NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
 (WITWATERSRAND LOCAL DIVISION)
JOHANNESBURG

CASE NO: 31356/04
DATE:2005-02-04

In the matter between
PHILLIP JURGENS BOTHA................................................................................First Applicant
BOTHA. MARIE HENRIETTE ANDERSON
(nee MUNNIK) BOTHA....................................................................................Second Applicant
and
PAULO DOS SANTOS.................................................................................... First Respondent
LORDES DOS SANTOS.............................................................................Second Respondent

JUDGMENT

 WILLIS, J: The applicants have approached the court seeking the following relief:-
"That the first and second respondents be interdicted and restrained from performing any building work or any further building work, from causing any building work or any further building work to be performed on Portion 1 of Erf 575, Parktown Township, Registration Division I.R. in the Province of Gauteng in extent of 1 621 mJ and situate at 43A The Valley Road, Parktown ("the subdivided property") save the work referred to in Blieden J's order given on 21 December 2004 until such time as a review application instituted by the first and second respondents out of this Honourable Court under Case No. 04/31199 has finally been determined" and further ancillary matters.

The application was originally brought as one of urgency. For reasons which are not relevant to this judgment, the matter was not disposed of as one of urgency but by arrangement with the Deputy Judge President the hearing in this matter received priority and was allocated to me. There is clearly some degree of urgency relating to this matter. Counsel for both sides requested that I deliver a judgment today and I do so now.

The applicants and the respondents are neighbours in The Valley Road, Parktown. Their properties are adjacent to one another. The properties fall within a so-called "conservation area" known as the "Parktown Ridge conservation area" proclaimed in Government Notice No. 20566 on 27 October 1991. It was common cause that the area does indeed have a rich heritage.

This dispute has a protracted history. In the immortal words of C J Langenhoven, "Sonde met die Bure" is a good old fashioned South African tradition. An application was initially brought under Case No. 04/11998 issued on 1 June 2004. This was referred to by counsel as "the first interdict application". The respondents in that application were the present respondents and Gauteng Provincial Heritage Resources Authority.

A second application was brought under Case No. 17526/04 issued on 11 August 2004. This was an application against the respondents and the City of Johannesburg Metro Municipality, the Gauteng Provincial Heritage Resources Authority, the South African Heritage Resources Authority and the Parktown Association. The purpose of this application was to obtain an order that the decision of the City of Johannesburg Metro Municipality taken on 12 December 2003, approving the respondents building plans be reviewed and set aside.

A third application was brought by the present respondents under Case No. 04/31199 to review the decision of a panel of architectural experts to which I shall refer later. This application was issued on 10 December 2004.

The fourth application in this matter is the present one.
The parties agreed to resolve their disputes in the first interdict application by referring the matter to a panel of expert architects. They were given the power in terms of clause 6 of this agreement to "approve the existing plans as they are ar state in what manner the existing plans should be modified, amended or replaced." The panel consisted of Roger Fischer, a professor of architecture, Albrecht Holm, a private architect, a heritage architect, and Schalk Le Roux, also a professor of architecture.

The final decision of the panel was that "the plans (i.e. the plans of the respondents) are not to be approved".  They said the following under the heading "Remedial Steps":
"The mandate entitles the panel to 'modify, amend or replace the plans'. From the viewpoint of architects it is unprofessional conduct for the panel to alter the plans. It would also not be fair to the applicants to share the costs of the new plans for the defendants' residence. The panel is however willing to scrutinise new plans should this be required. The following can be taken as guidelines of what will be acceptable/not acceptable:
5.1  Building line on northern side (maximum distance from speed boundary into sides): 27,00 metre (twenty-seven metre);
5.2  Building lines for main building on eastern and western boundary; for building height of 4,5 metres above natural ground; 2,25 metres. For building height of more than 4.5 but less than 7,5 metres; 3,75 metre. Building lines on outbuildings on east and western boundary; For the first 12 metre distance from speed boundary: no restriction for single storey building. For any part north: building lines as for main building apply.
5.3 Maximum height of ridge of roof above street level direct opposite the middle of site: 7 metre. The roof must be pitched between 30 and 45 degrees to all sides.
5.4 Building street line: main building: 6 metre. No restriction on outbuildings.
5.5 Garden layout north of 27 metres from street boundary:
no formal axial "Baroque style" garden layout allowed.
No terrace walls or raised pool areas with retaining walls higher than 1,5 metre above natural ground level allowed. 
5.6 Architectural language: Any new building in heritage area is to be treated as an in-fill building, not a dominator.
The architectural language of the immediate neighbourhood should therefore be respect. No style imitations of any sort allowed." The respondents' attorneys of record advised the applicants in a letter on 10 December 2004 that the respondents intended to recommence with work on the subdivided property with effect from 13 December. The respondents' attorneys of record further advised that the work to be carried out during the month of December-2004 would be limited, specific and mainly preventative. The respondents' attorneys advised further that normal construction work would Commence in January 2005 regarding the completion of the house on the subdivided property.
The respondents have now sought to review the decision of this panel. This review application was brought under Case No. 34/31199, to which I have referred earlier.
The applicants allege that "if the respondents are allowed to proceed with instruction work they the second applicant will suffer very substantial losses. It will very detrimentally affect the value of our property and our enjoyment thereof. This situation will be irremediable and cannot ever be changed." The applicants also allege that "if the respondents are allowed to finalise the construction of their residence on the subdivided property in accordance with existing plans ..." they will "suffer irremediable harm because our privacy on our property will be substantially impugned, a very intrusive and very substantial building will exist very close to our eastern boundary and our view to the north-east will be completely blocked out and destroyed. The very purpose of the clearing and conservation area was to avoid this type of monstrosity being built on a relatively small stand."
The respondents in their answering affidavit say as follows: "What is left to be done is the roof and the finished, which we intend to commence in January 2005. The work that is presently being carried out is limited, specifically to prevent rain damage and to remedy a dangerous situation. Full reference will be made to this work below." It is now common cause that the construction work has indeed commenced. The respondents also allege in their responding affidavit that:
"To put it in a nutshell, continued construction of the matters referred to above will have no effect whatsoever on the applicants' views, nor on their privacy and accordingly can have no effect on value". They also make the point that the property was subdivided by the applicants themselves, who retained the land on which their house is built.

It is common cause that there is no restrictive covenant on the property that would affect the building which the respondents are in the process of erecting. It is also common cause that the plans for the respondents' building were indeed approved by the local municipality.

To summarise, therefore, it appears from the respondents' affidavit that the building is almost complete and all that is outstanding is the completion of the finishes and the roof. It is clearly apparent, and indeed Mr Pretorius could make no argument to the contrary, that the finishes themselves will have no impact whatsoever on the issues in question.

Mr Pincus, for the respondents, at the commencement of the hearing made an application for there to be an inspection in loco. I declined this application mainly for the reason that inspections in loco are most unusual in motion proceedings. As argument progressed on the merits, I was persuaded to revise this decision and indeed to hold the requested inspection in loco. I did so because the application entails a difficult "judgment call" and it appeared that the factual dispute was in fact a crisp one which could be speedily clarified by an inspection in loco. I came to the conclusion that an inspection in loco would assist me in understanding the issues better. The inspection in loco was held yesterday and indeed that exercise did enable me to understand the issues better. I should record at this stage that the inspection in loco verified the allegation of the respondents that all that was outstanding in so far as the completion of the building was concerned, were the finishes and the construction of the roof.
Mr Pincus conceded that for the purposes of the argument, it could be accepted that the applicants have shown a prima facie right in respect of this particular application. Mr Pincus submitted that this prima facie right was only very slightly in favour of the applicants in this particular application. In my view, Mr Pincus correctly conceded the question of there being a prima facie right in favour of the applicants. There is a well established maxim in our law: pacta sunt servanda. In colloquial idiom this means that if one enters into an agreement one is expected to stick to it. Furthermore, one would not lightly come to the conclusion that so illustrious a panel of expert architects would not do what was required of them and would not do it properly. Fortunately for reasons which will become apparent later, it is not necessary for me to decide how strong a prima facie case the applicants have established. I would be most reluctant to have to make a finding in this regard. I would not wish in any way to prejudice the review proceedings in Case No. 04/31199. I also would not wish to embarrass in any way any brother or sister of mine who will be hearing that particular application.

It being common cause that the applicants had established a prima facie right in their favour, it then became further common cause that all that was really in issue in this particular matter was the question of the "balance of convenience". It is "vanselfsprekend" that to halt the building works will cause the respondents massive inconvenience. The respondents have listed a number of respects in which they will experience inconvenience. These cause one no surprise and are the kind of issues that one would expect to have been enumerated, as they were.

During the course of argument, it became clear that in evaluating the inconvenience to the applicants, there were in fact only two issues that were relevant:
(i) The impact of the construction of the roof.
(ii) The invasion of the privacy of the applicants by the
respondents.
As I have indicated above, an inspection in loco was held. It appeared to me that Mr Pretorius, although he opposed the application for the inspection in loco, argued the question faintly and could not really make any submissions contrary to those of Mr Pincus, that the inspection in ioco would enable me to understand the issues better. After the inspection in loco had been held, I recorded in court that it was clearly apparent therefrom that the construction of the roof would _ have an entirely minimal impact on the applicants' privacy and that although it would not comply strictly with guidelines issued by the panel in terms of its height, it would not be appreciably higher than any of the other roof lines in that street and could in fact be lower. The roof would, in my opinion, furthermore, have no appreciable impact an the character of the area. It would also have an only minimal impact on a view of the sky from one of the passages in the home of the applicant. In so far as privacy is concerned, it was clear that the applicants' privacy would be seriously impacted by two factors :-
(i) The windows on the western side of the respondents' house which overlook the applicant's property and an upstairs balcony which look north.
(ii) The raised pool deck.
I recorded these observations and neither Mr Pretorius nor Mr Pincus had any criticism thereof, indeed they firmly endorsed the correctness thereof. The first aspect concerning privacy is not covered at all by the recommendations of the panel of architectural experts. The pool is indeed covered by their recommendation. It is important to emphasise that privacy is not an absolute right. Moreover, if one subdivides one's property, there is always a risk that the neighbours will build next door and overlook it. Unless this is prohibited by restrictive covenant or municipal regulations or something similar, there is nothing which can be done to prevent this. It is indeed unfortunate that the gardens, and in particular the stoep/patio of the applicants' property will be overlooked by the respondents' building. In my opinion, however, there is no possible legal remedy available to them in this regard.

As far as the pool deck is concerned, it has already been built. All that has to be completed is a screed around the swimming pool, a balustrade erected on the western side thereof and the tiling of the swimming pool before it is filled. Without a balustrade, the pool deck would constitute a real danger to persons [especially children) who may fall over. The respondents made a tender that they would screen off the pool area and put frosted windows in all rooms, both upstairs and downstairs on the western side of the house which is being built. This, it seems to me, takes care of the question of the balance of convenience. If an order is made to this effect it will substantially address the applicants's concerns relating to privacy. It will not remedy the fact that the pool has been raised a higher level than that which the panel of experts recommended but it will substantially mitigate the harm done.

If one weighs this against the inconvenience which the respondents would experience if the court were to halt the process of the building or even the progress in regard to the pool deck, it is clear that it is the respondents who must succeed. It was agreed between the parties that if I made an order which gave effect to this tender by the respondents, it would be appropriate that I order that the costs in this particular application be costs in the review application (Case No. 04/31199.

The following order is made:
1. The respondent are to erect a trellis fence all along the top of the wall on the western side of Portion 1 of Erf 575 Parktown Township, commonly known as No. 43A The Valley Road, Parktown as high as the existing electric fence on the applicant's wall and are to plant trees and raise the height of the western wall by one metre to the extent that this is necessary to screen the pool deck from the view of applicants and to screen persons on the pool deck from looking on to the large extent of the gardens and patio of the applicants.
2.  The respondents are to install and maintain frosted window panes in all windows on the western side of their property.
3. The costs of this application are to be costs in the review application (Case No. 04/31199) and these costs are to include the costs of two counsel.
ON BEHALF OF THE APPLICANTS: J G PRETORIUS SC (with him P T Rood)
Instructed by: Fluxmans Inc
ON BEHALF OF THE RESPONDENTS: B K PINCUS SC (with him D GOLDBERG)

Instructed by:Biccari, Bollo and Mariano Inc
DATES OF HEARING: 31 January and 3 February 2005
DATE OF JUDGMENT: 4 FEBRUARY 2005