Van Rensburg NO and Another v Equus Training and Consulting CC and Another (3649/06 & 1440/07) [2009] ZAECPEHC 50 (25 September 2009)

FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISIONJUDGMENT

PARTIES: Wilma Emmerentia van Rensburg N.O vs Equus Training and Consulting

Case Number:

1440/07

High Court:

Eastern Cape Division

DATE HEARD:

25/09/09

DATE DELIVERED: 20/10/09

JUDGE(S): Froneman J

LEGAL REPRESENTATIVES –

Appearances:

for the Applicant(s): Adv Eksteen and Adv Euijen

for the Respondent(s): Adv van der Linde and

Huissamen

Instructing attorneys:

for the Applicant(s): De Villiers and Partners

for the Respondent(s): Greyvenstein, Rushmere Inc

CASE INFORMATION –

Nature of proceedings.

Topic:

Key Words:

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE – PORT ELIZABETH Case Nos: 3649/06 & 1440/07

In the matter between

WILMA EMMERENTIA VAN RENSBURG NO First Applicant

PHILIPPUS STEPHANUS VAN RENSBURG Second Applicant

and

EQUUS TRAINING AND CONSULTING CC First Respondent

NELSON MANDELA METROPOLITAN

MUNICIPALITY Second Respondent

-------------------------------------------------------------------------------------------------------

JUDGMENT

Froneman J.

[1] This judgment deals with two separate applications, but the two matters are interrelated and concern similar issues. The issues arise from the existence of restrictive title conditions registered against the first respondent’s property (‘the neighbouring property’) and some 71 other properties in a designated block in Summerstrand, Port Elizabeth. The applicants sought different relief in the two applications. For the sake of convenience I will refer to the first as the ‘interdict proceedings’,1 and to the second as the ‘demolition proceedings’2.

[2] Both the interdict proceedings and the demolition proceedings were brought on the basis of transgressions of the restrictive title conditions, albeit different in nature in respect of each instance. The interdict proceedings were postponed sine die when the first respondent gave an undertaking that it would cease its unlawful construction pending the finalisation of an application by it for the removal of the restrictive title deed conditions in terms of the Removal of Restrictive Conditions Act 84 of 1967 (‘the Removal Act’). The first respondent was ordered to launch the ‘said application’ within 60 days of the court order, failing which the applicants had to set the interdict proceedings down again for hearing. The initial demolition proceedings resulted in the setting aside of the second respondent’s approval of building plans and a finding that the construction of the enlarged dwelling on the neighbouring property infringed the restrictive title conditions. The demolition order sought in those proceedings stood over for determination until the outcome of ‘the application for the removal of the restrictive title conditions’ was made known to the respondents.

[3] The applicants contend that the applications for the removal of the restrictive title conditions have been finalised and thus now seek an interdict in the one case and a demolition order in the other. The first respondent contends that what was envisaged in both proceedings was finalisation on the substantive merits of the removal applications and not rejection of the applications on procedural issues, as has been the case.

[4] I do not intend to deal with the submissions of the first respondent in any detail. In my judgment it is abundantly clear that the removal applications contemplated in both sets of proceedings have been unsuccessful in one way or another. The fact that further applications under the Removal Act are in the pipeline may be a factor in considering whether to grant the relief sought for by the applicants or not, but it is certainly no bar to the applicants setting the matters down for determination as envisaged under the earlier court orders.

The interdict proceedings

[5] What was originally sought by the applicants was an interdict to prevent the first respondent from building over the building line adjacent to the street frontage of the neighbouring property, as well as for an order to demolish the structures already built which encroached over the building line. It is clear that the first respondent indeed built in contravention of the restrictive title condition. It is also clear that the ultimate purpose of the construction was to enable the first respondent to conduct a guesthouse on the property.

[6] The first respondent opposes the orders sought to be confirmed by appealing to the discretion the court has to refuse an interdict. In this regard reference was made to the fact that the first respondent had obtained special consent to operate a guesthouse; that other guesthouses were being operated in the area too; and that removal of the restrictive conditions may yet eventuate. A court does not have a general discretion to suspend the operation of an interdict where the conduct complained of is established as unlawful. Such discretion can only arise under exceptional circumstances (United Technical Equipment Co v Johannesburg City Council 1987(4) SA 347 (T) at 347G). In my judgment no such exceptional circumstances exist here. The first respondent has consistently, over an extended period of time, sought to advance its own interest in operating a guesthouse without any proper regard to the fact that it was doing so unlawfully until it had successfully applied for the removal of the restrictive title conditions (Enslin v Vereeniging Town Council 1976(3) SA 443 (T)). In my judgment it would undermine the court’s role as “enforcer of the law” (see United Technical Equipment, above, at 347 G-H), if someone could use its own extended unlawful course of conduct and the consequences thereof, such as the construction and cost of completed work, as a reason why the law should not take its ordinary course (cf. Enslin, above, at 452H). This goes for the demolition part of the order as well, as I will presently indicate in relation to the other

application.

The demolition proceedings

[7] In an earlier matter, Van Rensburg and another NNO v NMMM and others 2008(2) SA 8 (E), I granted a demolition order in circumstances where the owner of the offending buildings had continued with its unlawful conduct. In that case I also held that a claim for damages could not properly compensate the applicants for the loss of privacy and use of their property in accordance with the intended character of the area, as evidenced by the content of the restrictive conditions. Similar considerations arise in the present matters. I am unable to discern any material differentiating features or circumstances which would justify a different approach in the present matters insofar as the grant of demolition orders are concerned.

Striking out applications

[8] In view of the conclusion I have come to I consider it unnecessary to give any specific relief in relation to the applications for striking out. It should be apparent from what I have already stated that I consider much of the allegations about, for example, the use by others of guesthouses, the approval of other removal applications and the present character of the area, as inconclusive or irrelevant. No material prejudice to the applicants would follow from not striking these allegations.

Order

[9] It is ordered that:

1. In case no. 3649/2006

1.1 The first respondent is interdicted from continuing with any building activities on erf 102, Summerstrand, that encroach over the building line adjacent to the street frontage of the erf (which is stipulated in the title deed of the erf as being not closer than 30 cape foot (9,45 metres) to such street frontage);

1.2 The first respondent demolish all structures erected on erf 102, Summerstrand, which so encroach over the said building line;

1.3 The first respondent is ordered to pay the costs of the application, such costs to include the costs of two counsel.

2. In case no. 1440/2007

2.1 The respondents take all necessary steps to demolish the buildings which were erected on erf 102, Summerstrand, in accordance with plans approved by the second respondent on 23 February 2007;

2.2 The first respondent is ordered to pat the costs of the application, such costs to include the costs of two counsel.

J.C.Froneman

Judge of the High Court.

1 Case No. 3649/06.

2 Case No. 1440/07.