect of paragraph 7 the respondent agreed that an interdict may be taken in that he is not going to communicate with the second applicant in any other form other than through his attorneys.

[6] What remains to be determined are paragraphs 3, 4, 5 and 6 of the order sought.

B. The Issue

[7] The issue that remains for determination is whether respondent has unlawfully constructed a dam, fence and earthworks thus destroying the natural vegetation on farm 1337 and liable to remove the structure and return the location to its status quo ante.

C. The applicants’ case.

[8] The second applicant traces the issue of the alleged unlawful construction of the dam by the respondent to his denial of her access to the farm via the Old Transkei Road. The second applicant contends that she was denied access because the respondent was concealing his unlawful construction of the dam, the consequent destruction of the natural vegetation (environment) and the removal of the fence.

[9] The second applicant testifies that on 29 May 2023 she decided to log onto Google Earth and studied the aerial image of her farm. To her astonishment, she noticed a big dam that had been excavated, which excavation appeared to be across the boundary wall of her farm and farm 1338, a feature that she had not seen before. What triggered her actions was the conduct of the second respondent refusing her access to her farm via his farm. On the following day 30th of May 2023, she decided to inspect the fence and the dam site by foot to ascertain if the dam indeed crossed over to the boundary between the two farms and what was the true factual position on the ground. Her sister Elena Smith accompanied her. They traversed through thick bush which made it almost impossible to access the dam. Much to their dismay they stumbled upon an excavated cavity where ‘the fence just ended in midair, having been broken open’ by the new dam. She arranged for photographs of the area to be taken and annexed them as FA17 and FA18 to her founding papers. She testifies thus about what the photographs.

“41.4 The photograph on the bottom right- hand side of Annexure “FA17” indicates the end of the broken fence hanging over the excavated wall, with the photograph at the top of Annexure FA18 indicating the extent of the mechanical work done on the excavation, and the fence hanging in its broken state over the edge of the excavation. I was, and have remained, deeply disturbed by this revelation. The earthworks done on the site were done without my knowledge or consent and have left an unsightly scar on the terrain, which was formerly in a pristine and natural state.

42.1 A perusal of the photographs indicates clearly that the fence has been removed across the dam frontage, and one can observe the other side of the excavation, where the fence has been cut, as the remnants of the fence are held up by a stone attached to a piece of fence hanging down the excavated area.

42.2 the new dam clearly crosses over the boundary line between the two properties and the entire dam wall has been constructed on my side of the boundary.”

[10] The second applicant attached Google Earth image of farms1337 and 1338 as Annexure FA19 indicating the dam in question, with cadastral lines indicating the boundary between the two farms. She further annexed a letter from the Surveyor General of the Eastern Cape, which confirms that the dam is located on both farms 1337 and 1338. She contends that it is clear from the photographs that the vegetation at the sight of the dam on her side of the farm had been entirely removed. The second applicant states that the construction of the dam is unlawful as she was never approached before it was constructed. She contends that even if she was, she would not have given permission that a dam be constructed on a farm. As prayed for in the notice of motion, the second applicant argues that the entire dam and surrounding areas that were excavated, must be rehabilitated by a

company which specializes therein, with the respondent to pay the costs thereof.

[11] The second applicant states that on Saturday, 8 June 2023 she was returning to her farm at about 17h00, when she noticed a TLB, operated by the respondent, busy digging a trench right across the Old Transkei Road approximately one to two meters before turning into her driveway. When she and others in her company, asked the respondent as to why he was digging the trench across the tarmac, the respondent informed them that he was digging test holes so that he could establish if the road was suitable for his trucks to use, as he believed it was too dangerous to turn off the N2 onto Schafli Road. The respondent wanted his trucks to turn off the N2 onto the Old Transkei Road, where it meets N2 on the far side of farm 247. The second applicant contends that the tarmac surface of the road has now been permanently damaged, and it will erode with the first rain and cause a problem if it is not repaired properly hence, she wants the respondent to take steps to restore the road to its status quo ante to prevent the inevitable erosion that will follow. The second applicant submits that the trench dug across the road. could never have been done to obtain a soil sample from a test hole and a soil sample would require a small excavation if it was required at

all. She states that the respondent was persuaded to cover over the damaged tar surface, but the road has not been repaired to its erstwhile condition as it was not tared by the respondent hence, she seeks and order compelling the respondent to do so.

D. Respondent’s case.

[12] The respondent contends that when he bought the property, the dam had already been constructed by those he purchased the farm from. All he did was to raise the dam wall by no more than 3 meters and would estimate that approximately 90% of the water retained in the dam is on his property. He testified as follows in this regard,

“(a)s stated here in above, the dam was present on the property when I purchased same. I never erected new dam but merely raised the dam wall… I don't dispute that the dam wall is technically on the property owned by the applicants” (sic)

[13] The respondent states that when he raised the wall, he had difficulty in establishing the boundary line as there was no boundary fence. The respondent contends that the poles and the corner post where the fence was supposed to go were placed by the second applicant’s tenant without putting a fence.

[14] Mr. Hermanus Barend Smallberger testifies that he was a tenant of the second applicant in 2019 having hired a portion of her farm to the east of Schafli Road. He states that

“To my knowledge and what I witnessed from the dam...There were no fences in all the time that I rented from Mrs. Botha. I made a deal with Mrs. Botha to fence approximately 300 meters and that I could recoup the costs on the rental I paid to her for grazing. Mrs. Botha and Mr. Moss gave me the approximate line of direction for the fences. I only managed to put the poles in the ground and never put any fence onto it.” (sic)

[15] The assertion that there was no fence, and the area was overgrown with vegetation is confirmed by the son of the respondent Mr. Dylan Moss who states that at the time his father leased a portion of the second applicant’s farm they kept the roads and ‘fences’ clean and made fire breaks as needed. He confirmed the evidence of the respondent that Mr. Smallberger put up new fence poles and fixed some original fence lines on the portion of the farm he leased.

[16] Mr. Pieter Labuschagne’s evidence is of a general nature talking to the roads, fences and the dam. He maintains that roads were well kept by the respondent during the period he leased the portion of the farm from the late husband of the second applicant.

[17] Even though the respondent conceded that the wall of the dam is on the applicants’ property and he did earthworks without permission from her or the Department of Environmental affairs, the respondent however argues that he cannot demolish the dam and restore the land to its former state without the Environmental Experts overseeing that, especially because the second applicant had already approached Environmental Experts regarding her complaint. In a nutshell, the respondent says that both parties should await the report from the Environmental Experts as to how the environment needs to be protected going forward and how the land needs to be restored to its former state. Furthermore, the respondent submits that, because of the complaint lodged by the second applicant, he approached Mr. MacDonald of Lwethuma Environmental Consultants to conduct a study in respect of the dam and will comply with his and the recommendations of the Department of Environmental Affairs.

E. Analysis.

[18] The issue between the parties is basically factual in nature especially because of the concessions made by the respondent. The conduct of the respondent providing the second applicant with a remote control to access her property after the launch of this application, is telling when it comes to the conduct of the respondent towards the second applicant. What is uncontroverted is that other users of the gate were provided with remote controls to access their properties via the respondent’s property without any difficulty. It is inconceivable why such access was denied to the second applicant. No reason has been provided why it was so and why there is a change of heart at the door of the court to give access to the second applicant.

[19] It is further not in contention that the respondent did dig a trench across the tarmac on the Old Transkei Road. which was used by the second applicant to access her farm, albeit the reason proffered by the respondent is that he was digging test holes for soil sample purposes regarding whether trucks transporting fuel would be able to use that road. The respondent states that as he was busy digging a trench across the tarmac using a TLB machine, he was disturbed by the second applicant and the people who were in her company. He says the following,

“However, when the second applicant and other persons in her presence arrived, and as a result of her attitude, I stopped digging the trench and have filled it in and the Second Applicants access to her property has not been impeded in any way and will not be impeded.” (sic).

[21] The concession by the respondent in this regard is concerning, in that he concedes refilling the trench upon being confronted by the second applicant and did not continue to take the soil samples, yet he failed to restore the tarmac. The photographs which were attached by the second applicant depict that it was not a small trench but a huge trench across the tarmac. The flow of the tarmac road Is broken by a huge perch of gravel. There is no evidence from the respondent that he had repaired the road to be in its former state, which is, a tarred portion which forms part of the tared road. That being the

case, the respondent should have resurfaced the portion of the road with tarmac and restore it to its former state. This should be viewed in the backdrop of the contention by the second applicant that Mr. du Toit Appelcryn, a Geologist, who was in her company contested that a trench across an existing tar road is not the appropriate method of digging a test hole. This conversation is not disputed by the respondent except to deny knowledge that he is a Geologist.

[22] Before I even venture into deciding whether the dam was there before the second applicant discovered it, it is clear from the evidence and the concession made by the respondent that he did raise the dam wall by 3 meters on the side of the second applicant. He did not do so with the permission of the applicants. His conduct therefore is wrongful and unlawful and cries out for the rehabilitation of that area of the farm of the applicants.

[23] I do not consider it necessary that I should resolve the dispute as to whether there was a dam before the discovery made by the second applicant. The portion of the dam that is on the respondent farm does not concern the applicants as that is not their property. The issue that must be decided is the portion of the dam that is on the property of the applicants. An issue that has been conceded by the respondent on grounds stated above. This is even borne out by the undertaking made by the respondent that he is prepared to comply with the report that may be made by the environmental experts already approached by the second applicant. This should be viewed in the light that the second applicant’s evidence is not that she approached the experts for that purpose. The respondent must restore the status quo ante in respect of the land where the dam is overlapping and to restore the vegetation. That, as conceded must be done under the supervision of Department of Environmental Affairs.

[24] Mr. Smalberger and respondents’ evidence is contrary to what the photographs depict of the current state of the fence. The photographs reveal that the fence is hanging above the dam as described by the second applicant in paragraph 9 above. I need not repeat such evidence except to say that I accept it as a true reflection of the photograph. Furthermore, it is necessary that the fence that has been affected by the construction of the dam on the side of the second applicant's farm should be restored by the respondent.

[25] Regarding costs, there is no reason why I should depart from the usual practice that costs should follow the results. As can be seen from the evidence above, the conduct of the respondent has been appalling towards the second applicant throughout their dispute. He deprived her of access to her farm by locking the gate and refused to give her the access remote control, by digging a trench under the pretext that he was taking soil samples and also straying into her land by digging a dam on her property. Despite numerous emails and correspondents sent to the respondent by the second applicant herself and her attorneys, the respondent continued with his conduct regardless. Therefore, the respondent has to pay the applicants’ costs.

[26] Consequently, I make the following order.

27.1 That the respondent restores the status quo ante to the applicants, byallowing unfettered access to, and unhindered thoroughfare along, that portion of the Old Transkei Road. providing access to farm 1337, by unlocking any gates preventing access along the Old Transkei Road. alternatively, by providing the second applicant forthwith with a remote control to enable her to open the gate as and when access is required.

26.2 That the respondent be and is hereby interdicted from:

26.2.1 obstructing the second applicant’s free and unhindered access to any portion of farm 1337, district of East London; and

26.2.2 entering onto farm 1337, district of East London, or authorizing any other person to enter onto farm 1337 for any purpose whatsoever, unless with the second applicant's prior written permission to do so; and

26.2.3 engaging in any unauthorized earthworks, removal of vegetation, road construction or any other activity on farm 1337, or authorizing any other person to do so.

26.3 That the respondent be and is hereby ordered to appoint environmental experts, within 30 days of the date of this order, in order that such experts provide a report and make recommendations within thirty days (30) as to appropriate independent contractors to be appointed at the respondent’s costs, to undertake the work of decommissioning the dam on the applicants’ farm 1337 and rehabilitation of the environmental damage thereof.

26.4 That the respondent be and is hereby ordered, in accordance with the report of the environmental experts aforesaid, to engage the appropriate independent contractors specializing in the decommissioning of dams and environmental rehabilitation, to ensure that all appropriate steps are taken within thirty days (30) of receipt of the report:

26.4.1 to remove the unauthorized earthworks constructed on farm 1337, district of East London at respondents’ costs; and

26.4.2 to rehabilitate farm 1337 to its erstwhile natural state by filling the excavation at the dam site and restoring the natural ground contours at the respondent’s costs: and

26.4.3 to rehabilitate the area to its natural state by replanting the disturbed ground with appropriate indigenous shrubs and ground cover to restore the vegetation status quo ante at the respondent’s costs

26.5. The respondent be and is hereby ordered to restore the status quo ante regarding the boundary fence demarcating the boundary between farm 1337 and farm 1338, district of East London at the respondent’s costs.

26.6 That the respondent is hereby ordered to restore the status quo ante of the Old Transkei Road by the repair and resurfacing with tarmac, of the holes/ trenches excavated by the respondent on 8 June 2023 within sixty days (60) of this order.

26.7 That the respondent be interdicted and restrained from communicating with, or having any contact with, the second respondent by any means whatsoever, save through correspondence directed through his attorneys.

26.8 That the respondents pay the costs of this application on a scale as between attorney and client in accordance with scale B.

M MAKAULA

JUDGE OF THE HIGH

COURT

Appearances

For the Applicant

: Adv Cole SC

Instructed by

: Raymond Simms Inc.

For the Respondent

: Adv Wood

Instructed by:

: Allams Attorneys

Date heard

: 09 May 2024

Judgment delivered

: 01 October 2024