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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

HIGH COURT OF SOUTH AFRICA

TRANSVAAL PROVINCIAL DIVISION

CASE NO: 32705/05

DATE: 32705/05

UNREPORTABLE

In the matter between:

HERMANUS CHRITOFFEL ADOLF VERRYN...........................................EERSTE APPLICANT

PETRONELLA SOPHIA VERRYNE........................................................... TWEEDE APPLICANT

AND

PE VAN DER WATT......................................................................................EERSTE RESPONDENT

KLASIE VAN DER WATT......................................................................... TWEEDE RESPONDENT

JUDGMENT

MAVUNDLA, J

1. The applicants seek in terms of an amended notice of motion, a declaratory order against the respondents in terms of which the respondents are ordered to commence, within seven days after the granting of the order, with building of a wall between two properties known as the Remaining Portion of Erf […], W[…], held in terms of Deed of Transfer T.7[…] and Portion 3 of Erf […] W[…], held in terms of Deeds of Transfer 7[…]. Further the Court is requested to order that the relevant wall sought to be built, must be completed within five weeks after the commencement thereof. The Court is further requested to order that in the event of the respondents refusing or failing to build the said wall, the authorised to instruct Mr. Yssel to instruct a building contractor and that the building costs for the building of the wall be paid by the respondents. The application is being opposed.

2. The applicant in essence is seeking a final interdict. A final interdict is only granted in notice motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavit justify such an order.[1]  There is no onus on the part of the respondent.[2]  Where there is a dispute of facts the final interdict is granted on the version of the respondent. The applicant to succeed in having a final interdict granted in his favour, he must show, inter alia, that there is no other ordinary and effective remedy available for him.[3] The Court has a judicial discretion to grant a final interdict.[4] Where the applicant has reasons to believe that   there might be a dispute of fact and decides not apply for the matter to be referred to oral evidence, the court might decide not to refer the matter to oral evidence but decide the matter on the version of the respondent; vide Tamarillo (Pty) Ltd v BN Aitkien (Pty)Ltd 1982 (1) SA 398 (A) at footnote 4 herein.

3. In casu the applicants are married to each other. They are the joint owners of the Resultant Portion Erf […] W[…], Pretoria, held in terms of Deeds of Transfer T 7[…]. This property is situated at […] B[…] Avenue, Pretoria.

4. The first respondent and the second respondent ply in building and development business under the name and style of Van der Watt Builders & Developers.

5. The applicants in bringing this application rely on an agreement which they say was concluded between themselves and the respondents. The terms of the said agreement aver that that the latter would build a wall between their respective adjacent properties. In order to prove the said agreement the applicants have attached various correspondence that have been exchanged between the respective parties, through their respective legal representatives.

6. In paragraph 12 of their founding affidavits, the applicants aver that there was an agreement entered between them and the respondents. The According to the applicants the terms of the agreement were confirmed by the respondents in a letter dated the 25 February 2005 (annexure HC1. The said terms are that:

(a) the applicants will sign the building plans;

(b) the respondents undertook to build a wall between the adjacent properties, within 14 days after the approval of the plan;

(c) the first respondent will destroy the jacaranda tree that is in the premises of the applicants;

(d) the ground filling on the side of the applicants will be made done neatly.

7. The applicants contends that a further condition of the agreement is contained in their letter to the respondents dated the 27 February 2007 (annexure HC3), which further term was accepted by the respondents per their letter dated the 28 February 2007 (annexure HC4) The said terms was that the wall on the side of the applicants' shall be elevated to at least 1.4 meters for security reasons. that although the respondents complied with conditions 5.c (supra), they failed to comply with the remaining conditions. The applicants had to attend to condition 5.d (supra).

8. On the other hand the respondents contend that the terms of the agreement were that the wall will be built progressively to the highest point of the Ervin, with the view of building the wall as far as is possible, where after a delineation will be provided.

9. It is contended that it is not clear from the reading of the letters upon which the applicants rely what precisely was the agreement. The mere consideration of the letters between the parties, read with the comments of the applicants, demonstrate that there was no consensus reached on the 25 February 2005 nor what the terms of the agreement were. It is further contended on behalf of the respondents that the fact that there was no consensus is reflected in the correspondence of October 2005 (annexure HC5-8).

10. Mr Kruger on behalf of the respondents has asked me not to take a "common sense and robust approach" as stated in the matter of Soffiantini v Mould 1956 (4) SA 150 (E), since this is not a matter requiring such approach. He further states that the applicant should have foreseen that there are material factual dispute that will arise in this matter and they should have issued a damages claim.  In regard to the latter submission he refers to Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T).

11. In the Sofiantini v Mould case (supra) at 154E-F Price J.P. cites Murray , then A.J.P as saying in the Room Hire Co (Pty) Ltd matter (supra) as saying:

"A bare denial of applicant's material averments cannot be regarded as sufficient to defeat applicant's right to secure relief by motion proceedings in appropriate cases. Enough must be stated by respondent to enable the Court to conduct a preliminary examination... and to ascertain whether the denials are not fictitious intended to delay the hearing." (or for some other purpose)

"The respondent's affidavits must at least disclose that there are material issues in which there is a bona fide dispute of fact capable of being decided only after viva voce evidence has been heard."

12. Price JP then proceeded to state that:

"If by mere denial in general terms a respondent can defeat or delay an applicant whose comes to Court on motion, then the motion proceedings are worthless, for a respondent can always defeat or delay a petitioner by such a device. It is necessary to make a robust, common sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute of fact."

13. I need first and foremost to determine whether there is indeed a genuine and material dispute of facts in this matter. The respondents admit that there was an agreement as stated by the applicant. The respondents however state that at that time the development on the respondents' property had not progressed significantly and the landscaping was still at its inception. The wall was to be built progressively to the highest point of the erven which is at the back thereof. Throughout the intention was to build the wall as far as it was practicably possible, where after an alternative safe demarcation was to be provided. The applicants' signature was required for the approval of the plans which approval was only done on the 20 April 2005.

14. Whereas the applicants have attached a copy of the letter dated the 25 February 2005 (annexure HC2) which they say it contains the terms of the agreement, the respondents point out that in the said letter reference is made to a plan which the applicants have failed to attach to the founding affidavit.

The respondents have since attached a copy of the said plan as annexure PW1. They point out that on the said plan there is a wire which during the negotiations it was agreed that it would serve as a possible fence and the rest of the portion would serve as the wall.

15. It is necessary to refer to the letter of the 25 February 2005. This letter reads as follow:

"Met verwysing na u gesprek met ons mnr Klasie van der Watt op terrain vanoggend om 08h00 bevestig ons die volgende onerneeming van ons kant:

Mure word verhoog min of meer soos practise volgens aangehegte terreinplan.U handtekking word benodig vir indiening van die planne. Ons onderneem om binne 14 dae na goedkeuring van die planne die genoemde mure te bou soos bespeek.

Ons onderneem verder:

- Om die boom dood te maak.

- Grondopvuling aan u kant sal neitjies afgehandel word.

Ons wil graag later vandag die getekende planne by u kom afhaal."

16. Whereas the applicants refer to a wall to be built, the letter which they telly upon refers to walls ("genoemde mure te bou soos bespeek."). On the version of the applicants it means that there would be one continuous wall. On the other hand, the version of the respondents is that throughout the intention was to build the wall as far as it was practicably possible, where after an alternative safe demarcation was to be provided. In my view, there is indeed a g6n~ine and a material dispute on this aspect of precisely the nature of the wall to be built.

17. From the letter of the 27 February 2005, which is a letter from the applicants to the respondents it is clear that as at that time there is as yet no meeting of minds, consensus, on the basis of which one can say that the parties have since agreed on all issues pertaining to the construction of the wall. This can be inferred from the following paragraph of the said letter:

"Die voorstelle soos deur U aangebring op die terrain plan, aan my gefaks, byk na terrain inspeksie, deur my gedoen, onvoldoende te wees en ek stel graag die volgende voor:

1. U voorstele vir posisie een soos deur U aangedui mag voldoende wees;

2. U voorstele vir posisie twee is onvoeldoende. Die addisionele stuk wat gebou moet word sal +-4 meter lank (horisontaal) moet wees.

3. U voorstel vir posisie drie is onvoeldoende. Die addisionele stuk wat gebou moet word sal +-3 meter lank (horisontaal) loet wees.

4. Die draad deur my aangebring by posisie deur U gemerk vier, is tydelik om my honed binne my perseel te hou en al my vereisters vir 'n muur, deuru gebou sal hier ook geld.

5. 'n Posisie tussen die punte gemerk een en twee op die terrain plan is ook onveilig en 'n muur gebou to 'n hoogte van 1,4 m van +- 3 meter lank (horisontaal) word vereis."

18. Since I am of the view that there is a dispute of fact as to what the parties have agreed upon, and since the applicants have not asked for the matter to be referred to oral evidence, the matter must be determined on the basis of the version of the respondents.[5] On the version of the respondents which I have already referred to herein above, this Court cannot grant to the applicants the relief that they seek. This means that the applicants have not acquitted themselves of the onus that rest upon them.

19. The applicants have not made a case as to show on a balance of probability that there is no other ordinary and effective legal remedy at their disposal to protect their rights.[6]Further the applicants seek an order in terms this Court authorises the applicants to instruct My. RG Yssel to instruct a building contractor to build the wall and that the costs pertaining thereto be recovered from the respondents. Mr Kruger for the respondents has submitted that such an order is drastic and invasive. I fully agree with this submission. The Courts cannot give orders that are too wide and extend beyond the respective litigants themselves.

20. In the premises the application is dismissed with costs.

N M MAVUNDLA

JUDGE OF THE HIGH COURT

HEARD ON THE: 06 /02 /07

DATE OF JUDGMENT: 27/02/07

APPICANT'S ATT: MR C THOMSON/PN0687

APPLICANT'S ADV: P J ELSRESPONDENT

ATT: MR MIKE POTGIETERN409 RESPONDENT

ADV: T P KRUGER

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