IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Case Nr: 4245/2004
In the matter between:
WATERHOUSE PROPERTIES CC
MOORE, JEAN-MARIE DENIS MAURICE
MOORE, JUANITA CATHERINE
First Applicant
Second Applicant
Third Applicant
and
HYPERCEPTION PROPERTIES 572 CC
METSIMAHOLO LOCAL MUNICIPALITY
RAND WATER
First Respondent
Second Respondent
Third Respondent
HEARD ON:
26 AUGUST 2004
JUDGMENT:
RAMPAI J
DELIVERED ON:
28 OCTOBER 2004
[1]
The matter came to this court by way of motion proceedings
in the form of an ordinary application. The proceedings were
initiated on 15 December 2003.
It was first enrolled for
hearing on 18 March 2004. However it was postponed sine
die.
The respondents delivered the answering affidavit
subsequent to the postponement. The applicants delivered
2
their replying affidavits afterwards.
Then the respondents
delivered a supplementary affidavit. The record was indexed
on 15 July 2004. The matter was then ripe for adjudication.
It was again placed on the roll of Thursday 22 July 2004. It
was argued before me by Mr. T. van der Walt on behalf of
the applicants and Mr A.F. Jordaan S.C. with him Mr. S.
Guldenpfenning on behalf of the respondents but had to be
postponed. The postponement was due to the lateness of
the hour. The matter was finally argued on 26 August 2004.
I reserved judgment.
[2]
The three applicants comprise a close corporation and its
two members.
The first applicant is a close corporation
which owns a certain river front property in Barrage on the
bank of the Vaal River on the Free State side thereof known
as Portion 3 Farm Goedehoop 272 Parys in the Free State
Province. The second applicant and the third applicant are
husband and wife and are the only two members of the close
corporation.
Although the first applicant is the de iure
registered owner of the property, the property is de facto
used and enjoyed by the second and the third applicants as
a family.
The family exercises the de facto rights of
3
ownership, use and enjoyment in respect of the river front
property. That being the case, the couple has to be seen not
only as de facto users of the river front property but also as
de iure co-owners thereof for the purposes of these
proceedings. (vide GIEN v GIEN 1979 (2) SA 1113 (TPD) at
1120 A – C per Spoelstra AJ)
[3]
The first respondent is currently a private company but was
previously a close corporation.
Like the first applicant it
owns a river front property in the same area of the Barrage
and on the same side of the Vaal River Complex, Portion 2
of Bersheba Farm at Parys in the Free State Province. A
certain mr. J.W. Mayer is the director of the first respondent.
The first respondent’s river front property borders to the
south east on another river front property owned by the
applicants. The first respondent has erected a shelter over a
jetty on the waterfront of his property. The relief sought by
the applicants is in essence a final interdict aimed at the
removal of the thatch roof structure erected over the jetty on
the property belonging to the first respondent.
The
applicants do not seek to have the first respondent’s jetty
demolished or removed. It is its thatch roof, and not the jetty
4
itself, that forms the subject matter of the present dispute
between the property owners.
The applicants own the
property adjacent to that of the first respondent. In fact the
real driving forces behind this whole dispute are Mr. Moore, a
member of the first applicant and his spouse on the one
hand, versus Mr. Mayer, a director of the first respondent
and his spouse, on the other hand. In short it is a dispute
between the two neighbours.
[4]
The second respondent is Metsimaholo Local Municipality,
the local authority responsible for the area concerned where
the two neighbouring properties are situated.
The relief
sought against the second respondent by the applicants is
that the second respondent should be ordered to take certain
legal steps in order to have the thatch roof structure
demolished and removed and also that the second
respondent should be ordered to approve no building plans
submitted to it in respect of the same structure or to withdraw
such an approval if already granted. The second respondent
is not participating in these proceedings. As a matter of fact
the second respondent has indicated that it had no intention
5
of opposing the matter and that it would abide the decision of
the court.
[5]
The third respondent is the Rand Water, the statutory
custodian of the river water in the area concerned. There is
no relief sought by the applicants against the third
respondent. The third respondent has adopted a passive
attitude towards the dispute. Therefore the third respondent
is not participating in these proceedings.
[6]
The
applicants
purchased
their
river
front
property
approximately 13 years ago during 1991 to be precise.
Approximately 12 years later, during 2003 slightly more than
one
year
ago
the
first
respondent
purchased
the
neighbouring river front property on the south western side of
the applicant’s property.
[7]
The relief sought is the demolition and the removal of a
structure over the jetty which structure the applicants
consider offensive. The primary basis of the relief according
to the applicant is that the structure constitutes a common
law nuisance. The essence of common law nuisance lies in
6
the maxim sic utere tuo aliennum non laedas – which means
use your own property in such a manner as not to injure that
of another. The secondary basis of the relief according to
the applicant is that the structure constitutes a statutory law
violation.
(vide section 4(1) National Building Regulations
and Building Standards, Act nr. 103 of 1997.)
[8]
The structurer complained of cannot, according to the first
respondent
contention,
be
regarded
as
offensive
or
objectively unreasonable interference either on the primary
basis that it constitutes a common law nuisance or on the
secondary basis that it constitutes a statutory law illegality.
The defence of the first respondent is that the applicants
have failed to establish any of the three requisites for the
grant of a final interdict.
[9]
I deal first with the applicant’s primary leg of the objection,
namely the common law nuisance. In these proceedings, it
is not the applicant’s case that every landowner, per se, has
a right to a view. The main foundation of the applicant’s
case is that their neighbour, in other words the first
respondent uses his own property in a manner which
7
unreasonably interferes with their ordinary use, comfort,
convenience and enjoyment of their own property.
It is
therefore their case that they are entitled to the protection by
the law against their neighbour’s objectively unreasonable
interference. They assert that any objective member of the
particular community we are here concerned with who is
placed in the position of the applicants would find the
conduct of a neighbouring landowner in the position of the
first respondent objectionable and unreasonable on the
grounds that it adversely impacts on the quality of their life.
(vide LAWSA Vol. 27, First Re-issue par. 303.)
[10] The general principle which governs the neighbour relations
was laid down in the case of REGAL v AFRICAN
SUPERSLATE (PTY) LTD 1963 (1) SA 102 (AD) at 106 H –
107 A. where Steyn CJ said:
“In hoofsaak het ons hier te doen met wat buurreg genome kan
word.
As algemene beginsel kan iedereen met sy eiendom
doen wat hy wil, al strek dit tot nadeel of misnoeë van ‘n ander,
maar by aangrensende vasgoed spreek dit haas vanself dat
daar minder ruimte is vir onbeperkte regsuitoefening. Die reg
8
moet ‘n reeling voorsien vir die botsende eiendoms- en
genotsbelange van bure, en hy doen dit deur eiendomsregte te
beperk en aan die eienaars teenoor mekaar verpligtings op te
lê.”
[11] The aforegoing passage was refined and elucidated by
Spoelstra AJ in the case of GIEN v GIEN 1979 (2) SA 1113
(TPD) at 1121 A – C:
“Waar die onbeperkte bevoegdheid van een eienaar om ‘n saak
te gebruik en die bevoegdheid van ‘n ander eienaar om
onbelemmerde genot van sy saak te hê, met mekaar in botsing
kom, word die regte beperk, soos Hoofregter Steyn dit stel, deur
wedersydse
verpligtinge
op
te
lê.
‘n
Eienaar
se
eiendomsbevoegdhede strek dan, soos ek die uitspraak
verstaan, slegs sover as wat daar ‘n verpligting op sy buurman
rus om die uitoefening van daardie bevoegdheid te verduur. Dit
bring ‘n verpligting vir die een eienaar mee om sy reg so uit te
oefen dat hy nie daardie perk oorskry nie. Word dit oorskry, tree
hy nie meer op ingevolge die bevoegdhede wat sy reg aan hom
verleen nie en maak hy inbreuk op die reg van sy buurman. Dit
is onregmatige optrede wat die reg nie duld nie en wat die
grondslag vir ‘n interdik kan vorm.”
9
[12] What emerges from the two quotations is that the law
creates certain obligatory legal norms in order to regulate the
relations between neighbours.
crystal dimensions.
The proposition has two
The first dimension is that the land
owner has by virtue of the most comprehensive right, the
right of ownership, the general freedom to fully exercise his
real right in respect of his landed property. The radius of
such legal exercise is generally limitless.
The second
dimension is that the other neighbouring landowner also has,
by virtue of her real right of ownership, the most
comprehensive of all the rights, the general freedom to fully
enjoy her real right in respect of her fixed property.
[13] The law imposes a duty on the second neighbour to tolerate
and to endure to a certain extent the first neighbour’s
reasonable exercise of his ownership powers or rights. Such
an obligatory legal norm primarily limits the second
neighbour’s right to the full enjoyment of her property. The
law also imposes a duty on the first neighbour to exercise his
powers
within
the
normal
and
acceptable
limits
of
reasonableness. Such an obligatory legal norm restricts the
first neighbour’s right to the full exercise of his powers and
10
rights of ownership or the exploitation of his property. It is
impermissible to exceed the obligatory legal norms. They
are designed to harmonise neighbour relations.
[14] When a landowner crosses the dividing line, he exceeds the
regulatory demarcation of tolerance. He oversteps the mark.
He breaches the norm of healthy neighbourliness.
He
exceeds the legal limit of reasonable exercise of his
ownership rights.
Beyond such a boundary his conduct
becomes an unreasonable interference. Our neighbour law
forbids it. In this sphere there can be no reasonable exercise
of rights. Here we have nothing else but interfering conduct
which closely borders on an abuse of rights.
The
landowner’s conduct which causes intolerable annoyance
and discomfort in this way to his neighbour is a nuisance.
Our neighbour law tells us that it is actionable.
The law
between neighbours is inspired by considerations of fairness
and equity in order to promote tolerant neighbourliness.
[15] The applicants are inviting me to apply the test applicable to
the common law of nuisance to the facts in casu and to find
that the first respondent’s conduct constitutes an objectively
11
unreasonable annoyance or inconvenience which is greater
than a normal person can be expected to endure in a normal
contact with his fellow men or women – in other words an
annoyance which is plus quam tolerabile. (vide PRINSLOO
v SHAW 1938 (AD) 570 on 575 per De Wet JA.)
[16] Not all forms of nuisance are actionable.
Whether a
nuisance is actionable or not is a matter of degree.
An
actionable nuisance occurs whenever there is a consistent
and substantial interference with the psychological well-being
of a human being. (vide LAWSA: Vol. 27, First Re-issue
p. 227 par 303.) Actionable nuisance occurs with or without
the causation of actual patrimonial damage to one neighbour
by another. (vide VOGEL v CREWE AND ANOTHER 2003
(4) SA 509 (TPD) at 511 G – 512 A. per De Vos J) One
neighbour’s conduct on his own private land which is not only
in keeping with the norm but also impairs or infringes the
substance of another neighbour’s normal use, enjoyment
comfort,
health
and
general
welfare
which
matters
collectively constitute ordinary convenience in keeping with
the norm, may be regarded as nuisance.
12
[17] The test for an actionable interference by one property owner
on the normal use, normal enjoyment and ordinary
convenience of a neighbour’s property by its owner is that of
objective unreasonableness. The basic enquiry is whether
the actions of the property owner in the particular
circumstances were proper, befitting and socially adequate in
the light of the convictions of the society – secundum bonos
mores (vide REGAL v AFRICAN SUPERSLATE (PTY) LTD
1963 (1) SA 102 (AD) on p. 112, per Steyn CJ, 114, per
Hoexter JA, 116 and 117 per Ogilvie Thompson JA as
well as CG van der Merwe:
Sakereg, Second Edition
1991.)
[18] The authors Silberberg & Schoeman in their work “The Law
of Property”, fourth edition, p. 110 give a lucid exposition of
the basic test as follows:
“In each and every case it is a question of fact and often a
matter of degree whether the state of affairs resulting from such
activities is sufficiently serious so as to constitute an actionable
wrong. The test applied is one of reasonableness, the question
being whether a normal person, finding him or herself in the
13
position of the plaintiff, would have tolerated the interference
concerned. In order to ascertain whether a landowner’s conduct
is objectively reasonable various factors, including the situation
of the land, for example whether it is situated in a residential or
industrial area, and the type of people who inhabit it have to be
taken into account.”
[19] There are two distinct elements to the test. In the first place,
the objective test has to be applied to the specific facts and
in the light of the prevailing circumstances of each particular
case. It must constantly be borne in mind since what would
constitute objective unreasonableness in one instance would
not necessarily constitute objective unreasonableness in
another instance. (vide VOGEL v CREWE AND ANOTHER
2003 (4) SA 509 (TPD) on p. 512 par. 4 per De Vos J.)
In the second place the objective test has its very foundation
the concept of reasonableness.
The yardstick used to
measure whether the conduct of the neighbouring property
owner is seriously offensive and therefore substantially
invasive is the standard of a normal and neutral individual
who lives in the same particular neighbourhood as the
14
litigant. If such an insider would regard a particular situation
created by the respondent as certainly offensive and
continuously irritating, then the conduct complained of, in
other words the gravity of the invasion is substantial. (Vide
VOGEL v CREWE AND ANOTHER 2003 (4) SA 509 (TPD)
on p. 512 at par. 3 per De Vos J.) This is so because the
law relating to neighbour relations in general and the law of
nuisance in particular has, as its primary aim, to create an
equitable balance between the competing interests of the
neighbouring
property owners in accordance with the
acceptable norms of the particular society. (Vide REGAL v
AFRICAN SUPERSLATE (PTY) LTD 1963 (1) SA 102 (AD)
at 107 A per Steyn CJ.)
[20] The principal submission of Mr. van der Walt, counsel for the
applicant, is that the applicants have made out a sound case
for the relief sought. He therefore urged me to grant them a
final interdict authorising the demolition and the removal of
the thatch roof structure over the jetty on the river front
property belonging to the first respondent. But Mr. Jordaan,
counsel for the first respondent, on the other hand, made the
principal submission that the applicants had failed to make
15
out a case for the relief sought. Therefore he urged me to
refuse the final interdict to have the said structure
demolished and removed.
[21] The requisite of a final interdict were set out by Innes J in
SETLOGELO v SETLOGELO 1914 (AD). I intend following
that approach. See also WELKOM BOTTLING COMPANY
(PTY) LTD & ‘n ANDER v BELFAST MINERAL WATERS
(OFS) (PTY) LTD
1967 (3) SA 45 (OPD) at 56D per
Erasmus J and FREE STATE GOLD AREAS LTD v
MERRIESPRUIT (OFS) GOLD MINING CO LTD AND
ANOTHER 1961 (2) SA 505 (WLD) on 524 per Williamson
J.
[22] In the first place the applicants have to show on a balance of
probability that they have a clear right which entitles them to
the relief they seek. It is imperative, in evaluating this first
requisite to consider not only the nature of the neighbouring
property, but also the nature of their geographical setting as
well as the particular society which inhabits such a particular
locality.
16
[23] The two neighbouring pieces of land are large properties with
unique features.
The applicant’s property is almost 6,5
hectares in extent and that of the first respondent is even
larger, approximately 8,0 hectares.
These properties and
others in the area are owned as second properties. They
were acquired and developed purely for recreational
purposes over the weekends and holidays. They are river
front properties.
These properties are rare commodities,
especially those on the Free State side of the river where
both properties under discussion are situated because as I
am made to understand the Gauteng side of the river is fully
developed. They are exclusive and expensive properties.
[24] The Vaal River Barrage or the Vaal River Complex is the
location of the properties we are talking about. The river
front properties in this area are more sought after than the
river front properties elsewhere because the particular
stretch of the river is regarded as free of water plants,
pollutants and other obstacles. The water level is artificially
controlled rendering the area relatively free of flooding. The
area is not vulnerable to the strong winds. All these features
make the area an ideal spot for water sports activities. The
17
area is a private and not a public amenity. The plantlife,
waterlife, wildlife and birdlife as well as wetlands are bound
in the area. There are comprehensive nature conservation
programmes and boating regulation programmes in place.
The statutory custodian of the prime, exclusive and scenic
location is Rand Water, the third respondent. The area is a
truly rich man’s playground. It has to be seen for what it is.
[25] The majority of the properties in the exclusive area are
owned by affluent individuals and corporate entities. Such
property owners live elsewhere where they own residential
properties.
They seasonally travel to their river front
properties to recreate.
To most people in our country
recreational properties on the splendid river banks are
trappings of opulence which they can only dream of.
[26] The photographic evidence presented by the applicants and
the first respondent shows that the applicant’s house is a
creation of intriguing and unusual architectural design and
construction. It is partly constructed on concrete columns
over the river. In other words part of the house extends over
the river bank right into the river which gives the house its
18
distinctive individualism or characteristic uniqueness.
The
second applicant describes the feeling he gets by being
inside this house as comparable to the experience of living
on a boat.
The applicant purchased the unique property
more than a decade ago because of its unique design and
construction.
It had a 180 degree view of the river from
downstream in the southwest right across to the extreme in
the southeast. The scenic view was possible from inside the
living room as well as from the patio.
[27] Having purchased the property the applicants effected
certain improvements to enhance the view from within the
living room area and the patio in the southwestern direction,
in other words, downstream. The improvements included the
enlarging of the existing window in the south western wall of
the living room and constructing an oval opening in the south
western wall of the patio.
These improvements gave the
river house an added benefit of enjoying the sunset over the
river and an extended or broadened view of the scenic
horizon.
19
[28] So much about the exclusive area, its opulent society and
luxurious priceless properties. These then are the prevailing
circumstances of this particular case. The area is indeed
unique and exclusive. The particular locality was developed
for the purpose of relaxation in an atmosphere where the
unimpeded tranquil and peaceful enjoyment of those peculiar
attributes that made the area unique by the particular society
inhabiting the area is the supreme norm.
The main and
attractive feature of the area is certainly the Vaal River. It is
the soul of everything there. Had in not been for the beauty
of the river, the society would probably never have existed.
The use and enjoyment of this specific part of the river in all
its facets with all its qualities is at the centre of what really
defines the character of this particular area as unique and
exclusive.
[29] It goes without saying that the visual enjoyment of the
beautiful river forms an essential part of the intended
purpose of owning these luxurious properties and the reason
for the existence of this specific locality. That this is so, is
borne out by the way the applicants house was located,
designed, constructed and improved as well as the fact that
20
the properties are river front properties. All these were done
to ensure that the inhabitants derive optimum view and
enjoyment of the river.
[30] Over the centuries of human existence there has always
been a great affinity between water and the human race.
The visual impact of water be that of a dam, a lake, a river or
an ocean, is arguably one of the best known relaxing and
enjoyable experiences of human existence.
This is
particularly so when one’s primary purpose is to escape the
hectic activities of city life in order to relax in a scenic and
tranquil environment over the weekends or holidays as is
clearly the situation in the instant case. This applies not only
to the litigants but to all the inhabitants of the hamlet by the
riverside.
That is so, particularly in so far as the importance of the
visual enjoyment of the river is concerned is acknowledged
by the first respondent’s admission that:
21
“… die uitsig van beide die Eerste Applikant en Eerste
Respondent se eiendomme op die Vaalrivier, is uiteraard ‘n bate
vir beide eiendomme.”
(Vide par. 2.1.1.8 on p.130, of the paginated court record.)
[31] It follows from the aforegoing that what we are here dealing
with is not an average residential area where the hassle and
bustle of every day suburban life inevitably and necessarily
interfere with the quality of life and where the scenic
landscape view is not necessarily the only uniform
consideration why the residents of a town or a city choose to
live in a particular neighbourhood for instance the proximity
of a school, workplace, church, friends, relatives, security
wall or landscape view may attract different individuals to a
particular suburban area.
opposite.
Here we have exactly the
Here we have a relatively relaxed area where
those members of the city suburbia, fortunate enough to
afford it, escape to from time to time in order to enjoy what
they are routinely deprived of in their generally busy
residential areas. Among the things they seek here is the
scenic landscape and the panoramic view of the river
downstream and upstream which is the pinnacle of the
unique scenic beauty in the locality.
22
[32] It was argued on behalf of the first respondent that the
complaint of the applicants about the structure which now
partially impairs their view of the river was levelled at a
purely aesthetic consideration which is, in law, irrelevant for
the purpose of determining whether an act amounts to
nuisance. That aesthetic consideration is of no moment in
an enquiry such as the present is correct. However, what is
at hand here is not a complaint levelled at something, in
other words a structure which is not pretty or which is “an
eyesore” as was the case in DORLAND AND ANOTHER v
SMITS 2002 (5) SA 374 (CPD) on 380 per Comrie J.
[33] The complaint of the applicants there has to be distinguished
from the complainant of the applicants here. In that case the
complaint was merely that the electric fence installed on top
of a dividing wall between the two neighbouring properties
was something very ugly. That is really not the complaint
here. Here we have a completely different complaint. In this
case the complaint is that the structure erected over the jetty
on the neighbouring property has a material and negative
influence on the intended use, enjoyment and purpose for
23
which the neighbouring property was purchased, developed
and improved. That is the fundamental distinction between
the two. The similarity between the two is that in each case
the complaint entails a sense of sight. However, the mere
fact that the sense of sight or vision is also involved in the
instant case, does not without more render it a purely
aesthetic issue which in our law is not accorded the status of
a right.
[34] If we accept and I believe we should, that we are here
dealing with an extraordinary situation of two neighbouring
properties with unique attributes, developed in a highly
exclusive area on the pretty bank of a splendid river which is
the soul of everything in the rich men’s playground – then we
must appreciate, and acknowledge that to a reasonable and
neutral property owner in that particular society a view of the
river in question is much more than a pure aesthetic matter.
It is an asset with unquestionable proprietary significance.
Bearing in mind the prevailing circumstances including the
social norms, aspirations and the convictions of the
community in which the rival neighbours live, as well as the
intended use, enjoyment and purpose of the properties - all
24
these define the view of the river as an asset of immense
value. I am persuaded by Mr. van der Walt’s submission that
the complaint of the applicant should be viewed as a
complaint on the same level as a complaint against nuisance
caused by, for an example suffocating smoke, excessive
noise or obnoxious odour. Therefore my finding is that the
applicants have established the first requirement of a final
interdict namely their proprietary right to the use, the
enjoyment and the convenience of their property.
[35] In the second place the applicants have to show on a
balance of probability that considering the facts, the
respondent has infringed their legal right by acting in an
objectively unreasonable manner. The learned author C.G.
van der Merwe, Sakereg, 2nd Edition 191 compiled a useful
list of the various factors which play a role in determining
whether the actions of a landowner in a particular situation
were objectively reasonable in the given circumstances.
Also see LAWSA Vol. 27, First Re-issue p.230. par. 305.
[36] An interplay of the various considerations requires a
balancing act of the relevant factors against the backdrop of
25
the particular society in the prevailing circumstances of this
matter. Such a balancing exercise produces a few results
stated and analysed below.
[37] The action of the first respondent must be measured against
the particular local setting. We are here concerned with a
unique and exclusive setting where the enjoyment of nature
is of paramount importance, not only to the applicants, but to
the entire general society inhabiting the area in question.
There can be no doubt that relaxation underpins the
existence of the particular society. The view of the river is
the core consideration of such relaxation and enjoyment of
the properties. The character of the locality determines the
levels of tolerance of interference with human conduct the
neighbours mutually owe to each other in a particular locality.
(Vide MOSKEEPLEIN (EDMS) BEPERK EN ‘N ANDER v
DIE VERENIGING VAN ADVOKATE (TPA) EN ANDERE
1983 (3) SA 896 (TPD) at 900 H per McCreath J. The first
respondent has displayed unneighbourly and insensitive
level of annoyance unexpected of an inhabitant of the
particular locality.
unreasonable.
Therefore his conduct was objectively
26
[38] The conduct of the respondent must be measured against its
proportional
benefit
to
the
respondent
vis-à-vis
its
proportional harm to the applicant. The high-water mark of
the first respondent’s case is that the structure with a thatch
roof aesthetically in other words beautifully blends in with the
other buildings with similar thatch roofs on its property and
that the structure provides protection for its boat against the
weather elements.
[39] As regards the aesthetic elements of the thatch roof factor, it
has to be borne in mind that it is not the thatch roof per se
which constitutes the interference but the height of the
structure itself.
The respondent can still enjoy the same
aesthetic blending on its property not by removing the thatch
roof of the structure but by simply lowering the height of the
structure.
Such a downward adjustment to an objectively
tolerant and unobtrusive level will enable the applicants to
enjoy the same view of the river as they did before the
structure was erected. Right from the onset there could have
been no objectionable interference with the visual enjoyment
of the river view had the first respondent been a little
27
neighbourly and a little more accommodative of its
neighbour’s interest. In my view the first respondent failed to
display the level of tolerance the law requires in matters of
neighbour relations.
[40] As regards the protective element of the structure, it must be
understood that the boat sought to be protected is not
permanently stored under the structure. It is stored in the
remotely situated boat-house most of the time. If it is not in
the boat-house, then more often than not, it is on the water in
the river.
It is only in the jetty under the structure for
comparatively short periods when it is neither in the river nor
in the boat-house. Usually when a boat is not used on the
water, it is anchored against a river bank as was the case in
this instance before the first respondent arrived on the
scene. In the circumstances, it appears doubtful, whether
the structure has any material protective benefit at all to the
first respondent.
At best for the first respondent if the
structure has any benefit, which I have not been able to
appreciate, then such benefit is so marginal or negligible that
it is out of proportion to the harm brought about to the
28
applicants. The erection of the structure certainly renders
extraordinary the use of the first respondent’s property.
[41] Such extraordinary use goes beyond the accepted limits of
reasonableness and breaches the level of interference one’s
neighbour is by law expected to tolerate. The photographic
evidence vividly shows that the structure is of such
magnitude that it drastically impairs the applicant’s view
downstream in the south westerly direction a splendid view
they completely enjoyed prior to the erection of the structure.
It will be readily appreciated that the structure is a permanent
feature.
In my view the erection of a structure of such
proportions at such an obscuring spot was an intrusive
unneighbourly conduct which is tantamount to objectively
unreasonable interference.
[42] The complaint of the applicant must be measured against the
standard of a normal person of sound and liberal tastes and
habits: That is the test to be employed. (Vide PRINSLOO v
SHAW supra at 575.) At this juncture a number of factors
have to be restated and they include among others the
character of the locality we are here concerned with, the
29
intended purpose of the property acquired in this locality, the
trouble taken by the applicants to effect certain structural
improvements to their dwelling on the property, the
underlying reason for improving the property in that fashion,
the long period of time over which the applicants have had
the undisturbed use of their property and unobscured view of
the river, the apparent marginal benefit the first respondent
derives from the structure, the drastic and adverse impact of
the structure to the river view the applicants previously
enjoyed, the magnitude and the permanence of the structural
interference created afterwards.
[43] Having considered all these relevant factors I am of the
opinion that a normal person as the test describes placed in
this situation would probably have complained in pretty much
the same way as did the applicants in the instant case.
Therefore it cannot be seriously said that the complaint of the
applicant
is
objectively
unreasonable,
perverse,
over
scrupulous or finicky.
[44] The respondent’s conduct must be measured against the
result of an enquiry as to whether less harmful measures
30
were available or not. (Vide LAWSA Vol. 27 First Re-issue
p. 234, par.31 and also GIEN v GIEN supra at 1123 G – H.
The first respondent could have taken any of the following
measures or options to avoid intolerable interference which
precipitated these proceedings. The jetty could have been
constructed without any roof at all. The structure could have
been erected parallel to the river bank instead of
perpendicular thereto.
The structure could have been
designed to have a flat roof. The jetty with its thatch roof
structure could have been erected further downstream away
from the boundary between the neighbouring properties.
[45] It follows without saying that had these less harmful
measures to the applicants been employed by the first
respondent the former’s view of the river and the enjoyment
thereof would not in any way have been obstructed, impaired
or diminished. The intolerable interference with the deserved
comfort and convenience of the applicants could certainly
have been prevented by the first respondent erecting the
structure in a different manner or by erecting the structure as
is but in a different position or by erecting no structure at all
31
over the jetty as I have demonstrated above with five
possible alternatives or options.
[46] That the conduct of the respondent must be measured
against the backdrop of the practicality of preventing harm.
This assistive tool usually applies to a situation where a
respondent landowner inherits a certain existing state of
interfering affairs as in REGAL v AFRICAN SUPERSLATE,
supra.
Such a situation does not apply here.
The first
respondent did not inherit any interfering structure or
intolerable state of affairs on his property when he acquired it
recently. On the contrary he created the interfering state of
affairs.
However the practicality of preventing harm as a
factor has a certain bearing to the present facts. Had the
first respondent reacted positively to the neighbourly,
reasonable and early invitation by the applicants to discuss
alternatives and compromises before the structure was
erected, the present harmful interference could probably
have been prevented in a practical manner without recourse
to litigation.
32
[47] The onus was on the first respondent to show that there
were no reasonable steps which could have been taken to
prevent the nuisance.
(Vide MOSKEEPLEIN v DIE
VERENIGING VAN ADVOKATE (TPD) supra at 900H –
901A. The first respondent’s passive attitude towards the
applicant’s two invitations to compromise underlines the
former’s failure to discharge the onus.
[48] The conduct of the respondent must be scrutinised to
ascertain whether it constitutes a public utility or not. The
activities carried out on the one landowner’s neighbouring
properties which are aimed at promoting the public welfare
for an example activities relating to the agricultural use of
land are afforded preference over the activities aimed at
securing ordinary comfort of human existence on another
neighbour’s adjacent property. For instance an inhabitant of
a pig breeding region or cattle breeding region may have to
put up with the offensive odour and endless deafening noise
originating from the neighbour’s pig breeding activities. This
is so simply because public policy considerations dictate that
the public utility of such activities outweighs his or her private
individual comfort and convenience. (Vide MALHERBE v
33
CERES MUNICIPALITY 1951 (4) SA 510 (AD) on 517 – 518
per Hoexter JA. There is no suggestion in the instant case
that there is any element of public utility in the erection of the
structure complained of on the first respondent’s property.
Therefore the public utility factor is of no moment in these
proceedings.
[49] The conduct of the respondent must be scrutinised to
ascertain the possible motive which could have prompted
such conduct. The motive behind an activity may have an
effect on the question as to whether the respondent’s
conduct was objectively reasonable or unreasonable. The
following actions on the part of the first respondent are
relevant to the inquiry. Before the erection of the structure
the applicants invited the first respondent to view their
concerns from within the applicant’s house in order to
discuss the possible alternatives and compromises. The first
respondent failed to avail himself of this opportunity.
He
ignored the invitation and proceeded to erect the structure as
if there was no protest at all from its neighbours. In doing so
the
first
respondent
neighbours.
disregarded
the
interest
of
its
34
[50] In a bid to find the neighbourly solution to the problem the
applicants approached the first respondent but this time they
were informed by the latter’s representative that the first
respondent asserted that it was entitled to do as it pleased.
This assertion was recorded in a letter from the applicant’s
attorney Mr. Aguiax of Bowman Gilfillan to Mr. J.W. Mayer,
the first respondent’s director. The first respondent reacted
thereto
through
its
attorney
Mr.
Niedinger
of
Roux
Incorporated. But the said assertion or remark attributed to
the first respondent was not pertinently denied. According to
ordinary human experience, a firm repudiation of the
unfavourable remark or assertion would have be expected if
it was not correctly or truthfully attributed to the first
respondent.
(Vide
MCWILLIAMS
v
FIRST
CONSOLIDATED HOLDINGS 1982 (2) SA 1 (WLD) on p.
10 B – G per Miller JA and Hoffman & Zeffert:
South
African Law of Evidence, 4th edition, p. 180 – 181.
[51] Shortly after the first respondent had erected the structure
the applicants twice caused their attorney to invite the first
respondent to consider certain specific alternatives and
35
compromises.
The applicants were even prepared to
consider assisting the first respondent financially concerning
the payment of the costs relative to the implementation of
such alternatives and compromises.
The first respondent
failed to reply to any of the two invitations.
“It is difficult to refrain from forming the impression that the first
respondent acted with an unreasonable motive.
Such an
improper motive can turn an otherwise lawful activity into an
unreasonable activity which cannot be expected to be tolerated.”
Mr van der Walt submitted on the strength of the following
authorities:
LAWSA Vol. 27 First Re-issue, p. 233 par.
309; REGAL v AFRICAN SUPERSLATE supra on 107-108;
GIEN v GIEN supra on 1121. I am persuaded that the first
respondent was actuated by an improper motive.
His
conduct was bedevilled by objective unreasonableness.
[52] The respondent’s conduct must be measured against the
backdrop of the shift in the state of affairs.
Here the
underlying consideration is whether the alleged offensive
activity was carried on the scene by the respondent before
36
the applicant arrived on the scene. (Vide LAWSA, Vol. 27,
First Re-issue, p. 234, par. 313 where the complainant
comes to the nuisance he has a steep mountain to climb.
Where however, the respondent’s activity complained about
was not carried on prior to the complainant’s “coming to the
nuisance” or arriving on the scene then we have a different
ball game to play. In the instant case the complainant did
not go to the scene of the nuisance. The nuisance came to
them. They had the undisturbed use and enjoyment of 180
degree view of the Vaal River from downstream in the
southwest right across to the upstream in the northeast for
over a decade, since 1991.
The first respondent only
purchased the neighbouring property just over a year ago, in
2003. Then the interfering structure was erected.
[53] Having considered all these various factors I have reached
the conclusion that the erection of the structure complained
of substantially impaired the applicant’s use and enjoyment
of the river front property.
In considering the prevailing
circumstances of the particular society, the purpose for which
the applicants bought the unique house, the improvements it
subsequently made prior to the first respondent’s arrival on
37
the scene, the purpose of the structure erected and the
variety of less intrusive alternatives the first respondent had
at its disposal the erection of the interfering structure has
materially infringed the ownership right of the applicants for
their use and enjoyment of their property.
[54] It has to be mentioned that the first respondent erected the
structure without the prior written approval of the second
respondent, Metsimaholo Local Municipality.
This is the
secondary basis of the relief sought. In doing so the first
respondent acted in direct contravention of the imperative
statutory obligation contained in section 4 (1) National
Building Regulations and Building Standards Act Nr. 103 of
1977. The section provides that no person shall erect any
building in respect of which building plans are to be drawn
and submitted without the written prior approval of the local
authority in question.
The erection of the structure was
completed in June 2003. On 22 January 2004 the second
respondent wrote a letter which appears on p. 118 of the
paginated court record whereby it advised: That it had not,
as on that day, almost six months after the structure was
erected, received the required application for the erection of
38
the structure;
that it would not, in the meantime, consider
such an application if it were to be subsequently submitted
and that it would not oppose this application but would abide
by the decision of the Court.
[55] Notwithstanding
such
an
undertaking,
the
second
respondent subsequently approved the first respondent’s
application for the erection of the structure during June 2004,
almost a year after the structure was erected. (Vide p. 254
of the paginated court record.) However, 13 months later on
Thursday 22 July 2004, during the course of legal argument
in these proceedings, Mr Jordaan, counsel for the first
respondent, provided the court with yet another letter from
the second respondent dated 22 July 2004.
The second
respondent’s stated in the letter that the subsequent
municipal approval of June 2004 had been withdrawn by the
second respondent.
[56] Whatever the effect and consequence of the subsequent
municipal approval and its subsequent withdrawal, the fact
remains that the requisite prior approval had not been sought
let alone obtained at the time the structure was erected and
39
completed more than a year ago in June 2003. Therefore
the structure was illegally erected.
An unlawful act can
hardly be described as reasonable. The bonus paterfamilias
of our law does not act unlawfully.
Similarly a bonus
materfamilias of our democratic era does not embark upon
illegal activities.
[57] In the circumstances I find overall and on a balance of
probabilities, that the erection of the thatch roof structure
over the jetty on the first respondent’s property situated
adjacent to the applicant’s constituted an objectively
unreasonable conduct which infringes the applicant’s rights
of ownership and diminishes the ordinary use, comfort,
convenience and enjoyment of their property.
I would
therefore set aside the purported subsequent approval and
prohibit the future approval and authorise the dismantling
and the removal of the interfering structure.
[58] Now I turn to consider the third requisite of the final interdict,
namely whether the applicants have an adequate alternative
remedy. Mr van der Walt submitted that they did not. Mr
Jordaan submitted that they did. Mr Jordaan on the one
40
hand submitted that an interdict should not be granted,
where the applicants have an adequate alternative remedy.
He argued that since the applicants have an alternative
remedy in the form of an action for damages the application
must fail. Mr van der Walt on the other hand submitted that
the applicants did not have an adequate alternative remedy
by way of action proceedings instead of application
proceedings.
In developing his argument further he
contended that the quantum of a lost view cannot be
ascertained.
[59] What I now have to consider is whether the contention of the
first
respondent
is
sufficient
reason
to
dismiss
the
application. The court will not readily grant an unusual relief
of an interdict where the applicant has his usual redress of
an action to recover ample compensation of damages. The
court will not grant an interdict to restrain an actionable
wrong for which damages are the proper and adequate
remedy.
(Vide BUITENDACH AND OTHERS v WEST
RAND PROPRIETARY MINES (LTD) AND ANOTHER 1925
(TPD) 886 on 906 – 907.)
41
I am of the opinion that the first respondent is not entitled to
succeed on its contention based on the grounds that the
applicant’s have used a wrong remedy by bringing the matter
to court by way of an application instead of an alternative
remedy by way of an action. The alleged alternative remedy
is in my considered opinion an inadequate remedy. It cannot
adequately protect the applicant’s rights in the instant case.
There is indeed substance in the submission of counsel for
the applicants. They have no appropriate redress. It can
hardly be denied that the basic remedy the one neighbour
has against another lies in the neighbourly negotiations on
the domestic front. However, in the instant case that avenue
was shut down by the first respondent.
quantifying
the
applicant’s
damages
The difficulty of
has
long
been
recognised as a factor relevant to the enquiry of this kind.
(Vide
NAMPESCA
(SA)
PRODUCTS
(PTY)
LTD
v
ZADERER AND OTHERS 1999 (1) SA 886 CPD on p. 901
per Van Reenen J and the authorities there cited.
[60] I wish to conclude this point by paraphrasing the words of
Greenberg J in TOWN COUNCIL OF ROODEPOORTMARAISBURG v
POSSE PROPERTY (PTY) LTD 1932
42
(WLD) 78 on P. 87 – 89. Where the injury caused by the
respondent’s objectively unreasonable interference cannot
be adequately compensated or is so serious and material, as
in this case, that the restoration of things to the state of
affairs before the interference is the only appropriate method
by which justice between neighbours can adequately be
done, then an interdict has to be granted. An interdict is
deemed to be a more appropriate remedy, not to the person
who suffers no pecuniary damages but to the person who
suffers
damages
which
cannot
be
quantified
and
compensated in monetary terms. In the light of the peculiar
circumstances of the instant case, I have come to the
conclusion that an order for the removal should be granted.
The third requisite has been established. The protection of
the
applicant’s
rights
weighs
more
heavily
on
the
discretionary scale I am holding than the protection of the
respondent’s rights by the preservation of a structure with
very little protective value of its property.
[61] In the light of the prevailing circumstances and from the
perspective of the particular society which inhabits the
43
particular area, the erection of the structure was an objectively
unreasonable and actionable interference with the ordinary
use comfort, convenience and enjoyment of the applicant’s
property to an extent much greater than a normal member of
such society can be expected to endure in his contact with
fellow inhabitants. In other words the conduct of the first
respondent is an objectively unreasonable annoyance which
is plus quam tolerabile. Therefore I incline to the view that,
on the primary basis relied upon by the applicants, namely
the common law nuisance, they are entitled to the relief they
seek against the first respondent. In saying this I should not
be understood to suggest that the applicants have failed to
make out a case on the secondary basis they relied upon for
the relief they seek. They have not.
[62] Elsewhere in this judgment I discussed the applicants
endeavours made in an exemplary, reasonable and
neighbourly fashion to prevent this expensive litigation. The
first respondent simply ignored those attempts. I do not wish
to labour the matter further anymore.
In my view the
applicants have made out a sound case which entitles them
to an order of costs against the first respondent on the party
44
and party scale. Both parties had asked for costs on the
scale as between attorney and client. None had made out a
convincing case for such an order.
Although the first
respondent has been unsuccessful in its opposition of the
relief sought it cannot be contended that its decision to
contest the matter was frivolous. This was a complex matter.
The first respondent engaged the services of two counsels a
senior and a junior. That alone is indicative of the complexity
of the matter as well as the first respondent’s earnest
intentions to protect what he considered to be an invasion of
the reasonable exercise of its rights of ownership in respect
of its property.
The unneighbourly attitude of the first
respondent prior to the institution of these proceedings
should not be so exaggerated as to overshadow this reality.
[63] Counsel for the applicant argued that it was the case of the
applicant’s that the interference complained of had a
materially negative influence on the market value of the
property belonging to the applicants. Counsel for the first
respondent argued that the applicants have not, on the
papers, made out such a case. I deem it unnecessary to
deal with this argument. The legal position is that it is not
45
necessarily incumbent upon the applicants to show that they
have suffered any patrimonial loss whatsoever occasioned
by an interfering activity of this nature in order to succeed.
An objectively unreasonable interference constitutes an
actionable interference with or without any patrimonial loss
arising there from and suffered by the complainant.
The
applicant can succeed even if it is shown that the
interference has in no way adversely affected the market
value of his property.
(Vide VOGEL v CREWE AND
ANOTHER 2003 (4) SA 509 (TPD) on 511 par. 2.)
[64] On the first respondent argument there is a material dispute
between the expert opinions by Neil de Klerk on behalf of the
applicants (vide Annexure “M19” on p. 96) and Bruce Stuart
on behalf of the first respondent (vide Annexure “JWM29” on
p. 183).
in respect of the question whether the structure
derogates from the market value of the applicant’s property.
For the reasons already enumerated in the preceding
paragraph this factual dispute is not fundamental to the
essence of the matter. Therefore it needs not be resolved
one way or the other for the purposes of the current lis
between the applicants and the first respondent.
46
[65] Accordingly I make the following order:
65.1 That the first respondent shall forthwith demolish and
remove the thatch roof structure over the jetty on the
riverfront of its property known as Portion 2 of the farm
Bersheba 1 R.D. Parys, Free State Province in extent
7,739 hectares held under Title Deed Nr. T2914/1962.
65.2 That the first respondent is directed to pay the cost of
the applicants relating to this application.
65.3 That, should the first respondent fail to give effect to
the aforesaid order within 7 days from the date hereof,
the second respondent shall forthwith make an
application in terms of section 21 of the National
Building Regulations and Building Standards Act Nr.
103 of 1977 for an order authorising the second
respondent or the sheriff of the district in question to
demolish and remove the structure, and to execute
such order without delay;
47
65.4 That the second respondent shall not approve the
building plans submitted to it in respect of the same
property of the first respondent for the erection of the
same structure in the same position in the future.
Alternatively, that should such plans have been
approved by the second respondent in the meantime
such approval is hereby set aside as being in
contravention of section 7(1)(b) (aa) (aaa) or (bbb) or
(ccc) or (bb) or any two or more or all of those
subsections together.
______________
M.H. RAMPAI, J
On behalf of Applicants:
Advocate T van der Walt
Instructed by
Bowman Gilfillan Inc.
JOHANNESBURG
Honey Attorneys
BLOEMFONTEIN
On behalf of First Respondent:
Advocate A.F. Jordaan S.C.
Assisted by
Advocate S. Guldenpfenning
Instructed by
Roux Incorporated
JOHANNESBURG
Symington & De Kok
BLOEMFONTEIN
48
On behalf of Second Respondent: No Appearance
On behalf of Third Respondent:
/ECoetzee
No Appearance