Republic of South Africa

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

							CASE No:  9934/2005
                                                                    
In the matter between:

M F  HAROUN			                          			       Applicant 

and

R G  GARLICK				 				        Respondent 

_____________________________________________________________________

JUDGMENT  DELIVERED  :  14  MARCH  2007
________________________________________________________________________

MOOSA, J:
Introduction
1.	This is an application for a final interdict, in terms of which applicant seeks an order, inter alia, interdicting and restraining respondent from alienating the land described as Erf 9944 Constantia, or constituting or allowing to be constituted, any real right in that land, or effecting or allowing to be effected, any improvements to the land, while it is held under title separate from the land described as Erf 9437 Constantia, except - 
1.1      to transfer Erf 9944 Constantia to the owner for the time being of Erf 9437 Constantia, conditionally on consolidation of Erven 9437and 9944 Constantia;  or
1.2.    to consolidate Erf 9944 Constantia with Erf 9437 Constantia should respondent then own Erf 9437 Constantia.

2.	Respondent has opposed the application on the following grounds:
2.1	that applicant has no locus standi to bring the application;
2.2	that applicant has failed to join relevant parties to the proceedings;
2.3	that applicant’s claim has become prescribed;
2.4	that applicant’s claim violates the delay rule and
2.5	that applicant’s claim has no merits on the facts.

3.	The thrust of respondent’s argument, as I understand it, is that applicant seeks, through the crafting of the relief sought, to effect indirectly, the review of the administrative actions which gave rise to the separate existence of Erf 9944.  But if he goes the route of review, so the argument proceeds, he will be confronted by two obstacles.  The first is that the status quo ante is not capable of   being reversed and the second is that he will be hit by the “delay rule”.  In support of the “delay rule” respondent relies extensively on authorities relating to the application of the “delay rule” in review proceedings.  The relief sought by applicant is a final prohibitory  interdict and not to set aside the administrative act or acts giving rise to the illegal erf.  I will return later in my judgment to these issues.   

4.	Although many collateral issues have been raised, they do not impact on the essential issues in dispute.  The disputes of fact in respect of the central issues can be determined, in my view, on the facts which are common cause and undisputed, together with those facts which do not constitute bona fide and genuine disputes of fact on the basis of the principles set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

Facts which are common cause or undisputed
5.	Before evaluating the evidence,  I will summarise that which is common cause and undisputed and which does not constitute bona fide and genuine disputes of fact.  In 1978 respondent acquired ownership of Erf 114 Constantia measuring approximately 9300 square metres and held by him under deed of transfer No T14788/1978.  On 16 March 1984 the Divisional Council of the Cape approved a subdivision of Erf 114 into two portions, the one approximating to what is now known as Erf 9404 and the other approximating to the combined Erven 9944 and 9437.   

6.	On 15 July 1985, Erf 9437 was transferred into the names of the two trusts namely, the Esme Garlick Trust (“EGT”) and the Ralph Garlick Trust (“RGT”).  The other erf which was described as the remainder of Erf 114 was continued to be held by respondent in terms of a certificate of registered title No T25270/1985 issued to him.  On 5 January 1988 approval was granted for the remainder of Erf 114 to be divided into Erven 9404 and 9944 subject to the condition that Erf 9944 was consolidated with Erf 9437 which was then owned by the two trusts.  

7.	 Erf 9404 was sold and transferred by respondent to Klotz on 5 April 1989.  He, in turn, sold and transferred the erf to applicant on 28 August 1990.  Erf 9944 was placed in a certificate of registered title in the name of respondent.  The separate existence of this erf forms the crux of the dispute between the parties.  It is common cause between the parties that this erf should have been consolidated with Erf 9437 but this has not been done.

8.	It is also common cause that respondent has, on behalf of RGT applied to excise a portion of land in size approximately 300 square metres from Erf 9437 which is owned by RGT and to consolidate it with Erf 9944 which is owned by respondent.   This would have the effect of increasing the size of Erf 9944 to approximately 1000 square metres, which would still not comply with the zoning regulations which required all erven to be not less than 4000 square metres in size.

Locus standi 
9.	With that as backdrop, I turn to the issues raised in limine.  The first such issue is the question of locus standi of applicant to bring the application.  Respondent contends that the party which enjoys locus standi to compel the type of relief sought by applicant is the local authority.  The action in the form of a mandamus, so the argument goes, should have been directed at the local authority.  This contention, in my view, is misdirected.  

10.	Applicant as an owner of an adjoining erf has a direct and substantial interest in the compliance with and enforcement of the zoning scheme applicable to the properties in question.  This right is reinforced by Section 36 of the Land Use Planning Ordinance, 15 of 1985 (“Lupo”) which entails the recognition, inter alia, of the preservation of the natural and developed environment of the area and the existing rights of neighbours.  Applicant is entitled to protect such interest against the unlawful use of and dealings with neighbouring land that would adversely affect his enjoyment, privacy, peace and tranquillity.  The imposition of the condition for the consolidation of the undersize Erf 9944 with Erf 9437 by the local authority was designed to enable respondent to comply with such rights and interests of neighbouring land owners in terms of the zoning scheme.   
 
11.	Applicant seeks to prevent the development and alienation of the illegal erf that would firstly detract from the existing character and amenities of the neighbourhood and secondly would absolve respondent from his obligation to comply with the condition of subdivision or for that matter with the zoning scheme. I accordingly hold that applicant has locus standi to bring the application for the relief sought.  (See: Hayes and Another v Minister of Finance and Development Planning, Western Cape and Others 2003 (4) SA 598 (C) at 623E;  Esterhuyse v Jan Jooste Family Trust and Another 1998 (4) SA 241 (C)  at 253H-254D and BEF (Pty) Ltd v Cape Town Municipality and Others 1983 (2) SA 387 (C) at 400D-401H.)

Non-joinder
12.	The second issue in limine is the question of non-joinder.  Respondent contends that the non-joinder of RGT, the local authorities, the Registrar of Deeds, the Surveyor General and the bondholder, the Standard Bank of South Africa Ltd who have a material interest in the findings of this court, should have been joined as parties to these proceedings.  In the absence of such joinder, the application should be dismissed or struck from the roll with costs.  

13.	It is common cause that the Notice of Motion was served on The Registrar of Deeds, The Surveyor-General and The Standard Bank of South Africa Limited.  None of them indicated an intention to intervene or to be joined as a party to these proceedings.  Section 97 (1) of the Deeds Registries Act of 1937 and Section 46 of the Land Survey Act, 1997 require notice to be given to the Registrar of Deeds and the Surveyor-General respectively and not that they be joined as a party to the proceedings.  Although the Notice of Motion was not served on RGT, it was served on respondent who, at all material times, acted on behalf of RGT.  It does not appear that the Notice of Motion was served on the local authorities.

14.	Rule 10 of the Uniform Rules of Court, provides for joinder of a party, to legal proceedings provided the relief sought for or against the party depends upon the determination of substantially the same question of law or fact that  would arise if separate proceedings were instituted by or against such party.  The joinder of parties depends not only upon the nature of the subject matter, but also upon the manner in which and the extent to which the court order may affect the interests of such parties.  The parties to be joined must accordingly have a direct and substantial interest not only in the subject matter of the litigation but also in the outcome thereof.  A court, in the absence of a direct and substantial interest, has a discretion to order a joinder on the basis of convenience.  (See:  Herbstein & Van Winsen: The Civil Practice of the Supreme Court of South Africa, 4th Edition by Van Winsen, Cilliers & Loots at 172-3;  Amalgamated Engineering Union v Minister of Llabour 1949 (3) SA 637 (A) and Transvaal Agricultural Union v Minister of Agriculture & Land Affairs & Others 2005 (4) SA 212 (SCA), para 66 at 227A-C.)

15.	 In my view all the parties who respondent claims should have been joined to these proceedings, have no direct and substantial interest in the subject matter of the interdict and the outcome thereof; moreover no relief is sought against them.  Standard Bank merely has a financial and commercial interest in the property.  I therefore see no compelling reason why any of those parties should be joined to these proceedings.   (See Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) at 169H;  Kock & Schmidt v Alma Modehuis (Edms) Bpk 1959 (3) SA 308 (A) at 317D-318H;  Segil v Segil 1992 (3) SA 136 (C) at 141D;  New Garden Cities v Adhikarie 1998 (3) Sa 626 (C), paras 9 & 6, at 630I-631B and The Civil Practice of the Supreme Court of South Africa (supra) at 172.)

16.	For the reasons mentioned above, I conclude that there is no merit in the non-joinder defence raised by respondent and it must according fail. 

Prescription 
17.	I now turn to deal with the third issue in limine, namely prescription.   Apart from the general law of prescription and other statutory provisions that circumscribe time limits within which proceedings have to be instituted, our law does not recognise delay per se, however long, as a bar to the institution of a claim or a defence.  What our courts have recognised is that legal proceedings ought to be instituted within a reasonable period of time.  (Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41B-H.)  Save for these legal proceedings proscribed by Statute, the institution of legal proceedings in our common law, like review proceedings, is not circumscribed by specific time limits.  (Harnaker v Minister of the Interior 1965 (1) SA 372 (C) 380B-H.)
 
18.	Respondent contends that applicant’s right to protest the unlawfulness of the erf and the right to compel consolidation thereof, has long since prescribed.  In support of such contention, Mr Kirk-Cohen SC, for respondent, argues that the “institution of legal proceedings” falls to be considered within the meaning of a “debt” as provided for in Section 11 of the Prescription Act 68 of 1969.  The word “debt” is not defined in the Act.  Our courts, in the context of Section 10 (1) of the Act, have given a wide and general meaning to the word. They have interpreted the word to include the obligation to do something or to refrain from doing something.  (See Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A) at 344F-G;  Oertel en Andere NNO v Direkteur van Plaaslike Bestuur en Andere 1983 (1) SA 354 (A) at 370B and Desai NO v Desai and Others 1996 (1) SA 141 (A) at 146I-147A.)

19.	The extended meaning to “debt” is given to an “obligation” and not to a “right”.  The word “debt” connotes an obligation.  To expand the meaning of the word to include rights, in my opinion, would do violence to the word “debt”.  If the legislature intended giving the word such extended meaning, I have no doubt, that it would have made such intention clear in unmistakable language.

20.	Even if I have to assume in favour of respondent, without making a formal finding, that prescription applies in this matter, respondent is faced with two difficulties.  The first is that he has an obligation to comply with the condition of sub-division and he remains in breach thereof until there is compliance.  While such breach continues, applicant has the right to bring proceedings to protect his interests.  Because of multiple causes of action that arise from moment to moment while the breach persists, prescription does not start to run until the breach ceases.  In dictum, Solomons, JA in Symmonds v Rhodesia Railways Ltd 1917 AD 582 at 588 said:                   
“But where there is a continuance of a wrongful act causing fresh damage from day to day, can it be said in such a case that there is only one cause of action and that therefore a plaintiff who has brought an action for the loss which he has suffered up to date, has thereby exhausted his remedy?  In my opinion such a contention cannot be sustained:  if it were, it might be productive of very great injustice.”  
	  In approving this dictum Watermeyer, JA in Oslo Land Co Ltd v The Union Government 1938 AD 584 at 589 said the following:           
“The importance of this point lies in the fact that in so far as the accrual of a right of action is concerned, there is a distinction between what may be regarded as a single wrongful act giving rise to one cause of action and a continuing injury causing damage from day to day which may give rise to a series of rights of action arising from moment to moment.”   
(See also Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A) at 330A-331E.)

21.	There is no obligation on the part of applicant to institute proceedings either within a prescribed period or at all.  It is a right which he enjoys.  Such right is not proscribed by statute.  Our courts, by virtue of their inherent jurisdiction have developed a rule that such rights are to be exercised within a reasonable period.  

22.	The cases quoted by Mr Kirk-Cohen all deal with an obligation to pay or an obligation to do something or refrain from doing something.  On the facts,those cases are distinguishable from the present case.  They do not support respondent’s defence of prescription. 

23.	The second is that  it is a trite principle of our law of prescription that a party cannot profit from his own inaction.  Where a “debt” is only due on the fulfilment of a condition, prescription will not start to run until the condition has been fulfilled.  In Uitenhage Municipality v Molloy 1998 (2) SA 735 (SCA) Mohamed CJ observed at 742:
“The rationale in the cases which have held that a creditor cannot by his own conduct postpone the commencement of prescription by refraining from satisfying the condition which would delay the debt due and payable, apply equally where the creditor had failed to take or initiate the steps which fall within his power to make it possible for such condition to be satisfied.” 
By parity of reasoning, the principle outlined therein, applies equally to the facts of this case, namely, where there is an obligation on a person to comply with a condition and such person fails to comply therewith, prescription will not run against the other party until the person has complied with such condition.

24.	The defence of prescription, in my view, is therefore misplaced and cannot be sustained.  The question of applicant’s knowledge of the separate existence of Erf 9944 is therefore not relevant to the present enquiry. 

Violation of the delay rule
25.	The fourth issue in limine is the contention of respondent that the application violates the delay rule.  The contention, the way I understand it, is that applicant  by these proceedings is in effect trying to compel consolidation by collateral means instead of reviewing the validity of the unlawful administrative acts which gave rise to the registration of Erf 9944.  It was argued that applicant faces two fundamental obstacles to such review proceedings.  The first is that public policy in the form of the “delay rule” required that finality be reached with judicial and administrative decisions within a reasonable period.  The second is the maxim “omnia praesumuntur rite esse acta”,  that is, unlawful administrative acts are presumed to be legal until challenged and set aside by a court.   

26.	In support of such submission respondent relies on Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) and Mgoqi v City of Cape Town and Another; City of Cape Town v Mgoqi and Another 2006 (4) SA 355 (C).  In my view such reliance is misplaced.  Those cases are distinguishable in law and in fact.  The relief sought in the Oudekraal matter (supra) was for a declaratory order and that in the case of the Mgoqi (supra) was to review and set aside certain decisions, while the relief sought in the present matter is for a final interdict.

27.	There are no specific rules or practice that provide that legal proceedings become superannuated by the effluction of time for the want of prosecution.  (See Morgan-Smith v Elektro Vroomen (Pty) Ltd en ŉ Ander NO 1977 (2) SA 191 (O) at 194A and Meyer v Meyer 1948 (1) SA 484 (T) at 487.)  Once an action has been instituted or an application has been launched, the rules of court stipulate a time period within which various steps have to be taken to bring the matter to finality.  (Kuhn v Kerbel and Another 1957 (3) SA 525 (A) at 532H-534B.)
28.	Litigants have a constitutional right to have any dispute adjudicated before a court of law in a fair public hearing.  (Section 34 of The Constitution of the Republic of South Africa, Act No 108 of 1996 (“the Constitution”).)  The right of access to court is similarly entrenched in our common law.  (See:  Western Assurance Co v Caldwell’s Trustee 1918 AD 262 at 273.)  The High Court has the inherent jurisdiction to protect and control its own process and has the power to dismiss legal proceedings on account of delay or want of prosecution.  (See Section 173 of the Constitution;  Herbstein & van Winsen  (supra)  at 547;  Hunt v Engers 1921 CPD 754;  Western Assurance Co v Caldwell’s Trustee (supra) at 272.) 

29.	The general rule is that legal proceedings must be instituted within a reasonable period.  What is reasonable depends on the facts and circumstances of each case.  The question whether the delay has been reasonable or unreasonable is a factual enquiry.  If the court finds that the delay has been reasonable, it cannot bar the litigant from proceeding.  If the court, however, finds that the delay has been unreasonable, the court exercises discretion whether, in the light of all the relevant circumstances and factors, the delay should be condoned or not.  (Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad (supra) at 42C-D.) 

30.	On the basis of the legal principles enunciated above, I shall examine the facts and circumstances of the present case to determine whether there is any merit in respondent’s complaint.  It is common cause that a considerable period of time has elapsed since the illegal Erf 9944 came into existence as a separate erf.   Respondent cannot absolve himself from responsibility for the illegal existence of the triangular piece of land.  There was a duty on him to comply with the condition of sub-division, which he had failed to do.  His excuse for not complying is not persuasive and is inconsistent with his conduct which reflected that both prior and subsequent to the registration of the triangular piece of land as a separate erf, he controlled the trusts.  On the facts, the only plausible conclusion the court can draw is that he administered the trusts according to his wishes.  

31.	After the triangular piece land came into existence as an illegal entity, he sought to profit thereby by not only perpetuating the illegality of the existence of the triangular piece of land, but also seeking to excise a small piece of land which belongs to the trust with the view of adding it to the illegal portion.  The new creation would still be illegal and not comply with the zoning regulation of the area. 

32.	In my view, as long as respondent fails to comply with the condition, he remains in breach and while such breach continues, applicant, who has a legal interest in the enforcement of the zoning scheme, is entitled to approach the court for relief.  The difficulties that respondent faces in the case of prescription, namely the multiple causes of action that arise from his breach and that he cannot benefit from his inaction, in my opinion, apply equally to the “delay rule”.  I, therefore, conclude that respondent’s defence based on the “delay rule” is misconceived and falls to be rejected.

The merits
33.	I now turn to deal with the merits.  Applicant is seeking a final prohibitory injunction. The parties agreed that the present proceedings will constitute an application for final relief.   In order to succeed, he must show:   (a) a clear right;  (b) an injury actually committed or reasonably apprehended and  (c) the absence of any other satisfactory remedy available to him.  (Setlogelo v Setlogelo 1914 AD 221 at 227 and V & A Waterfront Properties (Pty) Ltd & Another v Helicopter & Marine Services (Pty) Ltd & Others 2006 (1) SA 252 paras 22 and 23 at 258A-E.)   I will analyse the facts to determine whether he has established the requirements for obtaining a final interdict.  Respondent has not made any submissions in this regard, either in court or in his Heads of Argument.

A clear right
34.	It is common cause that applicant is the owner of Erf 9404 Constantia.  Respondent is the owner of the disputed Erf 9944 Constantia.   Respondent’s trust known as the Ralph Garlick Trust is the owner of the neighbouring Erf 9437 Constantia.  All three erven formed a constituent part of erstwhile Erf 114 Constantia which was owned by respondent.  It was a condition of the subdivision that Erf 9944 had to be consolidated with Erf 9437.  Respondent failed to effect the consolidation.  

35.	Through bureaucratic bungling in which the agents of respondent, Mr Hodge, the land surveyor and Mr Hazel, the conveyancer, had a part, Erf 9944 came into existence as a separate erf contrary to the zoning scheme.  Respondent now wishes to excise a piece of land from Erf 9437 and consolidate it with the unlawful Erf 9944.  Such consolidation would still not create an erf that would comply with the zoning scheme.  Respondent has indicated that he either intends disposing of the larger erf or effecting certain improvements thereto  and thereafter disposing thereof.  

36.	The relief sought by applicant is to prevent respondent from disposing of, or improving the land without him complying with the original condition of sub-division.  It appears that respondent is unwilling, rather than unable, to comply with the condition and is trying to take advantage of the unlawful creation of Erf 9944.   Applicant has a legal interest in the enforcement of the zoning scheme and the enforcement of the condition of subdivision in compliance therewith.  

37.	In his founding affidavit applicant says the following (para 64): 
“I purchased remainder Erf 9404 because I specifically wanted a home designed to my own requirements in an area of large land units with a rural, wooded character, where I would not be aware of neighbours to any great extent, and where I could enjoy seclusion and tranquillity.  Remainder Erf 9404 was a rare find for me that met those requirements admirably (or so I thought) before I discovered respondent’s intention.”  
            These allegations have not been challenged by respondent.  I am of the opinion that, on the uncontroverted facts, applicant has a clear right to bring the interdict proceedings.

Infringement of  the right
38.	Applicant has a legal interest in the maintenance of the zoning scheme and compliance with the condition of subdivision. The non-compliance with the condition adversely affects the rights of applicant.  He is justified in fearing that the disposal of the illegal erf or its development and disposal thereof, will put it beyond the power or ability of respondent to comply with the condition.  In such event the illegality will be perpetuated without the local authority or applicant having the right of recourse for the enforcement of the condition against the new registered owner of Erf 9944.

39.	I agree with applicant’s submission that the issue in these proceedings is not whether respondent is or is not able to consolidate Erf 9944 with Erf 9437.  The issue is that he is not permitted to lawfully deal with Erf 9944 unless he procures the consolidation with Erf 9437. 

40.	I am, therefore, satisfied that respondent, by not complying with the condition, infringed the rights of applicant and continues to do so to his prejudice.  By increasing the size of Erf 9944 to 1000 square metres and developing the erf, respondent will continue to infringe applicant’s rights to his prejudice.  I conclude therefore, that the second requirement of the interdict has been met.

Alternative remedy
41.	I now turn to the third requirement namely, alternative remedy.  The threatened disposal and/or development of the undersized erf by respondent, contrary to the zoning scheme, triggered the main application.  The interim application was triggered when respondent indicated to applicant that he intended alienating Erf 9944 at the end of August 2006 and invited him to take steps to protect his interests.  In pursuance thereto, applicant brought the application for interim relief pending the outcome of the main application.  Applicant correctly points out that the disposal of the property would have rendered nugatory the relief sought in the main application.  

42.	I am of the opinion that applicant has no other suitable remedy to protect his legal interest in the enforcement of the zoning scheme other than by launching interdict proceedings to prevent respondent from disposing of or developing the undersized erf.  In my view, because of the nature of the right and infringement thereof, applicant would not obtain adequate redress through the award of damages.  It would not only be difficult to prove such damages but would also be difficult to quantify such damages.  (See Fourie v Uys 1957 (2) SA 125 (C) 128 and Candid Electronics (Pty) Ltd v Merchandise Buying Syndicate (Pty) Ltd 1992 (2) SA 459 (C).)

43.	To allow respondent to deal with Erf 9944 as he intends, would undermine the important doctrine of legality which forms an integral part of our legal system, more particularly since the Constitution became the supreme law of the country.  (See Pharmaceutical Manufacturers Association of SA and Another:  In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) at 687H and Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (supra) 593B-D.)  The failure of respondent to comply with the condition cannot be justified and it would be contra bona mores and against public policy for the court to condone or legitimize the illegal existence of Erf 9944 in the present circumstances.

Duration of interdict
44.	A further matter that I need to touch on is the duration of the relief.  I have found that the coming into existence of Erf 9944 as a separate entity was contrary to the zoning scheme as established under the aegis of Lupo.  Nothing, however, prevents the zoning scheme from being amended or other legal measures to be introduced to enable Erf 9944 to exist as a separate entity.  

45.	It appears that certain steps to legitimise the existence of Erf 9944 has been taken by respondent and approved by the local authority.  Applicant has taken the decision on review to the Premier and such review is still pending.  In the event of circumstances changing, the respondent should be granted leave to approach the court for an order amending or rescinding the interdict.  (See:  CTP Ltd and Others v Argus Holdings Ltd and Another 1995 (4) SA 774 (A) at 789A-C.)

Costs
46.	I now turn to the question of costs.  There are two applications before me.  The one is the main application and the other is the interim application.  The relief sought in the interim application became obsolete as a consequence of an undertaking given by respondent in the papers that he had no intention of dealing with the property in a manner adverse to applicant’s rights.  The only outstanding issue which falls to be determined in the interim application, is the question of costs.  I am of the view that costs should follow the costs in the main application.  I did not understand counsel for the parties to have argued otherwise.  In the main application there is no reason why the usual order with regard to costs should not follow, namely that costs follow the result. 

Order
47.	In the result the following order is made: 
(a)	Respondent is interdicted and restrained from alienating the land described as Erf 9944 Constantia, or constituting or allowing to be constituted any real right in that land, or effecting or allowing to be effected any improvement to that land, while it is held under title separate from the land described as Erf 9437 Constantia, except 
(i)	to transfer Erf 9944 Constantia to the owner for the time being   of Erf 9437 Constantia, conditionally on consolidation of Erven 9437 and 9944 Constantia;  or
(ii)	to consolidate Erf 9944 Constantia with Erf 9437 Constantia should respondent then own Erf 9437 Constantia;
(b)	the said interdict shall endure, while Erf 9944 Constantia is not             consolidated with Erf 9437 Constantia, or until it becomes legally permissible to hold Erf 9944 as a separate entity; 
(c)	respondent is granted leave to approach the court, on due notice to applicant and on good cause shown that the circumstances have materially  changed, for an order rescinding or amending this order;
(d)	costs in this case (No 9934/2005) and in case number 9138/2006 shall be paid by respondent and such costs shall include the costs occasioned by the employment of two counsel.  

………………………
        E  MOOSA