Simply Purple Health Beauty and Accessories and Gifts CC v Fernsby (26377/05) [2006] ZAGPHC 192 (11 May 2006)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

UNREPORTABLE DATE: 11/5/2006

CASE NO: 26377/05

In the matter between:

SIMPLY PURPLE HEALTH BEAUTY

AND ACCESSORIES AND GIFTS CC Applicant

and

ARTHUR NIGEL FERNSBY Respondent

________________________________________________________________

JUDGEMENT

MURPHY J

1. This matter concerns a dispute between neighbours regarding the use of and rights of access to two adjoining properties.

2. The applicant is the owner of an agricultural smallholding next to the Hennopsriver, namely portion 71 of the farm Hennopsriver 489 J.Q. The members of the applicant are Ms Kathleen Joseph and her daughter Ms Jessica Schiemann. The applicant purchased the property in July 2004 with the view to building residential units for Ms Joseph and her daughter.

3. The respondent is the applicant’s neighbour. He is the owner and resides at portion 195 of the farm Hennopsriver 489 J.Q. The respondent’s property comprises a consolidation of portions 69 and 137 of the farm, which consolidation occurred in 2001 by way of title deed 146984/2001.

4. The applicant’s property is surrounded on all sides by that of her neighbours. The respondent’s property lies to the north and east of it, while to the south and the west lies the property of Mr Jan Sterk, who is not a party to these proceedings.

5. Access to the applicant’s property is gained by means of a road on the boundary between the respondent and Sterk’s property which runs perpendicular from a large public road south of Sterk and the respondent’s properties, known as School road. The applicant’s property is rectangular shaped, except at the most south-eastern corner where it forms a lip. This is the point where the access road leading up from School road reaches the property and where the properties of the applicant, the respondent and Sterk all meet. The principal dispute between the parties relates to this piece of land.

6. The respondent since acquiring the land has always gained access to his property via a road running along the southern boundary of Sterk’s property which turns north, traversing Sterk’s property and then crosses the lip on the applicant’s property. He avers that he has always used this route and to the best of his knowledge the entrance to his property has been used by previous owners of the property for almost a hundred years.

7. The respondent’s home is situated just east of the lip and therefore it is most convenient for him to use the gate on the lip. The respondent is able also to gain access to his yard via an entry point on the eastern side of his property, but some distance away. It would also be possible for him to construct an entrance to his property on School road or further south on the access road.

8. Not long after the applicant purchased the property Joseph and the respondent concluded an agreement in terms of which she granted the respondent a right of way over a portion of the applicant’s property. The agreement was reduced to writing and reads as follows:

“MEMORANDUM OF AGREEMENT

Entered into between

Kathleen Millichip Joseph

And

Arthur Nigel Fernsby

It is hereby recorded that Kathleen Millichip Joseph will allow a right of way to be established along the Eastern Boundary of portion 71 Hennopsriver 489 for residential use only, to benefit portions 46, 52, 69, 137 and 203 Hennopsriver 489 J.Q.

Furthermore, Arthur Nigel Fernsby undertakes to be supportive of any application that may be lodged by Kathleen Millichip Joseph for the approval of building plans for cottages in addition to her main dwelling, to be erected on portion 71 Hennopsriver 489 J.Q.”

9. There is a dispute about the exact ambit and purpose of this agreement. The respondent, it seems, intended to acquire an additional right of way, north of the lip along the eastern boundary of the applicant’s property. The applicant, on the other hand, seems to believe that the agreement related to the respondent’s access to his property via the lip. From the respondent’s point of view when the applicant purchased the property it was aware of the fact that he gained access via the road running along the southern boundary of Sterk’s property and which then moved northwards across the lip. As indicated, it is the respondent’s case that this access to the property has been in use for about a hundred years. Thus, in his view, there was no need for him to conclude an agreement with the applicant in order to establish a right of way along this route. The right of way he sought to bring into existence by the agreement, he claims, was in respect of the property to the north of the lip. He was keen to establish the right of way because he knew that the owners of the property to the north and east of him would otherwise have to traverse his property to the south of his residence along a registered right of way which extended from Sterk’s property onto his. He considered it more desirable for a new access road, or right of way, rather to traverse the boundary of his and the applicant’s property leading northward, especially given that he understood the applicant had no intention of developing the eastern side of her property. The parties, as it appears from the agreement, further agreed that such right of way would be for residential purposes only.

10. The applicant, as I have intimated, contends to the contrary that it understood the right of way related to or at least incorporated the lip and the respondent’s point of access. Some doubt is cast upon its version by the fact that the applicant erected a fence inside its property to the west of the proposed right of way. Joseph however has alleged that the respondent initially misrepresented to her the exact boundaries of the property, by telling her that the part of the lip at the point of access to his yard was in fact on his property. Hence, she understood that the right of way would extend not only to the road to the north of the lip, but included the lip.

11. For a variety of reasons which I do not propose to canvass, the relationship between Joseph and the respondent soured significantly shortly after the applicant purchased the property. Of principal concern to Joseph and her daughter is the fact that the respondent runs two businesses on his property: a bat house in which he breeds bats and a so called “spaza” or tuck shop from which he sells basic groceries to local inhabitants. The applicant feels the latter activity in particular poses a security risk to a single woman living in a rural area and is aggrieved by customers of the spaza traversing her property. Joseph further maintains that these activities are illegal. In her replying affidavit she makes reference to and annexes a notice from the local authority directing the respondent to discontinue operating the spaza and the bat houses. Being annexed to the replying affidavit, the respondent has not had a proper opportunity to deal with the notice in evidence.

12. As the dispute between the parties escalated, the applicant erected a pallisade fence across the entrance to the respondent’s property on 31 May 2005. A few days later, on 2 June 2005, she replaced this with an electric fence. After obtaining legal advice the respondent cut through the electric fence. The applicant erected it again and the respondent again cut through it. The applicant then laid criminal charges against the respondent for malicious damage to property. The applicant it seems was also responsible for involving the local authorities. In her opinion the restrictions in the applicable title deed limit use of the land to residential and agricultural purposes and specifically prohibit the operation of any shop, business or industry. And, it would seem, the local authority may agree with her, though the basis of its assertion that the activities are illegal is not entirely clear. The respondent contends that the restrictions apply only to one portion of the consolidated land and not to that part where the bat house and the tuck shop are located.

13. After ongoing skirmishes of one kind or another, matters came to a head with the applicant launching these proceedings. The application initially served before the court as an urgent application. However, on 11 August 2005 it was struck from the roll with costs for want of urgency. The matter was then enrolled before me on 15 February 2006.

14. The extensive relief sought by the applicant is set out in paragraphs 2-6 of the Notice of Motion as follows:

“2. Directing that the memorandum of agreement concluded between the applicant and the respondent on 20 August 2004 (a copy of which is annexure “KMJ5” to the founding affidavit), in terms of which a right of way was established along the eastern boundary of Portion 71 (a Portion of Portion 70) of the Farm Hennopsrivier 489 J.Q., Gauteng (“the property”), has been validly cancelled.

3. Interdicting and prohibiting the respondent from allowing patrons of the spaza shop, which the respondent is operating on Portion 137 of the Farm Hennopsrivier 489 J.Q., Gauteng, from making use of the right of way and/or or traversing over the property in order to access the spaza shop.

4. Interdicting and prohibiting the respondent from interfering with and/or preventing the applicant from erecting electric and/or any other fencing along the boundaries of the property.

5. That in the event of the respondent:

5.1 failing to prevent patrons of the spaza shop from making use of the right of way and/or traversing over the property in order to access the spaza shop; and/or

5.2 interfering with and/or preventing the applicant from erecting electric and/or any other fencing along the boundaries of the property,

that the respondent be interdicted and prohibited from operating the spaza shop.

6. Costs of the application.”

15. As regards the claim for cancellation, the applicant contends that the respondent is in breach of the agreement in that he has allowed the right of way to be used for commercial purposes, when it was clearly stated that it would be used for residential purposes only. Josephs has averred that the respondent’s spaza customers often congregate on her property and this is of concern to her. As mentioned earlier, the respondent is of the view that the agreement is not of application to the lip area but relates to an area further north and that he is accordingly not in breach of the agreement in that his customers have not used that area to gain access to the spaza shop. There has also been some suggestion on the part of the applicant that the northern-area is also being used by customers. These disputes of fact, it would seem to me, cannot be resolved on the papers and require further evidence to determine the purpose, extent and reach of the agreement and also whether the respondent is in fact in breach of contract.

16. With regard to prayer 3 of the Notice of Motion, Mr Wesley, who appeared for the respondent, argued that the executory part of the relief is incompetent in that it seeks to force the respondent to prevent a potentially unlimited number of unknown people from trespassing on the applicant’s property. He argued that the respondent has no means of identifying such people or any means of exercising control over them. As he put it, the effect of this prayer would be that the respondent would be ordered to prevent the world at large from invading the applicant’s property. So put, the submission is guilty of overstatement. While it is true that the prayer might have been better formulated, the fact of the matter remains that if the access to the respondent’s yard is indeed on the applicant’s property and there is no established right of way to it, an order preventing the applicant from allowing access to his property through that point would be effective and could be given effect to by other ancillary orders either removing the tuck shop or requiring the construction of a different point of access to it.

17. Nevertheless, it would seem to me that whether or not the applicant is entitled to such relief, depends upon whether the respondent’s access to his property is lawful or not. This too raises a dispute of fact about whether or not a right of way has been acquired through prescription. The respondent has put up an affidavit by a previous resident who lived on the property prior to 1948 who has deposed that the right of way was in use before that time. Considering that the applicant is seeking final relief, this evidence alone casts doubt about whether she has a clear right and a proper basis for final interdictory relief. This requires further evidence to determine whether the unregistered servitude is enforceable either through prescription or the applicant having knowledge of its existence at the time she purchased the property. Aerial photographs, survey diagrams and the like are needed to ascertain the period for which the right of way has been in use.

18. The relief sought in prayer 4 seeks to prevent the respondent from interfering with or preventing the applicant from erecting electric or other fences along the boundaries of the property. The contents of this prayer, so Mr Wesley submitted, represent that the respondent is interfering with or preventing the applicant from erecting fencing along the entire boundary of the applicant’s property. This is clearly not what is in dispute. The actual subject of the dispute relates to a smaller portion of one boundary of the applicant’s property, which portion serves as the entrance to the respondent’s property.

19. The relief sought regarding the spaza shop is also problematic. It is predicated upon the applicant establishing either that the respondent’s use of the point of access to his yard is unlawful or alternatively that the running of the spaza shop itself is unlawful. As already discussed, the matter of access to the yard requires additional evidence before it can be determined. Similarly, whether or not the business of the spaza shop is unlawful and in contravention of local authority or provincial regulations, or contrary to the restrictions in the title deed, is also a matter of some dispute which will also require additional evidence for determination. In particular it must be established whether the restriction in the title deed of a portion of the property applies to the entire consolidated property, and whether the local authority’s notice to the respondent to cease business is in fact predicated upon its enforcement of the restriction in the title deed or some other law or regulation.

20. The respondent has also made reference to section 1 of the Road Ordinance 22 of 1957. In terms of section 4 of the Ordinance all public roads within the province are under the control of the Administrator. Section 5 provides that the Administrator may open, close or deviate roads and section 37(1) of the Ordinance provides that any person who closes a public road shall be guilty of an offence. A public road is defined to mean any road, however created, which has been in the undisputed use of the public during a continuous period of not less than fifteen years. The respondent submits that the portion of the applicant’s property which lies to the south-eastern corner, immediately adjacent to the entrance to the respondent’s property, is a public road and this road has been in use for more than fifteen years. Hence, it is submitted, that the applicant is seeking the court’s sanction for the closure of a public road contrary to the terms of the Ordinance. These submissions too, to my mind, give rise to disputes of fact, in particular about whether or not the road has been in the undisputed use of the public, and if so whether

that has been the case over a continuous period of not less than fifteen years. Further oral and expert evidence may be required in such regard too.

21. In the premises, I am not persuaded that the applicant is entitled to final relief, because the facts upon which she basis her claim to a clear right are quite evidently in dispute and cannot be resolved upon the papers. Nor, do I believe, is she is entitled to interim relief in accordance with paragraphs 3 and 5 of the Notice of Motion pending the outcome of a decision in respect of paragraph 4. The terms of the title deed raise doubt about whether the business activities are illegal and hence there is no basis to interdict the respondent, especially in view of the prejudice he would suffer through the loss of his business and the balance of convenience accordingly being in his favour.

22. The most appropriate order in this instance is to refer the matter to trial and for costs to be reserved for determination by the trial court.

23. In the premises, I make the following orders:

a). The matter is referred to trial.

b). The applicant’s notice of motion and founding affidavit will stand as a simple summons.

c). The applicant shall file a declaration within 21 days of the date hereof.

d). The respondent shall file a plea thereafter within the period stipulated by the rules.

e) Costs are reserved for decision by the trial court.

J MURPHY

JUDGE OF THE HIGH COURT

Counsel for the applicant, Adv HS Havenga, Pretoria and counsel for the respondent, Adv CP Wesley, Pretoria

Attorney for the applicant, JJ Mendelsohn, Johannesburg and attorney for the respondent, Louw Attorneys, Pretoria.