Silver Lakes Home Owners' Association v Placebo Investments 105 (Pty) Ltd and Others (36409/05) [2007] ZAGPHC 357 (7 August 2007)

IN THE HIGH COURT OF SOUTH AFRICA(TRANSVAAL PROVINCIAL DIVISION)

Case Number: 36409/05Date: 07/08/2007

UNREPORTABLEIn the matter between:SILVER LAKES HOME OWNERS' ASSOCIATION ApplicantAndPLACEBO INVESTMENTS 105 (PTY) LTD First RespondentTWOLlNE TRADING 232 (PTY) LTD Second RespondentWILLOW ACRES HOMEOWNERS' ASSOCIATION Third Respondent

JUDGMENT

RD CLAASSEN, J

1. This application concerns an alleged right of way in favour of Applicant ("Silver Lakes 3") along certain public roads controlled by the Kungweni Local Municipality and situated in Third Respondent's property, the Willow Acres Residential Estate. Applicant and Third Respondent are the home owners' associations of the two respective residential estates i.e. Silver Lakes and Willow Acres. The case also specifically concerns Erf 296 of Willow Acres which is specially zoned for a guard house and boom gates as main entrance to Willow Acres and Erf 504 which is part of Willow Acres but still belongs to First Respondent. Erf 504 is situated on the border between Willow Acres and Silver Lakes 3 which in this context would be the dominant property. See the schematic diagram below:

2. The matter has a relatively long history which needs to be set out in some detail.

2.1 Applicant is the home owners' association and representative of the owners of stands in phases 1, 2 and 3 of Silver Lakes Township (residential estate and golf course). 2.2 First Respondent is the developer of Silver Lakes Township; 2.3 Second Respondent is the developer of Willow Acres Township; 2.4 Third Respondent is the home owners' association of Willow Acres Township; 2.5 Willow Acres Township falls within the boundaries and area of jurisdiction of the Kungwini Municipality; 2.6 On or about 12 November 2002 the Applicant and First Respondent concluded a written agreement (Annexure "B" to the founding affidavit) in terms of which Willow Acres Ext. 3 and 4 were incorporated into Silver Lakes Township as Silver Lakes phase 3; 2.7 In terms of the said agreement, the First Respondent was obliged:

2.7.1 Not to allow any contractor under any circumstances to gain access to Silver Lakes phase 3 via the existing Silver Lakes phases 1 and 2; 2.7.2 To construct a contractor's gate for contractors to phase 3 of Silver Lakes and properly manned by security guards, together with certain other facilities not relevant hereto; 2.7.3 To register a servitude over Erf 504, Willow Acres to grant unfettered access to the contractor's gate;

2.8 Every member of the Third Respondent in purchasing his or her respective property from the Second Respondent (Le. in Willow Acres) signed a contract embodying alia, the following clauses: (clause 22.1 to 22.3)

"22.1 purchaser acknowledges that the development will be developed in phases and that the sequence of phases may be changed by the seller from time to time;

22.2 purchaser acknowledges that the development is not fully developed, that building operations will take place upon adjacent or neighbouring sub-divisions or erven and that the said building operations may cause the purchaser certain inconvenience. The purchaser agrees that he shall have no claim either against the seller or against the builder arising out of such building operation;

22.3 purchaser acknowledges that the servitude for access of construction vehicles will be registered over the roads described as George Boulevard, Hoopoe Crescent and Kingfisher Crescent on the annexed diagram for the duration of the development."

(The true meaning and intent of these clauses are hotly in issue between the parties but will be dealt with in due course);

2.9 The constructor's gate was in fact built on Erf 504 by First Respondent and provided with the security gate and boom as provided for in the agreement; 2.10 In terms of this arrangement construction vehicles accessed Silver Lakes 3 via the said route through Willow Acres mentioned in Clause 22.3 quoted above. From the diagrams it is clear that Kingfisher Crescent runs directly into Erf 504 where the access gate to Silver Lakes 3 is situated; 2.11 It is common cause that the servitude over Erf 504 has not yet been registered, however servitudes over the two adjacent properties ie. Erf 420 and 421 have been registered for a right of way, one metre wide along the side adjacent to Erf 504 in favour of Second Respondent for "access of construction vehicles for the duration of the development" (Annexures "F1" and "F2" of the founding affidavit); 2.12 Third Respondent did build and mans a guard house on Erf 296 (refer paragraph 1 above) as it was entitled to do. However, during or about August 2005 or just before that it also erected and manned a guard house in Kingfisher Crescent, right before Erf 504. Third Respondent then started refusing entry to construction vehicles through the construction gate (Erf 504) and later also began refusing entrance to construction vehicles at the main entrance at Erf 296; 2.13 It is common cause and I accept for purposes of this judgment, that during or about August 2005 the construction and installation of "roads, services and infrastructure" within Silver Lakes 3 were completed and only "construction vehicles" involved in building homes and dwellings in Silver Lakes 3 were using that route; 2.14 It is also common cause that since August 2005 all such vehicles were accessing Silver Lakes 3 via Silver Lakes 1 and 2 as the Third Respondent closed off the access via Willow Acres; 2.15 It is common cause that First and Second Respondents support Applicant's application and the grounds therefore.

3. In this case various "rights" of the parties are in issue. They are inter alia :

3.1 Third Respondent's ownership of Erf 296 and the right to man a guard house there. This obviously entails the right to restrict entrance. The extent of such restriction is however in dispute here; 3.2 The Applicant's "right" to use public roads in Willow Acres to gain access to its "construction gate" at Erf 504; 3.3 Applicant's "right of way" along the said route as was agreed upon in the agreement between First Respondent and Applicant and also as acknowledged and allowed by Third Respondent to Silver Lakes 3 construction vehicles until August 2005;

4.

4.1 The first issue raised by Third Respondent is the validity of "C" to the founding affidavit for being in contravention of The Township and Town Planning Ordinance (Transvaal), No. 15 of 1986 due to the fact that it was signed prior to proclamation of the township, and is therefore null and void. It is common cause that all the erven in Willow Acres were so "sold' on one day. Only 109 of the 460 original owners are still in occupation. All erven subsequently sold were not necessarily bound by the same terms as the original purchasers. On that basis Third Respondent says that it is not bound by the terms of "C" and no knowledge of the contents thereof can be imputed to Third Respondent. 4.2 The validity of the contracts takes the issue to my mind no further one way or the other. The fact is that Third Respondent was aware of the terms all along and in fact complied therewith for a period of time.

5. The biggest dispute between the parties revolves around the interpretation of Clause 22 of Annexure "C" quoted above, and more particularly the word "development". Third Respondent argues that on a plain and grammatical interpretation of the word in the context of the contract refers to the in Willow Acres only. On that basis it is argued that the Applicant can obtain no rights from the alleged right of way because it was inserted purely for the benefit of Willow Acres. Applicant however submits that it also applies to other developments surrounding or neighbouring onto Willow Acres such as, and more specifically, Silver Lakes 3. 6. Although all the erven in Willow Acres were sold on one day, it is not evident from the papers when that occurred. It is therefore uncertain whether the contracts (Annexure "C") were signed while Silver Lakes 3 was still known as Willow Acres Ext. 3 and 4 or known as Silver Lakes Ext. 3. Be that as it may the crux of the meaning to my mind lies in Clause 22.2. Obviously the purchaser is buying in Willow Acres itself and therefore "the development" in Clause 22.1 would on the face of it refer to the whole of Willow Acres Development. It must be remembered that Willow Acres itself was also developed in certain phases as it consisted of various extensions. The words "adjacent or neighbouring subdivision or erven" obviously qualifies the word "development" in the first line of Clause 22.2. The question is what that qualification signifies. To my mind on the proper reading of the sentence as a whole, it means that there will be "building operations... upon adjacent or neighbouring (sub-divisions of) developments". 7. Third Respondent strongly argues that the words "neighbouring sub-divisions or erven" clearly refers to such sub-divisions or erven adjacent to the purchaser's property and therefore only to property situated in Willow Acres. In the context of the whole scheme of things this seems to me to be highly improbable. All the erven were bought as empty stands. The whole purpose of the development is obviously for residential purposes. It is therefore axiomatic that construction will take place on adjacent erven and sub-divisions thereof. That is not what is meant by "development in phases". The latter can only refer to townships or extensions thereof in the broader sense, like for example, Silver Lakes 3 or even other extensions in Willow Acres itself. That however is still not the end of the issue. 8. Clause 22.3 was inserted for a specific purpose. That route spelt out in that clause runs slap bang into Erf 504 which was specifically demarcated as the entrance to Silver Lakes 3. Silver Lakes 3 was originally a sub-division of Willow Acres Ext. 3 and 4 and when First and Second Respondents contracted in terms of "B" and "C" to the founding affidavit, it was intended purely and simply to provide access to Lilver Lakes 3. That is also the only meaning that gives sense to the particular route in Clause 22.3. There would be no sense in registering a servitude along that route for building operations in the other parts of Willow Acres, which would not need the use of that road in any event. 9. For those reasons it is clear that the servitude was intended solely for the vehicles going to Silver Lakes 3, not to Willow Acres only, as contended for by Third Respondent. The next question is to decide the meaning of "construction vehicles". Applicant submits that it includes all vehicles used in construction of dwelling houses in Silver Lakes 3, including vehicles used by plumbers, electricians and contractors of that nature. Third Respondent submits it only refers to construction vehicles used in the construction of the "roads, services and infrastructure" in Silver Lakes 3. 10.

10.1 Third Respondent's contentions are based firstly on its analysis and interpretation of the contract itself and secondly, on certain representations said to have been made by Second Respondent's agent at a presentation meeting by Second Respondent for Silver Lakes 3 where Third Respondent's agents were also present. Third Respondent's contentions are set out in paragraph 10.5 of the answering affidavit which reads as follows:

"10.5.1 Construction vehicles referred to in this clause of the agreement only relates to construction vehicles engaged in the construction of roads, services and infrastructure within the Silver Lakes phase 3 .

1.5.2 The gate for access of these construction vehicles would be situated at the place indicated on the diagram annexed hereto as "R3B"....

10.5.3 this gate the construction vehicles constructing the roads and services in Silver Lakes phase 3 gain access to this development.

10.5.4 moment that the roads and services in Silver Lakes phase 3 were completed the gate would be closed. It was specifically stressed that this would be a temporary measure.

10.5.5 This was a construction placed by the Second Respondent on the specific clause and if the Second Respondent now attempts to place a different construction on the clause, it negligently and/or fraudulently misrepresented what it meant or understood under Clause 22.3 Annexure “C".

10.5.6 The Third Respondent will in any event contend that if the wording of Clause 22.3 Annexure "3" given its ordinary and grammatic meaning it is not capable even of this initial interpretation placed upon the clause by the Second Respondent but in fact a much narrower interpretation with whom I will deal below in paragraph 13 (sic). (A confirmatory affidavit of Mr Collin Mohr is attached)."

10.2 As for the contract itself, it refers as already pointed out, to "erven". That means obviously construction of dwellings ie homes. Logically that must then also include all contractors' vehicles including "bakkies", (Third Respondent's choice of word) and other vehicles of all and any contractor. 10.3 As for the representations made by Second Respondent's agents at the presentation meeting, as alleged by Third Respondent, this is vehemently denied by and on behalf of the Applicant and it is not insignificant obviously that First and Second Respondents also support the Applicant's views and contentions. In any event those representations cannot counter the express terms of Annexure "C" to which all purchasers agreed and wherein the purchasers agreed that no variation of the contract or any representation made outside it will be of any force and effect unless put in writing. Since Third Respondent is the representative of the owners and their successors in title, it cannot go beyond the terms of the contract. 10.4 Third Respondent further contends that the gate at erf 504 was used by and constructed for construction vehicles involved in the construction of , services and infrastructure in Willow Acres. This was so because they made use of a quarry situated on Silver Lakes 3 and had to go via erf 504. This may have been the situation on the ground, but that is not what is set out in the contract. Nor does it explain why those vehicles would then only use the route inside Willow Acres. There would be no need for such a servitude or right of way. 10.5 Therefore these contentions of the Third Respondent must fail.

11.

11.1 The last issue is Third Respondent’s “rights” in respect of Erf 296 which controls the main access to Willow Acres and where the said servitude route begins. 11.2 Third Respondent contends that Willow Acres is intended as a “security complex”. It therefore must be able to control the access to the complex. Allowing all kinds of “construction vehicles” onto its property undermines its security. 11.3 Secondly, it contends that Silver Lakes 3 has no cut-off date for the completion of dwellings in the development whereas Willow Acres purchasers needed to build their houses within a two-year period from purchase (It must be remembered that all erven were sold on one day). This then means that Third Respondent must allow access to such vehicles ad infinitum .

12. It is so that Third Respondent is entitled to erect and man a guard house and control the access on Erf 296. There is however no description, definition or circumscription as to what such control entails or might entail: not in the Townships and Town Planning Scheme, nor the special zoning clause, nor anywhere else. Under those circumstances it can only mean that it can only restrict access to unlawful entry or at best for the Third Respondent, entry for no real reason at all. It must be remembered that the roads in Willow Acres are public roads, therefore access must be given to members of the public who have at least a legitimate cause to be there. The fact that such access can only be gained from the privately owned Erf 296, does not preclude such entry. Erf 296 remains an access erf for the public to public roads inside Willow Acres. I can therefore not see how third Respondent can unilaterally restrict access to vehicles (of any kind) that have a legitimate reason for using those roads (over and above any kind of servitude). Under those circumstances the Third Respondent has no right to refuse access to construction vehicles wanting to access Silver Lakes 3 via this route. 13. In the circumstances the application must succeed and an order is granted against Third Respondent only in favour of Applicant in terms of paragraphs 1, 2, 3 and 4 of the notice of motion. R D JUDGE OF THE HIGH COURT