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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NUMBER: 09278/16

Not reportable

Not of interest to other judges

Revised.

29/3/2018

In the matter between:

SUSAN CAROLINE OCHSE                                                                                 Applicant

and

WINSTON MARCUS KGAUDI MATLALA                                               First Respondent

BRIDGETTE LERATO MATLALA                                                           Third Respondent

 

JUDGEMENT

Molahlehi J

Introduction

[1] This matter comes before this court on the return day of the interim order made by Matojane J on 1 March 2016 in terms of which the respondents were interdicted and restrained from commencing or proceeding further with the construction of their house, before the finalization of this application.

[2] The final interdict which the applicant seeks in these proceedings is to prevent the first and second respondents Mr and Mrs Matlala from continuing with the building of their house pending compliance with the following conditions:

1. Constructing the retaining boundary walls on a subdivided portion of the land, i.e. Portion 1

2. Excavating further on Portion 1 to ensure that the top of the proposed basement level of their house does not extend higher than the natural ground height.

[3] The respondents opposed the application and further filed a counterclaim. The dispute between the parties arose subsequent to the sale agreement of a piece of land belonging to the applicant.

 

The applicant's case.

[4] The essence of the applicant’s case concerns the enforcement of the agreement concluded between the parties, and relates mainly to the interpretation of clause 4.7.1.1 including 4.8 and 4.9. of the agreement.

[5] During 2014 the applicant successfully applied to the Johannesburg Metropolitan Municipality for the subdivision of the property Erf 1148 Feinstein, Gauteng Province situated at 55 Stockton Ave., Craynston Sandton (the property). Before the division, the property measured 41285m² in extent with the applicant's house constructed on the western side of the property. The applicant sought the subdivision of the land because she wanted to sell Portion 1 and continue to stay on the remainder. She ultimately achieved her objective and sold Portion 1 to the respondents.

[6] The basic principles that inform the agreement from the perspective of the applicant are the following:

(a) the importance of privacy and security of her property in relation to the house which the respondent was still to build, and

(b) that Portion 1 of the property was sold on conditions that her safety and privacy requirements were accommodated which included restricting  the height of any house to be built on Portion 1 and the building of common boundary walls.

[7] The respondents informed the applicant during the negotiations that they had already designed a three-story house plan which they intended building on Portion 1. The plans were shown to Mr Dodd, the applicant's architecture, who was also introduced to the respondents by the applicant to consider the plans and advice on whether they meet the above requirements.

[8] After considering the plans, Dodd sent an email to the respondents advising them that:

(a) he had overlaid the outline on Portion 1 and rotated it to obtain maximum privacy, both for the purchaser and for the applicant.

(b) It was possible to build the house designed by the respondents on Portion 1, with some modification.

[9] During November 2014 Dodd sent to the first respondent an e-mail containing a cross-section diagram in which he indicated how the respondent’s three-story house could be accommodated on Portion 1. The cross-section diagram became an annexure “B” to the purchase and sale agreement between the parties. This diagram shows the following:

“16.4.1 the natural ground level;

16.4.2 the swimming pool (“pool”) that I proposed building on my property adjacent to the boundary between my property and Portion 1, including the landfill between the pool and the western boundaries;

16.4.3 the indicate if floor levels and heights of a three-story house on Portion 1, relative to the natural ground level and to my property. (including the existing buildings and the pool) ;

16.4.4 that the lower story of the house on Portion 1, i.e. the garage level, would be almost entirely below the natural ground level as indicated at the western boundary.

[10] On 24 November 2014 the applicant's husband addressed an email to the respondent and stated that:

"The bottom line is that we don’t want to sit behind a 3 story house. We’r going to lose too much of the morning sun and even with your balcony walled in for privacy we’ll still be looking directly onto the top four of your house. I think too that you’d simply be looking on to our Northern neighbours and get more traffic noise.

It also doesn't really fit into the village – there is no house on Stratton Avenue higher than 2 stories. I walked up and down yesterday morning to make sure.

I don’t know enough about your plans but if you could move the garages to the side so that you only need 2 floors then no problem.”

[11] As indicated earlier in this judgment, the parties concluded the purchase and sale agreement during November 2014. After that, the applicant constructed the swimming pool on the Maiden portion during February 2015 along the boundary of the two properties.

[12] During January 2016 the respondents commenced with excavating and levelling works on their property being Portion 1.

[13] There is no dispute concerning the plans which the respondents intended using to build their house. As indicated earlier this is a three-story house whose plans have also been approved by the municipality.

 

The case of the applicant

[14] The applicant's case is based on seeking to compel the respondents to comply with the terms of the agreement, and in particular, clause 4.7 read with Annexure “B” attached to it.

[15] The relevant sub-clauses of clause 4.7 of the agreement for the purpose of this judgment read as follows:

“4.7.1 The parties will agree and procure –

4.7.1.1 that the Floor level of the Basement/Parking level of the PURCHASERS’ house is dug out to be 1m lower than that measured/contemplated in the North-South cross section (the reference to North-South is erroneous and should read East-West) provided by Alan Dodd (ANNEXURE “B”). i.e. That the top of this Basement/Parking level is no higher than ground height on the Eastern side of the shared boundary wall.

4.7.1.2 on the western boundaries (lettered DA on the Sub-divisional Diagram) of the Land, the construction of an engineer – approved retaining wall and a wall subject to the following –

4.7.1.2.1 the retaining wall will be built on (i.e. extend into) the Land, and not into the remaining extent of the Maiden Property;

4.7.1.2.2. The wall shall be –

4.7.1.2.2.1 in keeping with the existing boundary walls of the Maiden Property, in terms of construction, materials and aesthetics and

4.7.1.2.2.2 no less than 3m high, but no more than 4m (as measured above the height of the top level of the deck on the Maiden Property)

4.7.1.2.3 and the purchaser will procure that all second story windows or balconies of the dwellings constructed on the land, which windows or balconies face the aforesaid Western Boundary and/or form which there is a line of sight into the (remaining extent of the) Maiden Property, are frosted/screened off (or otherwise rendered translucent) to permanently obscure vision and protect the privacy of (the remaining extent of) the Maiden Property."

[16] The construction of the house of the respondents is dealt with in clause 4.9 and the relevant sub-clauses thereof, reads as follows:

4.9.1 The PURCHASER will not procure, authorize or allow any construction works (including clearing and levelling) to commence on the land until the matter contemplated in clause 4.3, 4.7 and 4.8 have been completed. In this regard (but without derogating from the generality of the aforegoing) the PURCHASER will not procure, authorize or allow any such construction works to commence unless and until the SELLER, acting reasonably, is satisfied that (the remaining extent of) the Maiden Property is properly secured in respect of wall/fencing, security systems (alarms, CCTV, electric fencing etc.) and access.

4.9.2 The PURCHASER agrees that the following building construction work related to the sub-division process will be completed before the maiden portion can be totally walled off and construction of the PURCHASERS residences begin:

4.9.2.1  the moving of services to underneath the new driveway of the Maiden Property, including removal of prior surfaces, digging of trenches, installation of pipes, conduits and cables, the creation of a new entrance to Stratton Ave, the installation of an electric gate and related security/intercom equipment, and the connection of the Maiden Property to the services at street level; and

4.9.2.2 the destruction of the existing pool on the Maiden portion including the draining thereof, the removal of fittings and cables, the destruction thereof and the earthworks required to fill in the existing pool and compensate for this in the landscaping of the garden. Specifically, this must be achieved to the level that the balance of the work can be carried out manually using access from the street without additional delay or cost to the project; and

4.9.2.3 the construction of the new 25m pool on the side of the wooden deck on the Maiden portion, including digging of the hole, construction of walls and bottom of pool, earthworks/packing of soil around shell/between boundary wall and pool, to the degree that the balance of the work can be carried out manually using access from the street without additional delay or cost to the project.

The respondents’ case

[17] In addition to opposing the applicant’s claim the respondents filed a counter claim which was opposed by the applicant.

[18] In the counterclaim the respondents seek an order declaring that they are not required to continue excavating on Portion 1 of the property for the purpose of constructing the basement of their residence and the retaining wall on the western boundary in accordance with clauses 4.7.1.1 and 4.7.1.2 of the agreement.

[19] The respondents further seek an undertaking from the applicant that they would be liable for the following:

a. Construction of a gravity retaining wall on the western boundary of the property,

b. All site investigations and soil studies for the design and construction of the gravity retaining wall on the western side of the property.

c. Any loss or damage to the swimming pool arising from the construction of the gravity retaining wall on the western side of the property. 

[20] In paragraph 82 of the founding affidavit in the counter claim the respondents state the following:

“82. For purposes of putting an end to this litigation and allowing me to continue building my new residence, I am prepared to accept the following:

82.1 that the ground height referred to in clause 4.7.1.1 of the agreement is the natural ground level as measured by the applicant's land surveyor; and

82.2 that the top of my basement should be no higher than the height of the new pool is currently constructed on the applicant's property, rather than the height of the old pool deck as contemplated in the agreement."

[21] In my view there is nothing in the proper reading of clause 4.9.1 of the agreement that prohibits the appellant from constructing her swimming pool before the respondents commences with the building of their house. It is quite clear, as will also appear later in this judgment that the respondents were not supposed to commence with the construction of their house before constructing the retaining and the boundary wall.

[22] It would appear from the reading of the founding affidavit of the respondents in the counter claim that what they seek is to have the agreement amended or rewritten for them and the applicant to in essence accommodate their failure to comply with the terms of the agreement. It also appears that they are seeking the amendment or re-writing of the agreement on the bases that they did not anticipate the heavy costs they would incur in complying with the agreement. Their other complaint is that it has now become burdensome financially to comply with their obligations in terms of the agreement of building the boundary and the retention walls.

[23] It follows from the above discussion that the respondents’ counter claim bears no merits and thus stands to fail.

[24] The respondents’ case is that the top of the basement of the house must be higher than the ground level of the applicant's house. In the initial answering affidavit they did not contend for a different interpretation to clause 4.7.1 of the agreement referred to above. They contend that that clause should be struck out for vagueness. However, in the supplementary affidavit, without indicating where they stood on the issue of the alleged vagueness of the agreement, they took an about turn and contended that the clause refers to the visual ground height.

Evaluation

[25] The principles governing the interpretation of contracts or any other document is set out by the Supreme Court of Appeal in Bothma-Batho Transport v S.Bothma & Seun Transport,[1] as follows:

“[10] In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at [18] the current state of our law in regard to the interpretation of documents was summarised as follows:

‘….The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the 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 provision 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 undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context, it is to make a contract for the parties other than the one they in fact made. The inevitable point of departure is the language of the provision itself'', read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”

[26] In G4s Cash Solutions v Zandspruit Cash And Carry (Pty) Ltd and Another (852/2015) [2016] ZASCA 113; 2017 (2) SA 24 (SCA) (12 September 2016) the court said:

“[13] As recorded above, the special plea was determined separately and at the hearing, neither party presented any evidence. In the result, no facts were available to the court in the interpretative process regarding the circumstances surrounding the conclusion of the agreements or of any relevant subsequent conduct of the parties. The only available evidence upon which the court had to determine what the parties meant to achieve by incorporating clause 9.9 in the agreements, and in particular whether or not they intended including delictual claims within the ambit of clause 9.9, was the agreements themselves. Whilst it is not for the court to prescribe to litigants whether or not, or to what extent, they should present evidence, it seems to me that a party bearing the onus in a dispute regarding the proper interpretation of a contract, should bear in mind that to simply rely on a linguistic interpretation alone may not suffice to discharge the onus. Therefore, if available, relevant evidence regarding the factual matrix in which the contract was concluded and the subsequent conduct of the parties, should be called in aid of the interpretative process.”

[27] The contention of the respondents that clause 4.7.1, is vague and difficult to comprehend bears no merit when regard is had to the common course or undisputed facts of this case. It is evidently clear that the parties had agreed to include that clause in their agreement together with Annexure “B.” It is also undisputed that at the time of the conclusion of the agreement that references to ground height would have been about the natural ground height. At the time there had been no cutting and filling of the soil. The applicant’s pool and the pool deck had not been constructed.

[28] In my view, there is in the first instance no basis for holding that clause 4.7.1.1 is unenforceable for vagueness. And secondly, in giving effect to the clause, it means that the top of the basement/parking level could not be higher than the natural ground height as appears in annexure “B”. This means that the respondents in building the house are not permitted to construct it in a manner in which it would protrude above the natural ground level. Concerning clause 4.7.1.1 the floor level of the basement level has to be dark out 1m lower than contemplated in annexure “B”.

[29] The agreement at clause 4.7.1.2 requires that a retaining wall approved by an engineer is to be built on Portion 1 and further provides that the wall shall not be less than 3m high, but not more than 4m above the height of the top level of the deck on the applicant's property.

[30] It was argued on behalf of the respondents that the applicant was not allowed in terms of the agreement to construct a swimming pool until such time that the respondents had erected a retaining wall.

[31] I am in agreement with the applicant that that interpretation is unsustainable because it introduces uncertainty in the reading of the agreement. The uncertainty would arise because the applicant would not have known as to when the respondents would be building the retaining wall.

[32] The land surveyor, Mr Coulthard, in his supporting affidavit states the following in paragraph 4 of his affidavit:

“In terms of the survey conducted (and I refer to my survey plan attached hereto) I have determined, and I hereby confirm, that:

4.1 the height of the pool is 1492.98 meters above sea level (“MSL”)

4.2 the natural ground level (height) at approximately the center of the western boundary of Portion 1, is 1491.18 MSL, which is 1.8 meters below the height of the pool;

4.3 the levelling which has taken place on portion is uneven, being:

4.3.1 1489.56 MSL at its highest point, which is 3.42 meters below the height of the pool; and

4.3.2 1488.41 MSL at its lowest point, which is 4.57 meters below the height of the pool.

[33] He then on the basis of the above concludes:

“5.2  On the basis of the heights and measurements surveyed by me as stated  in paragraph 4 above, I can provide the following measurements and conclusions:

5.2.1 the floor of the basement should be no higher than 1488.12 MSL, taken from the height of the pool, less 1.8 meters (to natural ground level),  less a further 3.06 meters (the height of the basement)

5.2.2  Portion 1 would need to be excavated by a further:

5.2.2.1 1.94 meters at its highest point, excluding foundations; and

5.2.2.2  0.79 meters at its lowest point, excluding foundations

[34] The respondents have neither challenged the qualification nor the experience of Mr Coulthard. They have also not challenged his measurements. It follows therefore that the respondents are required to further excavate Portion 1, so that the floor of the basement, excluding foundations, is no higher than 1488.12 MSL which is 4.86m below the height of the swimming pool. This means that in terms of the level excavated at the time of this application the respondents are required to excavate Portion 1 by between 1.94m at the highest excavated point and 0.79m at the lowest excavated point.

[35] In my view, the applicant has satisfied the requirements for a final interdict. The requirements for a final interdict are well known in our law, and this essentially means that the applicant has to show: (i) a clear right; (ii) interference with the right; (iii) apprehension of irreparable harm and; (iv) absence of alternative remedies.

[36] As concerning the requirement of a clear right, there can be no doubt that the applicant acquired such a right which she is seeking to enforce from the agreement with the respondents. It is apparent from the facts before this court that the intention of the respondents is not to comply with the provisions of the agreement and thus breaching the agreement.

[37] It is also evidently clear that the respondents intend commencing with the building of their house in breach of the provisions of the agreement. The argument that the plans have been approved by the municipality does not detract from their obligation under the agreement with the applicant.

[38] In light of the above, I find that the applicant has made out a case for a final interdict.

 

Costs

[39] The costs of the urgent interdict were reserved. I see no reason having regard to the facts and the circumstances of this case why those costs including those of the present matter should not follow result. In relation to the counter claim I find that the application was unnecessary and thus agree with the applicant that the appropriate costs order should be punitive. As indicated earlier there were no bases for the application.

 

Order

1. The rule nisi is confirmed.

2. The First, Second and Third Respondents are interdicted and restrained from commencing or proceeding further with the construction of the proposed three-story house or undertaking any other construction works on Portion 1 of ERF 1148 Brynston Township, Gauteng Province:,

i. Pending the construction of the boundary walls and a retaining wall; and

ii. until the First and Second Respondents have caused further excavation and levelling on Portion 1 in terms of the agreement.

3. The respondents are to pay the cost of the applicant.

 

 

________________________

E Molahlehi

Judge of the High Court

Johannesburg

Representation:

Counsel for the Applicant: Adv P Strathern SC

Instructed by:  Douglas Smart Attrorneys

Counsel for the Respondent: AJ Lapan

Instructed by: WMK Matlala Attorneys

Heard on:  01 November 2017

Delivered on: 29 March 2016

 

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