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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2012/38490

DATE: 5 DECEMBER 2014

REPORTABLE

OF INTEREST TO OTHER JUDGES

In the matter between:

JOHANN HEINRICH RICHTER...........................................................................................Applicant

and

WATERFALL EQUESTRIAN ESTATE

WUQF (PTY) LIMITED...............................................................................................First Respondent

CLIDENT NO 60 (PTY) LIMITED.........................................................................Second Respondent

CRAIG BAKER............................................................................................................Third Respondent

WATERFALL EQUESTRIAN ESTATE

OWNERS’ ASSOCIATION........................................................................................Fourth Respondent

THE JOHANNESBURG CITY COUNCIL................................................................Fifth Respondent

SUMMARY

Administrative law – Administrative act as envisaged in s 1 of Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) – review of decision of developer of Estate and Homeowners’ Association in approving building plans under PAJA and/or common law – delay by applicant in reviewing decision – remedy of specific performance not competent to applicant – nuisance intolerable – what constitutes – applicant and third respondent are neighbours in Equestrian Estate – third respondent with approval of developer and Home Owners’ Association erecting on his property a tennis court and floodlights and the tennis court with minor deviation from building lines – demolition of tennis court and related structures on third respondent’s property not justified in circumstances where applicant aware and acquiesced therein – not justified and equitable in circumstances – suite of contracts in which applicant and respondents involved – proper approach to interpretation of contracts – new approach of interpretation instructive over and above ‘golden rule’ of interpretation.

J U D G M E N T

MOSHIDI, J:

[1] One of the parties’ heads of argument have, correctly in my view, described that, at the heart of this application lies an acrimonious dispute between two neighbours, over the construction, positioning, and utilization of a retaining wall and/or the tennis court and its fence and/or the floodlights (“the structures”) on the third respondent’s property situated in the Waterfall Equestrian Home Estate (“the Estate”).

THE RELIEF CLAIMED AND THE PARTIES

[2] In the notice of motion Mr Johann Heinrich Richter (“the applicant”) seeks interdictory and final relief, declaring as invalid and setting aside any approval/s which may have been granted for the erection of the structures on Portion 667 (stand 87), a portion of Portion 580 of the Farm Waterfall No 5 Registration Division IR, Gauteng, in the name of Mr Craig Baker, the third respondent (“Baker’s property”).  The applicant also seeks an order directing the first to the fourth respondents to comply with their contractual obligations, and for them to take all reasonable steps to demolish the structures and ensure that the third respondent complies with the Handbook for Residents and Conduct Rules of the equestrian estate described below.  The applicant also seeks an order that Waterfall Equestrian Estate WUQF (Pty) Limited, the owner of all land comprising the Waterfall Equestrian Estate (“the first respondent”); and Clident NO 60 (Pty) Limited, the developer of the Waterfall Equestrian Estate (“the second respondent”), be authorised to instruct the third respondent to demolish the structures, alternatively, to remove the tennis court, floodlights and poles erected thereon. Further alternatively, an order directing that the structures, alternatively the floodlights and poles erected thereon, be demolished, alternatively removed. The fourth respondent is the Waterfall Equestrian Estate Owners’ Association.  The fourth respondent is not opposing this application, and has in fact consented to the order sought against it.  The City Council of Johannesburg Metropolitan Municipality is the fifth respondent.  There is no relief claimed against the fifth respondent.  It has not filed papers in these proceedings.  The relief sought by the applicant is based on his assertions that the above named structures are unlawful and constitute a nuisance. 

CERTAIN COMMON CAUSE FACTS

[3] The following are either common cause or not disputed seriously.  The Estate is one of the most exclusive equestrian estates, north of Johannesburg, in South Africa. It was developed by a company called Century Property Developments (Pty) Ltd.  The development of the first respondent was aimed at creating a lifestyle and environment of enduring quality and excellence.  Its development targetted setting new benchmarks in the industry, but one in which investors will always aspire to be a part of. The development is not only considered one of the finest in the country, but also includes leasehold arrears.  It is served by common property consisting of open areas, ponds, water features, community facilities, roads and infrastructural services.  It is enclosed by a solid security wall and electrified gates.  The 140ha estate is divided into generous residential stands of approximately 1 Morgan (8567 square meters each), with residents being responsible for the design and building of their own homes.  The residential equestrian estate is run by an elected Home Owners’ Association, as dealt with later herein below.

[4] The first respondent is the owner of all the land comprising Waterfall Equestrian Estate. The second respondent became the developer of the Waterfall Equestrian Estate, and is also party to the 99 year leases entered into between the owner, i.e. the first respondent and other parties who wished to develop residential properties on portions of the estate.  The applicant, Mr Johann Heinrich Richter, resides and owns stand no 86 within the Estate.  He acquired this property in terms of a 99 year lease from the first and second respondents.  Pursuant to the conclusion of the lease, the applicant constructed his home, which he occupies with his family since about November 2007.  Mr Craig Baker (“the third respondent”) is the owner of stand no 87 within the Estate and also acquired through a 1999 year lease with the first respondent and the second respondent.  Baker’s property is adjacent to the applicant’s property, on the immediate western boundary of the applicant.  They are neighbours. 

[5] The third respondent acquired his property on the same basis as the applicant but after the applicant, namely, during August 2009.  It measures approximately 8500 square meters.  It is rather significant in this matter that the third respondent commenced building operations of both his house and a tennis court during May 2010.  The house was completed in January 2011, and the tennis court as well as its floodlights (the main subject of the present proceedings) were erected by May 2011.  The third respondent occupies his house with his wife and two minor children.

[6] The Waterfall Equestrian Estate Home Owners’ Association (“the fourth respondent”) manages the Estate.  At all material times hereto the directors of the fourth respondent comprised of Mr M A Corbett (“Corbett”) and Mr R C Emett (“Emett”).  These last mentioned were also directors and/or employees of the second respondent, the developer.  However, in spite of the fourth respondent’s attitude presently, it played a rather vital role in this matter.  It is an Association Incorporated in terms of sec 21 of the Companies Act 61 of 1973.  It manages the Estate in accordance with its Articles of Association.  Some of the main and relevant objects contained in Articles of Association are:

“To oversee, regulate and control the harmonious development of the Estate and to ensure and promote the general high standard of the development; to lease, control, improve and maintain the common property, including the environmental management of the development; to lease, control, improve, maintain and ensure where necessary the building, structures, installations and equipment relating to the common property; to promote, advance and control the communal interests of home owners, lessees and residents”;

and

“to control the nature and positioning of buildings, structures, installations and equipment relating to subdivisions.”[1]

[7] All the individual lessees in the Estate are members of the fourth respondent, and subject to the Articles of Association.  The leases include, inter alia, the Handbook of residents and Conduct Rules, which, in turn, include the architectural and landscaping guidelines. 

[8] I must, at the outset, state that the matter is significantly complex as it involved the interpretation of various contractual obligations of the parties involved, including the lease agreements.

[9] In the founding affidavit, the applicant’s main complaint may be summarised as follows:  that the third respondent has, owing to alleged flagrant and material breaches by the first respondent, the second respondent, and the fourth respondent, constructed a substantial retaining wall/structures, approximately 2 metres from the boundary wall between applicant’s property and Baker’s property (i.e. the third respondent’s property). The applicant alleged that the retaining structure encroaches substantially over the applicable building lines, and allowed the third respondent to raise the natural ground level along his boundary by more than 2 metres higher than the 1,7m boundary wall between the applicant’s property and the third respondent’s property, and the construction thereon of a tennis court with a high fence and floodlights (“the alleged unlawful structures”). 

[10] The applicant went on to claim that the alleged unlawful structures were erected in breach of the third respondent’s lease, the fourth respondent’s Handbook for Residents and Conduct Rules (“the Handbook and Rules”), the building guidelines, the Articles of Association[2], as well as the applicable legislation and regulations. The applicant further contended that the alleged unlawful structures are a nuisance to him, impact on and infringe on his family’s use and enjoyment of his property.  The said structures are unsightly and objectionable and have caused substantial derogation in the value of the applicant’s property. The applicant alleged that when the floodlights are on at night, he is unable to utilise the western and south-west areas of his home as he is blinded by the light which floods down over and into his property.  It became worse when the third respondent plays tennis on the tennis court at night because of the noise and the lights, as “it is as if he is playing tennis in my lounge”.[3]

THE SECOND AND THIRD RESPONDENT’S CHALLENGES

[11] The first, second and third respondents challenged the applicant’s contentions on various grounds in their respective answering papers.  As a starting point, the third respondent raised several defences to the application.  These included that the applicant has no legal basis to claim the relief sought against the third respondent in that the time for such relief, if any, had come and evaporated;  the structures are not unlawful as alleged, and if they are, the applicant has demonstrably acquiesced to the erection of the structures; that at best for the applicant if his contentions were factually correct, there was a breach of contract between the applicant and the first and/or second respondents. The third respondent was not party to the applicant’s lease agreement, and vice versa.  For these reasons, the third respondent said that the applicant was not entitled to a demolition order, nor has he shown any unlawful nuisance.  The third respondent also alleged that the applicant’s papers contained various factual disputes which cannot be resolved on paper.  I shall later herein deal in more detail with the third respondent’s defences.

[12] In the answering papers, the third respondent also took issue with the applicant’s attempt to seek relief against him in the form of specific performance based on their respective lease agreements, the Handbook, the Articles of Association, as well as the building lines.  It is so that in the founding affidavit, and under the heading “Specific Performance”,[4] the applicant made the following allegations:

“The rules and articles are clear.  I reiterate that I entered into the applicant’s lease on the basis that the rules would be given effect to and enforced against my neighbours. The warranties given in the applicant’s lease by the Owner and Developer are meaningless unless the rules are enforced. This was certainly my understanding and what I was led to believe in negotiating and in agreeing to the applicant’s lease with the Owner and the Developer.  Baker, the owner, the developer and the Association are in flagrant breach of their obligations.”

The third respondent similarly took exception to that part of the applicant’s relief sought on interdictory basis.[5]

[13] In regard to the submission that the alleged unlawful structures were erected under the nose of the applicant, without a murmur from him, the third respondent contended that the applicant was acutely aware of the construction of the house and the tennis court with floodlights which were completed during May 2011.  On this basis, the third respondent submitted that the applicant knew in advance that tennis was going to be played; if it was at night, that the floodlights would be switched on; the erection of the tennis court itself entailed the cut and fill earthworks in order to create a level platform.  In order to achieve this, bulldozers and road graders and ride on compactor equipment was required to be utilised; soil establishing cement, mixed with soil, compacted to 95 modish;  a concrete bed 120mm thick with reference 93 weld mesh;  concrete placed level and polished;  expansion joints cut;  the excavation of tennis court posts and floodlighting posts; the installation of PVC diamond mesh fencing; and the erection of tennis court lights with metal halide lamps.

[14] The third respondent further argued that the platform of the tennis court, was laid by the end of January 2010.  This was done with the consent of the second respondent.  For this argument, the third respondent pointed to the Site Plan, annexure “J”[6], referring to the third respondent’s house and boundary plans, which showed a stamp of approval of Century Property Developments in approving the plans on 10 February 2010. In addition, annexure “M1”, attached to the founding papers,[7] is an email from Mr Mark Corbett of the Developer to the applicant dated 10 February 2010.  The email read:

“First I think you should really calm down and stop with the sarcastic comments.  The platform that the house is on is more cut than fill so there is no issue with the house.  If you recall we agree at the last meeting that the middle of the house should be on natural ground level which is below you said that this house was was placed on a built up platform so that it is what I looked at and his plans to ensure that the house middle point was on natural ground level.  The problem is not with his house it is a platform that he has built for his garden that is about 1.5m high not 10m …” (sic)

[15] The third respondent further emphasised the acquiescence in the alleged unlawful structures by referring to a letter dated 4 September 2011 addressed by the applicant to the trustees of the Estate, in the following terms:

“Dear Trustees

I hope you are all well.  I thought about this for a few months before writing to you, but unfortunately can’t handle it anymore and therefore the mail.  I am not sure if this is an Aesthetics issue or merely a general code of conduct living in the Estate. But I would love to have your input and finding a solution. As you all know, I have build our house around our rock on our stand to be completely private from all neighbors.  I have no curtains in my lounge, dining room and kitchen areas as a result and this was one of my reasons for living on this wonderful estate of yours.  See pic attached.  Not in my worsts nightmares would I imagine our neighbors being allowed to lift their stand (yes I lost that fight and are not bringing it up again), but worst, being allowed to build a tennis court right on my boundary wall, the same height as my wall.  At the time of building I called Jacqui to lodge a formal complaint and she informed me that there is nothing I can do and I have accepted their tennis court on top of me, which I reluctantly did.”  (underlining added)

[16] On the version of the third respondent, even when the structures were completed, the applicant’s inertia continued.  In this regard reliance was placed on the contents of para 117 of the founding affidavit[8], in which the applicant stated:

“Once the unlawful structures were completed and Baker began using the floodlights at night, the full impact of the unlawful structures on my use and enjoyment of the applicant’s property became more apparent.”

[17] The third respondent contended that he followed the correct procedures in erecting his house, tennis court and floodlights in every sense.  He submitted sketch plans, which were approved by the second respondent on 4 November 2009.  The sketch plan, annexure “AA6” to the answering papers[9], included the tennis court, all elevations and Site Plan.  It also clearly showed the infringement of the building lines only of the tennis court. However, the sketch plan showed the stamp of approval of the second respondent.  Final plans were submitted by the third respondent and duly stamped and approved by the second respondent on 10 July 2010.  As far as the orientation of the tennis court, and its size are concerned, (the size is smaller than indicated on the plans), this was done, according to the third respondent, solely in order to minimise the impact and view of both the applicant and another neighbour. The third respondent consciously reduced the length of the tennis court from 34 metres to 3,9 metres and the width from 16 metres to 14,3 metres.  In support hereof, the third respondent referred to annexures “AA7”,[10] and annexure “AA8”[11].  Annexure “AA7” is a letter dated 26 November 2012, issued by a Senior Land Surveyor, Mr R Meiring.  In the letter, Mr Meiring confirmed that he had surveyed the third respondent’s property on the same date, and: “A trimble R4 GPS was used and all info provided are confirmed to the correct.”  Annexure “AA8” is a photograph taken by the third respondent showing how, on the instructions of Jacqui Corbett of the second respondent and/or the Development Committee, he removed the air-conditioning unit to ground level.  Other than this, as well as the playing of tennis at night beyond 21h00, the second respondent and the fourth respondent had no other disagreements with the third respondent.  There are admittedly other tennis courts in the Estate.

[18] In the context of this matter, the measurements, and the orientation of the tennis court, as given by the third respondent, on his version, were in stark contrast to the measurements provided by the applicant, which he claimed to be, in respect of the distance between the applicant’s boundary wall and the tennis court, i.e. 2 metres.  The third respondent said it is in fact 4,22 metres.  In respect of one of the third respondent’s neighbours, Tussendorf (“Tussendorf”), the applicant claimed that distance to be 3 metres, whereas the third respondent said it was in fact 5,97 metres.

[19] In sum total, the third respondent alleged that the alleged unlawful structures were erected pursuant to proper approval by the second respondent and the Aesthetics Committee;  were erected under the nose of the applicant; the measurements given by the applicant and which cause him unhappiness were incorrect;  the applicant was not a party to the third respondent’s lease agreement and vice versa; the tennis court and floodlights did not constitute a nuisance; the structures complained of are not “structures” in the true legal sense; and that the applicant was simply an unreasonable neighbour that never attempted to engage with the third respondent properly and constructively as other neighbours did, and has in fact, acquiesced in the erection of the alleged structures.

SOME OF THE FIRST RESPONDENT’S CONTENTIONS

[20] The owner of the land on which the Estate was developed (“the first respondent”), filed answering papers in which it provided sufficient background to the establishment of the Estate.  Details of the background were unnecessary to repeat in full for present purposes.

[21] In brief, in March 2004, and after negotiations, a Land Availability Agreement (“the LAA”) was concluded between Witwatersrand Estates Limited, the Waterfall Islamic Institute and the developer (the second respondent).  The LAA is the framework agreement that established the foundation for the development of the Estate.  In terms of the LAA, the Waterfall Islamic Institute agreed to release that portion of land described as the Development Site from its lease. Witwatersrand Estates Limited agreed to transfer the Development Site to a new company which is referred to as Propco, and it is now the first respondent.  The latter agreed to enter into the Main Lease with the developer (the second respondent) and to enter into leases with lessee’s (purchasers), and the second respondent undertook the development and the disposal of the various stands.  The risk in, and the possession of, the Development Site was given to the second respondent on the date of the signature of the LAA.  In other words, from March 2004, the second respondent has been in possession of the land. The second respondent was granted authority to sign the leases with the purchasers, whilst the first respondent played no part in this process.

[22] The LAA also dealt with the establishment of a Resident’s Association, which is a reference to the Home Owners’ Association (“the fourth respondent).  The second respondent, as developer, was required to establish the fourth respondent which would be entitled to make rules regulating the activities of the development.  Clause 25.2 of the LAA (not clause 23 as alleged in the first respondent’s answering papers), provided that:

“The Developer [the second respondent] indemnifies Propco and/or WEL and holds them harmless against any loss or damage that may be suffered by them arising from any claim brought or threatened against them by any third party by virtue of anything done or omitted to be done by the Developer in or about the Development Site and/or the Developer or otherwise.”[12] (my insertion)

WEL is the Witwatersrand Estates Limited.  From this, it is clear that the first respondent had passed control and possession of the development land to the second respondent, and had no control over same.

[23] The first respondent also attached to the answering papers a copy of the Main Lease between itself and the second respondent.[13]  What is of some importance are the provisions of clause 7 of the Standard Lease Terms of the individual leases entered into with purchasers.[14]  Clause 7.5 of the Standard Lease Terms requires the lessee to be acquainted with, and, to adhere to, inter alia, which are defined in clause 1.1.22 to mean the rules of the fourth respondent, which are attached to the lease as annexure “B”, and which include the Architectural Guidelines.  In this regard, it is significant that the lessee’s undertaking to comply with the Architectural Guidelines was an undertaking given to the first respondent only as the counterparty to the lease. That undertaking clearly did not entitle a third party who is not a party to the lease to attempt to enforce the lessee’s undertaking (emphasis added).

[24] As far as the approval of plans was concerned, the first respondent pointed to the stipulation in clause 31 of the Articles of Association which is given content in clause 4 of the Architectural Guidelines.  In terms of the latter, a homeowner may not erect any building or addition “… without the approval of the Aesthetics Committee”.  Clause 4 of the Architectural Guidelines sets out the three-stage process during which approval of various building plans will be given. The first respondent is not involved in the approval of plans and is also not a member of the fourth respondent.  Based on the above exposition, the first respondent contended that it has acted in accordance with the provisions of the various agreements involved.  This meant that it is not involved in the day-to-day operation of the Estate, and also not involved in disputes that have arisen between the various lessees, the second respondent, and the fourth respondent.  The first respondent argued that it has, as it is obliged to do in terms of the Leases, made available to the lessees the land which was leased. 

[25] In the final analysis, the first respondent contended that the application against it ought to be dismissed on several grounds.  These included that the applicant was not entitled to attempt to force the first respondent to comply with the provisions of the third respondent’s lease when the applicant is not a party to that lease.  The improvements erected on the third respondent’s sub-division do not constitute a breach of the applicant’s lease.

THE SECOND RESPONDENT’S ARGUMENT

[26] I turn to the submissions of the Developer (the second respondent).  In resisting the relief sought by the applicant on several bases, the second respondent raised a preliminary point of law in terms of the provisions of Uniform Rule 6(5)(d)(iii).  This is that, in the notice of motion, the applicant seeks the review and setting aside of any approval/s which may have been granted in respect of the alleged unlawful structures on the property of the third respondent (Baker’s property).[15]  The founding affidavit made it clear that the approval contemplated is that of the second respondent. Such approval of the second respondent constituted administrative action as envisaged in the Promotion of Administrative Justice Act.[16]  Any review of the decision would have to be brought in terms of sec 6(1) of PAJA.  Section 7(1) of PAJA requires any proceedings for judicial review in terms of sec 6(1) to be instituted without unreasonable delay, and not later than 180 days after the date:

26.1 On which any proceedings instituted in terms of internal remedies have been concluded; or

26.2 Where no such remedies exist, on which the applicant for review was informed of the administrative action, became aware of such action and the reasons for it or might reasonably have been expected to have become aware of such action and the reasons.

In short, the second respondent argued that the present application is bad in law and ought to be dismissed since the applicant launched the application on 11 October 2012, more than 18 months after April 2011 when the applicant became aware, or was reasonably expected to have become aware, of the approval by the second respondent.  In the alternative, the second respondent argued that if the approval of the alleged unlawful structures by the second respondent did not constitute administrative action as envisaged in PAJA, the applicant should have sought the review of the second respondent’s approval in terms of the common law.  This would have required the applicant to institute review proceedings within a reasonable time of becoming aware of the approval.

[27] In the replying affidavit, on the point of law raised by the second respondent, the applicant merely contended that he does not seek a “review” as contended by the second respondent, and left the rest to argument at the hearing of the matter.[17] 

[28] The second respondent’s answering affidavit was signed on his behalf of Ms Joanne Reynolds (“Reynolds”), where necessary.  She is an architect in the employ of the second respondent. The point of law raised in limine in terms of Uniform Rule 6(5)(d)(iii) was repeated.  In addition, the second respondent argued that the applicant ought to have followed the procedures set out in Uniform Rule 53 in seeking to review and setting aside the decision of the second respondent in approving the third respondent’s plans.

[29] Reynolds is a member of the second respondent’s Aesthetics Committee, whose function is to consider plans submitted to the second respondent for its approval.  This is in respect of the development or erven in the Estate.  Her co-member of the Aesthetics Committee is Mr M E R Bishop (“Bishop”) who is also a qualified architect. The alleged unlawful structures complained of by the applicant were constructed between June 2010 and April 2011.  The applicant was therefore all along aware of what was being constructed prior to launching the present application, and he accepted the position.  He, in fact, chose to wait for some 18 months after the completion of Baker’s property and structures and before coming to court. 

[30] The second respondent contended that, the applicant, having previously developed his own property in the Estate, was fully aware that any improvements on Baker’s property could only take place in accordance with the Handbook and Rules of the Estate, building guidelines, and the Articles of Association, as well as with the necessary approval of building plans by the fifth respondent.  This will be in terms of the National Building Regulations and Building Standards Act 103 of 1977 (“the Building Standards Act”).

[31] In regard to the tennis court floodlights, which appear to be the applicant’s major concern, the second respondent had this to say:  although the applicant made it clear that certain of the windows in his house have no curtains as a result of which the floodlights illuminate the rooms thereof in an unwarranted manner.  The applicant has not indicated any preparedness to consider installing curtains or blinds on the windows which are the source of the problem. The second respondent then made reference to the sketch plans and building plans in respect of Baker’s property.  These plans were made available to the applicant’s attorney of record in response to a request in terms of Rule 35(12).  The applicant has simply rejected out-of hand the suggestion by the second respondent and the fourth respondent that the tennis court floodlights be defused, and not to be allowed to shine beyond the limits of the tennis court. In the view of the second respondent, the applicant’s attitude that he will be satisfied with nothing less than the lowering of the tennis court surface and the removal of the tennis court lights, are unreasonable measures.  It would also be prohibitively expensive, and unnecessary.

[32] In addition, the second respondent contended that the applicant’s rejection of the third respondent’s undertaking of ameliorating the alleged nuisance and invasion of privacy – one of his complaints – was equally unreasonable.  In this regard, the third respondent gave the undertaking to refrain from utilising the tennis court and floodlights after 21h00.  Not even the fourth respondent’s rule and resolution subsequently to the effect that tennis courts and/or floodlights may not be utilised in the Estate after 21h00, were acceptable to the applicant (there are other tennis courts in the Estate).  This was not in dispute.

[33] More significantly, the second respondent in the answering papers, pointed out that, the applicant, in support of the present review seeks of second respondent’s approval and of the removal of the structures on Baker’s property. In this regard, he relied on the building line restrictions and other control measures imposed in respect of properties in the Estate in the Handbook and Rules of the Estate, the building lines and the Articles of Association of the fourth respondent, and contended that these have not been adhered to.  The applicant, however, in the process, failed to disclose the various provisions in these documents which grant a discretion to the fourth respondent, its Aesthetics Committee, as well as the second respondent (as developer) to relax the building line restrictions, and other development controls.  This Site Plan in respect of the house erected on Baker’s property, annexed to the founding affidavit i.e. annexure “J”, is unequivocal that, insofar as the tennis court is concerned, the building line restrictions on the third respondent’s property were in fact relaxed by the second respondent’s Aesthetics Committee.

[34] What is more crucial, and somewhat destructive of the applicant’s case, is the assertion of the second respondent in the answering papers about the correctness of the measurements of the applicant in the following respects:  in the founding affidavit, the applicant contended that the tennis court (and any other structure including the retaining wall and the fence and floodlights), ought not to have been any closer to his boundary than 15 metres, as opposed to the 12 metres where they have been construed.[18]  However, the second respondent pointed out that the correct position is that the tennis court on the third respondent’s property is situated at least 4,2 metres from the boundary line between  Baker’s property and the applicant’s property. This was confirmed by the third respondent’s land surveyor, Meiring.

[35] In the answering papers, both Reynolds of the second respondent and Bishop, whose confirmatory affidavit was annexed,[19] confirmed that the tennis court on Baker’s property was erected substantially in accordance with the second respondent’s approval as shown in annexure “J” to the founding affidavit, subject only to a minor deviation.  The tennis court has been swung by 17 degrees so that it aligns more closely with the north-south axis, with the result that it now runs parallel to the eastern boundary of Baker’s property.  Reynolds could, however, not explain why the deviation depicted in annexure “J”, was not brought to the attention of the second respondent, and the fourth respondent before or during the construction of the tennis court.  However, Reynolds expressed the view that if the plan was submitted to the second respondent’s Aesthetics Committee at the time, and it depicted the tennis court in the position in which it has been built, they would approve such plan.  This is also confirmed by Bishop, once more. (underlining added).  As in the case of the third respondent, the second respondent asserted that the retaining wall and the floodlights are not “buildings” and, as such, are not subject to any of the building line restrictions imposed.

[36] In the end, and whilst denying that the second respondent breached any of its obligations, the second respondent further challenged several of the allegations made by the applicant.  These included that the extent to which the applicant alleged that the ground level had been raised is a gross exaggeration.  The retaining wall is only visible to the applicant at its northern end;  that the retaining wall is not a structure as envisaged in the Handbook, the Rules, the building guidelines and/or the Articles of Association.  It is therefore not subject to the controls imposed by the building lines and other development controls; that the structures complained of do not constitute a nuisance to the applicant, neither do they impact and infringe significantly on applicant’s use and enjoyment of his property, and have not caused derogation in value of applicant’s property; that the structures are not in breach of the third respondent’s lease; that to the extent that the tennis court failed to adhere to the applicable building lines, which is minimal, both the second respondent and the fourth respondent had relaxed the building lines in respect thereof, as they are entitled to do; the second and the fourth respondents have not breached any contractual obligations; that annexure “AA4”, to the second respondent’s answering papers is proof that the plans of the third respondent were in fact approved by the fourth respondent – contrary to the applicant’s assertions; that the fourth respondent subsequently adopted a rule prohibiting playing of tennis after 21h00, and was presently considering introducing rules and regulations concerning the diffusion of tennis court lights, as well as other measures to prevent them from interfering with neighbouring properties;  and that the applicant’s reference to the approval of plans in respect of Baker’s property by the Johannesburg City Council (fifth respondent) was irrelevant since the applicant does not seek to review and set aside any approval/s by the fifth respondent.  In fact, as stated earlier in this judgment, the applicant seeks no relief against the fifth respondent.  Finally, the second respondent expressed the view that the applicant’s attitude to expect the third respondent to spend some R15 000,00 to defuse the effect of his lights on the applicant’s house is unreasonable.  The reason being that the applicant himself could achieve exactly the same effect by simply inserting blinds and/or curtains in the appropriate windows.

[37] The applicant filed replying affidavits to the answering affidavits.  The third respondent also filed a supplementary founding affidavit.  The result was a bulky bundle of papers comprising of some 1 272 papers, inclusive of the transcript of the proceedings, heads of argument and supplementary heads of argument.  There was no real objection to the third respondent’s supplementary affidavit. It was also agreed that the third respondent would not persist in the application to strike out certain further evidence elicited by his supplementary affidavit. I have had regard to all the papers.

[38] At the commencement of argument, it was agreed that the point in limine raised by the second and third respondents in terms of Uniform Rule 6(5)(d)(iii), i.e. that the applicant’s relief for review was premature and incompetent, be argued simultaneously with the merits.  The third respondent in addition, raised the argument that in the light of the presence of disputes of fact on the papers, which disputes ought to have been foreseen by the applicant, the present application called to be dismissed.  It is convenient to deal first with the former preliminary point as well as the applicable legal principles.

[39] In raising the first point in limine reliance was placed on Valentino Globe BV v Phillips and Another.[20]  The pertinent question that arose is whether the decision of the second respondent to approve plans constitutes administrative action under PAJA. Section 1 of the latter, provides that:

“’administrative action’ means any decision taken, or any failure to take a decision, by –

(a) an organ of state, when –

(i) exercising a power in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision,

which adversely affects the rights of any person and which has a direct, external legal effect …”

See also Cora Hoexter,[21] where it is suggested that juristic persons, other than organs of state, are also capable of ‘exercising a public power or performing a public function in terms of an empowering provision’.

[40] In South African Jewish Board of Deputies v Sutherland NO and Others,[22] it was held that the first respondent’s decision in terms of para 1.16 of the Complaints Procedures (the Complaints and Adjudication Procedures determined by the Broadcasting Monitory and Complaints Committee (BMCC) pursuant to the powers contained in it by s 63(5) of the Independent Broadcasting Authority Act 153 of 1993, and published under Government Notice 779 of 2002 in Government Gazette 23444 of 22 May 2002) to refuse to convene a formal hearing to consider the complaint amounted to ‘administrative action’ for the purposes of s 33 of the Constitution.  See also Walele v City of Cape Town and Others,[23] where it was held, inter alia, that:

“There can be no doubt that when approving building plans, a local authority or its delegate exercises a public function constituting administrative action …”

The other relevant and applicable provisions of PAJA have already been referred to earlier in this judgment.

[41] Based on the above legal principles, it has been argued by the second and the third respondents, and quite correctly so in my view, that, the approval of building plans by a juristic entity such as the fourth respondent would constitute administrative action as contemplated in PAJA, and that the requirements necessary to render the approval are present.  The powers of the fourth respondent when it approves building plans and other activity within the Estate, are similar in nature to those exercised by the fifth respondent (the Municipality) when it approves building plans in terms of the Building Standards Act. The rational for this is that the powers of the fourth respondent are therefore, in essence, pertaining to the approval of plans, public in nature.  Its Articles of Association, read with the rules by the directors, equate to an empowering provision for the purposes of PAJA, and the rights of all lessees in the Estate are directly and legally affected. If this interpretation and finding on the provisions of PAJA are correct, then the applicant was obliged to bring this review application without any delay.  It had to do so before the third respondent had proceeded and incurred the expense of completing the alleged unlawful structures, which would have been reasonable in the circumstances.  PAJA requires that the applicant should have applied to review the approval of the plans within a reasonable time.  He did not do so. He instead waited for almost 18 months before launching the present application insofar as it pertains to the tennis court and the floodlights and for almost 30 months insofar as the retaining wall was erected.  These structures were erected right under his nose.  His contentions to the contrary, as well as the reasons therefor as contained in the replying papers, were not convincing at all.

[42] In any event, even if the provisions of PAJA, are inapplicable, the applicant’s attitude and contentions would play foul to the requirements of the common law, which procedure was available to him.[24]  This would be problematic for a variety of reasons.  These include that a review under the common law remains a discretionary remedy. It may, depending on the circumstances, be refused if the applicant delays unduly in bringing the application.  Judicial review is important since it ensures that finality is achieved in administrative matters.  See in this regard Yuen v Minister of Home Affairs,[25] and Wolgroeiers Afslaers v Munisipaliteit van Kaapstad,[26] where the Court said:

“Dit is wenslik en van belang dat finaliteit in verband met geregtelike en administratiewe beslissings of handelinge binne redelike tyd bereik word.  Dit kan teen die regspleging en die openbare belang strek om toe te laat dat sodanige beslissings of handelinge na tydsverloop van onredelike lang duur tersyde gestel word …”

It is equally trite that review proceedings must be brought within a reasonable time, and what constitutes ‘reasonable time’ will depend on the peculiar circumstances of each case.  On the credible facts of the present matter, the applicant delayed unduly. After he became aware of the raising of the level of the ground, he allowed the third respondent to complete the retaining wall, the tennis court, and the floodlights at considerable expense prior to launching this review application.  He has rather strangely not applied for condonation.

[43] What is stated in the preceding paragraph, however, is not the end of the applicant’s problems in seeking review relief.  In argument, the applicant expressly abandoned prayer 1 of his notice of motion in which he sought an order declaring the approval/s of the third respondent’s building plans invalid and setting them aside.  This was done on the basis that:

“A declaratory was sought in the notice of motion as a precaution, in case any approval of the unlawful structures had been granted.  It transpires that there was in fact no approval for the unlawful structures (i.e the structures in issue as they are built-as built).  A declaratory order is therefore neither appropriate nor necessary in the circumstances. In any event, this Honourable Court has inherent jurisdiction to issue declaratory orders in appropriate circumstances. Such jurisdiction cannot be and has not been ousted by PAJA.”[27]

This change in stance ignored to deal with the fact that both the second and the third respondents contended that, save for a minor re-orientation of the tennis court, the third respondent’s plans were approved by the fourth respondent.  The finding that review proceedings are not competent under neither PAJA nor the common law, was therefore fortified.  In the light hereof it was unnecessary to determine the other point in limine to the effect that there are disputes of fact in the papers save as mentioned briefly later herein below.

[44] However, if I am incorrect in my determination of the preliminary point as above, I still am of the view that the applicant should not succeed on the merits of his application either. I deal first with the arguments advanced on behalf of the first respondent.

[45] As mentioned above, the applicant appears to seek specific performance of certain contractual obligations which he contends are owed to him by the first respondent, the second respondent, the third respondent and the fourth respondent.  This, he said in the founding affidavit, is in terms of, “… the suite of contracts governing the respective parties’ rights and obligations regarding the use and development of land situated within …” the Estate.  The suite of agreements in terms of which the applicant seeks specific performance consists of:

45.1 the LAA and the Main Lease Agreement (“MLA”) concluded between the Freehold Owner (“the first respondent”) and the second respondent;

45.2 the 99 year lease entered into between the first respondent and the third respondent;

45.3 the Handbook and Rules which incorporate the Guidelines; and

45.4 the Articles of Association of the fourth respondent.

[46] As observed by the participating respondents, the applicant described the various agreements mentioned above as being interrelated. The claim to specific performance is therefore based on the premise that any person acquiring property within the Estate in terms of a 99 year lease (as all homeowners are) also acquired the right to insist that all other parties to the suite of agreements ought to comply fully with each of them.

[47] The history of the matter, and of the Estate, the involvement and roles of the various parties have already been sketched earlier in the judgment.  What required reminding is the role of, in particular, the first respondent, as well as the fact that the applicant is not a party to the third respondent’s lease, and vice versa.  In deciding the matter correctly, this Court is called upon to consider the proper approach in interpreting written agreements, which principles I deal with immediately below. 

[48] In Natal Joint Municipal Pension Fund v Edumeni Municipality,[28] Wallis JA said:

“Interpretation is the process of attributing meaning to words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence.  Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provisions appears;  the apparent purpose to which it is directed and the material known to those responsible for its production.  Where more than one meaning is possible each possibility must be weighed in the light of all these factors.  The process is objective, not subjective.  A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermine the apparent purpose of the document.”

At para [25] of the judgment, the learned judge went on to say that:

“… Sometimes the language of the provision, when read in its particular context, seems clear and admits of little if any ambiguity.  Courts say in such cases that they adhere to be ordinary grammatical meaning of the words used.  However, that too is a misnomer.  It is a product of a time when language was viewed differently and regarded as likely to have a fixed and definite meaning;  a view that the experience of lawyers down the years, as well as the study of linguistics, has shown to be mistaken.”

At para [26] of the judgment, the learned judge went further on to say that:-

“In between these two extremes, in most cases the court is faced with two or more possible meanings that are to a greater or lesser degree available on the language used.  Here it is usually said that the language is ambiguous, although the only ambiguity lies in selecting the proper meaning (or which views may legitimately differ).  In resolving the problem, the apparent purpose of the provision and the context in which it occurs will be important guides to the correct interpretation.  An interpretation will not be given that leads to impractical, unbusinesslike or oppressive consequences or that will stultify the broader operation of the legislation or contract under consideration.”

In addition, as to the new approach to interpretation of contracts, and the often quoted, “golden rule of interpretation”.  See Bothma-Batho Transport (Edms) Bpk v S Bothma en Seun Transport.[29]

[49] Having regard to the above principles. The history of the Estate, its purpose, the roles of the respective parties, and the circumstances of this matter, it is proper and correct and indeed instructive to adopt the new approach to the interpretation of the various written agreements in this matter. In doing so, a careful scrutiny of the relevant and various agreements shows, that they provide a comprehensive delineation of the respective rights and obligations of the different parties.  As regards the first respondent in particular, its contentions that, properly interpreted, the agreements provide that the first respondent’s obligations are limited to concluding lease agreements and making the leased land available, are correct.  The first respondent has no obligation owing to the applicant to enforce the terms of the third respondent’s lease against the third respondent.  As stated earlier in the judgment, the first respondent, as owner, is not involved in the day-to-day operation of the Estate.  It is also not involved in the approval of building plans, and disputes that arise between various lessees, the second respondent, and the fourth respondent.  Both the applicant and the third respondent have concluded leases on the same terms, i.e. the Standard Lease Terms as contained in the LAA.  The first respondent is not in possession of the alleged unlawful structures, and it cannot simply demolish these structures.  For these reasons, the relief claimed against the first respondent, in its passive role, ought to be dismissed.

[50] It is my view that for substantially the same reasons stated above, the relief sought against the second respondent, as developer, should not be granted as well.  The untenability of the applicant’s attempts on, and enforcing the various agreements has been dealt with. In addition, the only parties to the LAA and the Main Lease were the first and second respondents. The obligations created, and undertakings given therein to one another were clearly for the benefit of the parties thereto.  There is no basis upon which it can be argued that the applicant, or any other lessee for that matter, in the Estate has any right to the enforcement thereof, or any interest therein.  As argued by the second respondent, whilst it is correct that each 99 year lease enjoins the lessee to use the property in question in a particular manner and to conform to the theme, the rules and regulations of the Estate, no undertaking is given therein that all of the leases will impose the identical obligations on all other lessees in the Estate.  There is, therefore, no obligation under any particular 99 year lease on the first respondent or the second respondent to enforce the provisions of any other 99 year lease for the unwarranted benefit of the applicant.  The formation of the fourth respondent as well as the requirement that all lessees in the Estate become members thereof was the chosen mechanism by the first respondent and the second respondent in order to ensure the proper development, control and the administration of the Estate.  As stated above, the third respondent’s plans were approved by the fourth respondent. Once this occurred, the third respondent in essence, had complied with the rules of the fourth respondent.  This included his obligations in terms of his own 99 year lease and to develop his property in accordance with the dictates of the theme and building requirements of the Estate.

[51] On the basis of the above, there was actually no need to consider whether or not the plans had in fact been approved.  This will be a matter to be pre-eminently considered in an application for review launched properly and within a reasonable time.  Indeed, the fourth respondent’s attitude in this matter by consenting to the relief claimed by the applicant, suggested to me that it was still amenable to entertain any competent review by the applicant.  However, it was unnecessary for me to make a definitive finding in this regard.  The second respondent, in any event, denied that the third respondent’s plans were not approved by the fourth respondent.  The applicant contended that the raising of the ground level on the third respondent’s property constituted a breach of the fourth respondent’s rules, but he has failed, however, to show that any such rule or prohibition was in place.  According to the second respondent, the raising of the ground level on the third respondent’s property was no more or less than a mere cut and fill operation which, owing to the slope of the land, was necessary for the construction of the third respondent’s house.  This was a reasonable explanation.

[52] I turn to the applicant’s claim that the alleged unlawful structures constitute a nuisance to him and ought to be demolished.  Alternatively, that the said structures, the floodlights and poles erected thereon be demolished, alternatively, removed.  I have already dealt in part about the impropriety of the relief in the form of specific performance claimed by the applicant.

[53] The applicant, in the process of alleging unlawfulness, made reference to legislation and by-laws.  He, however, failed to identify what statutes are in fact applicable.  The third respondent, on the other hand, has identified the Building Standards Act (supra).  In terms of the latter Act, the construction of a tennis court is specifically excluded from the definition of “building” as it appears in sec 1 thereof.  In addition, on behalf of the third respondent, Sasha Komadinovic, a town planner, specialising in town planning, filed a confirmatory affidavit,[30] confirming that:

53.1 a tennis court is not a structure and therefore only its footprint need be indicated on the building plans. This is endorsed in annexure “J” to the third respondent’s affidavit; and

53.2 the Town Planning Department does not require plans for either a tennis court or floodlights. It is undisputed that even if the tennis court or the floodlights constituted a structure, and even if their erection was unlawful, the applicant has no locus standi to seek its demolition. It can only be the fifth respondent, in enforcing a by-law or regulation, that is vested with the necessary power to direct compliance with the legislation.

[54] As correctly argued by the third respondent, the applicant’s assertion that the erection of the tennis court constitutes a breach of the suite of agreements, referred to above, was untenable in the extreme.  The erection was expressly granted by the second respondent. The second respondent confirmed this, and its other objective manifestation is identified in annexure “J”.  This is clearly not a case where the structures were erected without approved plans.  In this regard compare the most recent decision in Lester v Ndlambe Municipality,[31] where the building plans were obviously not approved by the Municipality.  See also Berg River Municipality v Zelpy.[32]

[55] In the present matter, the circumstances surrounding the commencement, duration and completion of the erection of the structures were fully set out above.  It can easily be argued in favour of the third respondent that even if the tennis court was not erected in accordance with the precise plan approved by the second respondent, the latter was at all relevant times aware that the tennis court had been erected in the manner in which it was.  The second respondent went further to say that in the exercise of its discretion under clause 20 of the rules and regulations contained in the “Architectural and Landscaping Guidelines”, it was empowered to do so.  Clause 20 provides as follows:

“20. GENERAL

The Aesthetics Committee will in absolute discretion, be entitled but not obliged to waive any of these guidelines but any waiver granted shall not constitute a precedent which will automatically be applicable to any other homeowner(s). Homeowners must be members of the Home Owners Association.  During the development period, the developer shall be entitled in its absolute discretion to amend these guidelines from time to time.  Should at any time any dispute arise relating to the application or implementation of these guidelines the Aesthetics Committee and/or the development company’s decision shall be final and binding on the parties concerned.  These guidelines may not be amended by the Home Owners Association in future without the development company’s written consent.”

[56] It is significant that the applicant in his founding papers identified and incorporated these guidelines, but omitted to incorporate as well the above quoted paragraph especially towards its end.  It is clear from the above provisions that the second respondent has a discretion to allow non-compliance with the rules and regulations.  To the extent that the third respondent has not complied with the guidelines, it appears that this is exactly what the Aesthetics Committee has done.

[57] The second respondent confirmed, as stated elsewhere, that the tennis court has been erected substantially in accordance with its approval as described on annexure “J”, subject only to a minor and insignificant deviation.  This is that, the tennis court has been swung 17 degrees so that it aligns more closely with the north south axis and it now runs parallel to the eastern boundary of the third respondent’s property.  The result is that we are here concerned with, not an unlawful structure as was the case in Lester v Ndlambe Municipality (supra).  Neither do we have a massive encroachment onto the applicant’s property, as was the case in Trustees of the Brian Lackey Trust v Annandale.[33]  In that case, the Court dealt extensively with the question whether it had a discretion to permit the plaintiff to retain the structure against compensation to the defendant.  The plaintiff had begun to build a substantial luxury dwelling that was supposed to straddle the plaintiff’s erven.  It was later discovered that the structure had rendered the defendant’s property completely useless.  The defendant claimed an order for the removal of all the portions of the building and the restoration of the property to its original state. The Court also had to determine whether a massive encroachment inadvertently erected by the plaintiff on the defendant’s land ought to be demolished.  In deciding against a demolition order in favour of compensation, the Court at paras [40] to [43] of the judgment said:

“[40] I am fortified in this conclusion by the rules and principles of neighbour law, which place certain restrictions on the unencumbered exercise of powers of ownership.  Neighbour law is aimed at achieving harmony in the relationship between neighbouring landowners in the case of conflicting ownership interests.  Considerations of reasonableness and fairness are prominent factors in the exercise of the court’s discretion in this field.  Unfortunately, these qualities of reasonableness and fairness have been sadly lacking in the relationship between these parties thus far.  It would certainly bode ill for their long-term relationship as neighbours, were the defendant to succeed in the present application for complete demolition of the plaintiff’s home.  This a further consideration, in my view, why it would be better to sever their relationship as potential neighbours at this point.

[41] Closely connected with the previous point, is the consideration that a court should be most reluctant to order demolition where it knows that the innocent party was in fact prepared to accept monetary compensation. On the evidence of this case, the inference is irresistible that the defendant was prepared to accept monetary compensation for his erf and that he attempted to use his superior bargaining position in an endeavor to extract from the plaintiff a much higher amount than he was entitled to.  It stands to reason that he would be in an even stronger position to continue doing so if he were to be armed with a demolition order. This was the precise concern expressed by the South African as well as the English courts and on the basis of which those courts considered themselves empowered to exercise the discretion not to order removal of an encroachment.  In De Villiers v Kalson Graham JP put it as follows:

‘It is quite true that for the reasons stated in so many of the English cases, the wrongdoer who encroaches on another’s rights cannot be heard to say, unless there are some very special circumstances, that a monetary compensation is sufficient, for that would be tantamount to compelling the Plaintiff to consent to expropriation.  But on the other hand it would be equally inequitable to place the Plaintiff in a position to extort wholly excessive compensation from the Defendant by granting an order for the removal of the buildings in cases in which the facts disclose that a remedy in damages would fully meet the justice of the case.’ (my emphasis)

[42] In my view, granting a demolition order in favour of the present defendant would have precisely the above-mentioned effect.  It would indeed ‘… deliver [the encroacher] to the [encroachee] bound hand and foot to be subjected to any extortionate demands the [latter] might make’, as Millett LJ put it so graphically in Jaggard v Sawyer.

[43] In the final analysis, the defendant’s attitude and his counter-claim in these proceedings are based on anachronistic concepts of ownership:  it represents a rigid and dogmatic insistence upon his perceived absolute rights as owner, irrespective of broader considerations of social utility, economic waste and neighbourliness.”

[58] The approval of the plans by the second respondent must be seen in the light of the circumstances of the erection alluded to previously, as well as what appeared to be reasonable and legitimate steps taken by the third respondent in having the tennis court approved.  These steps were sketched earlier in the judgment.  In any event, even if the structures and tennis court were erected without approved plans, this Court, in the exercise of its discretion, based on the principles set out in the Trustees of the Brian Lackey Trust (supra) would be loathe to order demolition. See also Benson v S A Mutual Life Insurance Society.[34]

[59] The third respondent denied that the structures complained of are either a nuisance, unsightly or objectionable.  He attached supporting affidavits from neighbours who are affected by the floodlights when tennis is played at night, and the steps they took to defuse the effect thereof.  The third respondent spent in excess of R700 000,00 in laying the surface and erecting the tennis court. The demolition would now create havoc to the third respondent’s property, to say the least.  The applicant has rejected suggestions made to him to install curtains in the areas where the lights come in when tennis is played at night.  In addition, both the second respondent and the third respondent have tendered to abate any alleged nuisance which the applicant may suffer.  This too, has been rejected out of hand by the applicant.  This, in my view, was unreasonable on the part of the applicant.  It is rather significant that in the supplementary affidavit, the third respondent revealed that, the applicant, as recent as April 2014, advertised his property for sale. The asking price was R22 m.  In response, the applicant confirmed this. He, however, contended that he was merely testing the waters to see what price he would be able to get for his home.

[60] The applicant has not made out a case for the relief he claims in its present form.  The judgment in Prinsloo v Shaw,[35] on which the third respondent also relied, makes clear the proposition that in cases of alleged actionable nuisance, the usual course is to grant a temporary interdict, pending action, this is particularly so since on the common cause facts in this present matter, tennis courts are entitled to be erected on the Estate. The playing of tennis is permitted until 21h00. This was in terms of a resolution of the fourth respondent taken on 19 February 2014.

CONCLUSION

[61] For all the aforegoing reasons, I have come to the conclusion that the applicant has failed dismally to make out a case for the relief claimed against the respondents including the fourth respondent, and despite its stance in the matter. To the extent that there existed factual disputes, these must be decided on the version of the respondents.  The version of the applicant is so untenable in the circumstances that the robust approach to a matter of this nature as enunciated in Soffiantini v Mould,[36] was justified.  The application on the merits must also fail.

COSTS

[62] I deal with the question of costs.  There was no credible reason advanced why the costs should not follow the result. This is a discretionary matter in any event. However, there are several reasons to justify costs on a higher scale in the circumstances of this matter.  As stated earlier in the body of the judgment, the papers in this matter were voluminous and prolix.  There was also substantial irrelevant and/or repetitive matter in the applicant’s papers. The respondents who participated were put to the unnecessary inconvenience and expense of responding to those affidavits in papers which were similarly bulky.  The applicant deemed it fit to join as respondents in the application, the first respondent and the fifth respondent who, jointly would not have had a genuine interest in the application under circumstances where relief could not be sought against them.  All of these, had the inevitable result that the preparation and handing down of judgment was delayed slightly.  For all these reasons, including that the application should never have been brought in the first place, an order of costs on the attorney and client scale would be appropriate.  The second and third respondents argued for costs on the scale as between and own client, for which I could not find sufficient justification.

ORDER

[63] In the result I make the following order:

1. The application is dismissed with costs, including costs previously reserved.

2. The costs shall be on the scale as between attorney and client.

__________________________________________

D S S MOSHIDI

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

COUNSEL FOR THE APPLICANT: M D COCHRANE

INSTRUCTED BY: COWAN-HARPER ATTORNEYS

COUNSEL FOR THE FIRST RESPONDENT: Q G LEECH

INSTRUCTED BY: CLIFFE DEKKER & HOFMEYR INC

COUNSEL FOR THE SECOND RESPONDENT: G F PORTEOUS

INSTRUCTED BY: FLUXMANS ATTORNEYS

COUNSEL FOR THE THIRD RESPONDENT: M M SEGAL

INSTRUCTED BY: SCHOONEES, BELLING AND GEORGIEV

FOURTH RESPONDENT’S ATTORNEYS: GASCOIGNE RANDON AND ASSOCIATES

DATE OF HEARING: 29 TO 30 JULY 2014

DATE OF JUDGMENT: 5 DECEMBER 2014

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