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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

                                                                                  

UNREPORTABLE

CASE NO: 10864/02

DATE: 25/02/2009

In the matter between

SERGIO MATEUS PAIS MAMEDE 1^st Applicant

MARIA CECILIA DA SILVA MENDOCA PAIS MAMEDE 2^nd Applicant

DAVID EDWARD DENNY BLACK                                              3^rd Applicant

And

THE STRATEGIC EXECUTIVE: DEPARTMENT OF HOUSING,       

CITY PLANNING, LAND AND ENVIRONMENTAL PLANNING              

OF THE CITY OF TSHWANE 1^st Respondent

THE MANAGER: THE CITY OF TSHWANE METROPOLITAN

MUNICIPALIY 2^ndRespondent

THE CITY OF TSHWANE METROPOLITAN

MUNICIPALITY 3^rd Respondent

AART SPARENBURG GEYER 4^th Respondent

JUDGEMENT

MOLOPA J

The applicants have launched a review application in terms whereof, initially, they sought the following relief:

                                                                                                 

1. That the decision of the Third Respondent taken in approximately  September, 2000, in terms whereof it approved building plans and the site development plans pertaining to a dwelling house to be built on Portion 2 of Erf 2026, Faerie Glen Extension 3, Pretoria, be and is hereby reviewed and set aside;

2. That the Fourth Respondent be and is hereby ordered to cause all and any structures or buildings erected on Portion 2 of Erf 2026, Faerie Glen Extension 3, Pretoria, to be altered and/or demolished so as to comply with the Pretoria Town Planning Scheme 1974 within 30 [thirty] days hereof;

3. Alternatively to the above paragraph, an Order compelling the First, Second and Third Respondents to ensure compliance by the Fourth Respondent of the Pretoria Town Planning Scheme 1974, by altering or demolishing in whole, or in part, the structures and/or buildings erected on Portion 2 of Erf 2026, Faerie Glen Extension 3;

4. That Third Respondent, alternatively Fourth Respondent, alternatively Third and Fourth Respondents, jointly and severally, pay the Applicants’ costs;

5. Further and/or alternative relief.

All the respondents noted their intention to oppose. Subsequent thereto the first to third Respondents (hereinafter referred to as “The Third Respondent”) served a copy of the record on the applicants in terms of Rule 53 (3) of the Uniform Rules of the Court (“The Rules”). The applicants then filed a supplementary affidavit in terms of Rule

 53 (4) of the Rules, incorporating a report of Mr. J.D.R. Bryant, an expert in the field of architecture. The third and fourth Respondents respectively filed their Answering Affidavits on 13 December 2002 and 11 October 2002 to which the Applicants filed their replying Affidavits on 5 June 2003.

During April 2005, I guess due to the lapse of time with the Applicants not setting the matter down, the Fourth Respondent set the application down on the opposed motion roll for hearing on 17 August 2005. Prior to the hearing of the application aforesaid, the Applicants, during June 2005 served and filed a notice of application for amendment in terms of Rule 28 of the Rules.

The relief sought in the amendment aforesaid is as follows:

“1.        That the decision of the Third Respondent taken in approximately September 2000 in terms whereof it approved building plans and site development plans pertaining to a dwelling house to be built on Portion 2 of Erf 2026 Faerie Glen Extension 3, Pretoria, be and is hereby reviewed and set aside;

2.         That it is hereby declared that the building on the property      of the Fourth Respondent (hereinafter referred to as “the building”) offends against the provisions of section 7 of the National Building Standards and Regulations Act, No 103 of 1977, in that it encroaches upon the applicants; properties to such an extent that:

1. The building was erected in such a manner and is of such an appearance that the area in which it was erected is disfigured thereby and/or

2. The building is in fact unsightly and objectionable and/or

3. The building has already derogated from or will in future derogate from the value of the applicants’ neighboring property; and/or

4. The building will probably or in fact be dangerous to the life and property of the applicants;

3. That the Fourth Respondent be and is hereby ordered to cause all and any structures or buildings erected on Portion 2 of Erf 2026 Faerie Glen Extension 3, Pretoria to be altered and/or demolished within thirty days thereof so as to comply with the Pretoria Town Planning Scheme, 1974 and the National Building Regulations and Standards Act, No 103 of 1977;

3. Alternatively to paragraph 3 herein, an order compelling the First, Second and Third Respondents to ensure compliance by the Fourth Respondent of the Pretoria Town Planning Scheme, 1974 and the National Building Regulations and Standards Act, No 103 of 1977, by altering or demolishing in whole or in part structures and/or buildings erected on Portion 2 of Erf 2026 Faerie Glen Extension 3;

3. That the Third Respondent alternatively Fourth Respondent  alternatively  Third and Fourth Respondents, jointly and severally, pay the applicants’ costs;

3. Further and/or alternative relief.”

The First and Second Applicants, who are husband and wife, the Third Applicant herein and the Fourth Respondent are neighbours, all residing at portions 3, 1 and 2 respectively of Erf 2026 Faerie Glen Extension 3. The Applicants and Fourth Respondent duly built houses on their respective stands.

From the papers it appears that the Site Developments Plans(“SDP”) for the First and Second Applicants’ property were approved by the Third Respondent on/or about 29 Septemer1994 under reference no 4941/94/2 and the building plans were approved on or about 1 June 1995 under plan reference number 2459/95/2. Refer “ALVDM2” and “ALVDM3” on pages 545 and 546 of the pleadings bundle.

The  SDP of the Third Applicant’s property were approved by the Third Respondent  on 23 March 2000 under reference number 319/99, and the building plans were approved on 05 July 2000 under reference number 4156/99. Refer Annexure “ALVDM5” and “ALVDM6” on pages 552 and 555 of the pleadings bundle.

The SDP and the building plans of the Fourth Respondent were  approved by the Third Respondent on 11 October 2000 under reference number 456/00 and 5213/00 respectively. Refer Annexure “ALVDM6” and ALVDM7 on pages 555 and 564.

The Fourth Respondent’s house was built and completed during on about August 2001. From the correspondence contained in the record it clearly appears that from around June 2001 when the Fourth Respondent had almost completed the structure on his property, his neighbours had some problems with the appearance of such structure (calling it a monstrosity), as a result of which the first Applicants and/or the son Paulo Mamede  engaged the third Respondent’s officials through correspondence, refer record pages 50 to 74, and Annexure SPM 11, pages 121, 122 and 123 of the pleadings bundle. The Applicants further instructed their attorneys, FRIEDLAND HART INCORPORATED to take issue with the Third and Fourth Respondents in this regard. Refer record pages 62, 64 71, 74 and Annexure SPM 9 and SPM10, pages 116 to 119 of the pleadings bundle.

As seen from the correspondence filed of record, (refer pages 41 to 74, 213 to 254 of the record), and as appears from the Answering Affidavit of the Respondents read with the Applicants’ Replying Affidavits, the Third Respondent through correspondence and various meetings held with interested parties, i.e. the Applicants, the Fourth Respondent and their representatives (Attorneys, Architects and land Surveyors) as well as from inspecting the Fourth Respondent’s house/structure tried to get the parties to reach an amicable solution.

The Third Respondent, amidst complaints by the Applicants, found that on the various complaints by the Applicants, the Fourth Respondent had complied with the legislation, by laws and regulations governing  building, in that on the inspection of the fourth Respondent’s property  by the Third Respondent’s official(s) it was found that the main structure was in fact constructed in strict compliance with the approved building plans, however it was established that the Fourth Respondent, in conflict with the approved Building plans, had constructed a lower level which does not comply with the definition of basement as defined in the scheme (on the South Western garage portion), therefore, technically, this rendered the Fourth Respondent’s building as a 3 storey building in contravention with the provisions of the scheme.

The Third Respondent issued a contravention notice to the Fourth Respondent on 24 October 2001, (refer page 218 of the record) to rectify the deviations and/or the contravention of the scheme and regulations aforesaid.

The Fourth Respondent had three (3) options in so far as the height of the building is concerned:

• To rezone the subject property in order to obtain rights for an additional store; or

• To demolish the top storey of the building; or

• To excavate the floor level of the bottom storey and fit  a ceiling at the correct level in order for the bottom storey to qualify as basement so as to comply with the double storey.

The Fourth Respondent apparently opted for the Third option, i.e. to excavate the floor level of the bottom storey, refer pages 194-195 of the pleadings bundle.

 

 The Third Respondent was apparently satisfied with the construction work (to excavate). After completion of the excavation aforesaid, the Third Respondent was satisfied that the building now complies with the Town Planning scheme and constitutes a two storey architecturally designed building

Apparently, amongst others, the Applicants were not amenable to the third option (excavation of the floor level) proffered by the Fourth Respondent and subsequently approved by the Third Respondent, hence the review application herein which was launched/issued on 17 April 2002( six months after the contravention notice aforesaid was issued).

The crux of the main contentions by the Applicants is as follows [I shall deal with the headings as tabulated by the Applicants]:

• That the structure erected by the Fourth Respondent on Portion 2 fails to comply with the provisions of the

Scheme in that the structure constitutes a three storey building;

            The Applicants contend that the Fourth Respondent’s house comprises three storeys, on the other hand the Third and Fourth Respondents contend that the Fourth Respondent’s house comprises two storeys and a basement.

 In terms of the Pretoria Town planning scheme 1974 (“The Scheme”), the height “of the buildings shall not exceed two storey. The Fourth Respondent’s building/house falls under this category.

As already mentioned above the Fourth Respondent had, in contravention of the approved building plans, constructed a lower level which did not comply with the definition of basement as defined in the scheme. A basement is defined in clause 4 of the scheme as follows:

 “…any portion of a building complying with the provisions of clause 13(5), the floor of which is 2m or more below the mean natural ground level of the ground covered by the building, and of which no part of the ceiling is more than 1m above such mean level.”

 The contravention aforesaid in practice rendered the Fourth Respondent’s building/house as a three storey building in conflict with the provisions of the scheme, as result of which, the Fourth Respondent, after inspection  of his building/house by the officials of the Third Respondent, and the contravention aforesaid having been discovered, was served with a contravention notice dated 24 October 2001 in terms whereof he had to “fix” the floor level of the bottom storey and fit a ceiling at the correct level for the bottom storey to qualify as a basement.

To this extent, the Fourth Respondent excavated the floor level of the bottom storey/basement to bring it within the parameters of the definition of a basement. The basement aforesaid is used as a garage to park vehicles and is therefore excluded from a definition of storey. A storey is defined in the South African pocket Oxford dictionary as follows:

 “A part of a building made up of all the rooms that are on the same level.”

From the above it is clear that the Fourth respondent’s building/house, after excavation aforesaid, complies with the provisions of the scheme and is  a two storey structure. The fact that the height of the structure is high does not necessarily mean that it is a three storey building as the Applicants seek to hold, since they are of the view that the excavation and the lowering of the ceiling of the Fourth Respondent’s house is superficial and cosmetic since this would not bring down the height of the Fourth Respondent’s house. This does not detract from the fact that the basement has been remedied to bring it up to compliance with the provisions of the scheme as already stated above. Also, it is clear from the above that what the Applicants really sought was to have the Fourth Respondent’s structure brought down/demolished when they initially brought this application.

The Applicants further contend:

• That the structure erected by the Fourth Respondent on Portion 2 encroaches upon relevant building restriction areas as defined in the Scheme;

• That the conditions stipulated by the Third Respondent in respect of the encroachment of a building restriction area were not met by the Fourth Respondent in this instance, whereof the Third Respondent therefore acted ultra vires in allowing the encroachment;

The Applicants aver that an interpartite agreement, as a prerequisite of the Third Respondent, should be entered into between the registered owner(s) of the property requiring encroachment and the registered owner(s) of the adjacent property affected by such encroachment. That the Fourth Respondent has not met the conditions stipulated by the Third Respondent, that therefore the Third Respondent could not and should not have permitted the Fourth Respondent to encroach upon the building restricting areas of the First, Second and Third Applicants.  

It is common cause that the Third Respondent, when approving the building plans of the Fourth Respondent, also approved the encroachments across the building line on the Southern side of the property, i.e. the side encroaching on the First and Second Applicants’ property and across the building line on the Northern side of the property, i.e. the side encroaching on the Third Applicant’s property.

Clause 15A(2)(e)(i)  of the scheme provides as follows:

                                                                           

“15A (2)(e)The City Council may, subject to such conditions as it may deem fit permit-

1. Any building specified in column 1 of Table B1 to encroach on any of the building restriction areas specified in columns 2 and 3 of the said table.”

The above clause clearly empowers the Third Respondent to, in its discretion and subject to such conditions as it may deem fit, allow any encroachments of structures within the building restriction areas. This means that the power to approve, amongst others, building line relaxations, vests exclusively in the discretion of the Third Respondent. There seem to be no statutory requirements in terms of which the Third Respondent is obliged to consult with neighbours, obtain formal approval from neighbours or demand interpartite agreements between neighbours.

Building line relaxations are apparently granted after an inspection in loco and after evaluation of the necessity and impact thereof. As already stated above, there is no statutory requirement in terms of which the Third Respondent is obliged to consult with neighbours and/or obtain formal approval from them and/or obtain interpartite agreements between them. However, due to a huge number of applications for such relaxations, the Third Respondent has apparently in principle adopted the practice of interpartite agreements (which are, in their nature, not statutory requirements) where necessary refer page 185 to 186 of the pleadings bundle. This does not, in my view, detract from the fact that the Third Respondent has a discretion to approve or disapprove encroachments/building line relaxations, even where the neighbours have consented thereto, depending , of course, on the circumstances of each case.

In so far as the encroachment on the side of the First and Second Applicants is concerned, the stairwell of the fourth Respondent’s main building is 1.935m away from the boundary wall instead of 4.5m, and the storeroom next to the garage area is 0.285m away from the boundary wall.

In this regard, It is not in dispute that on or about June 2000, prior to the approval of the Fourth Respondent’s plans, the Fourth Respondent attended to the house of the First and Second Applicants to obtain permission for transgressing the building line restriction (on their side), where he had discussions with the Second Applicant and their son (Paul Mamede), since First Applicant was not present at the time.

The Fourth Respondent even gave their son his plans, and the son undertook to discuss these with his father. Apparently approximately   10 days thereafter the son duly gave the Fourth Respondent an envelope containing a signed consent. It is not disputed and/or denied in the First Applicant’s replying affidavit that the Fourth Respondent did provide the First and Second Applicants with his plans, through their son, prior to the First Applicant signing his consent. Annexure SPM8, page 115 of the bundle of pleadings, clearly shows the signature of the First Applicant consenting to such encroachment. The Third Respondent approved the encroachment when the Fourth Respondent’s plans were approved based on this consent/signature of the First Applicant on Annexure SPM8 aforesaid.

The First and Second Applicants contend that since they are married in community of property and they are joint owners of the property,  the Third Respondent should not have accepted the signed consent since it was only signed by the First Applicant . Obviously the Fourth Respondent would not have known that the Applicants are joint owners. This envelope came from the Applicants; one would have been entitled to assume that everything was above board that the First Applicant, on behalf of the family consented to such encroachment, having had a discussion with his son after the son had seen the plans. If the First Applicant wanted his wife to also sign the consent, he would not merely have put a note in the envelope, as he alleges, which note, was apparently not seen by the Fourth Respondent and/or officials of the Third Respondent, he would have communicated this, verbally, to his son Paulo Mamede.

In my view, although the agreement/form in question was incomplete when signed by the First Applicant, the signature aforesaid clearly indicates his intentions to consent to the encroachment, and it is on this basis that the plans and the encroachment on his side were approved by the Third Respondent. Now that there is animosity between the parties, the First Applicant seeks to renege from such consent. In any event, as already mentioned above, the Third Respondent has in terms of the provisions of the scheme, discretion to allow encroachments.   

• In so far as the encroachment on the side of the Third Applicant is concerned, the Third Respondent found such to be so minimal or minor that it did not require an interpartite agreement between the Third Applicant and the Fourth Respondent. The corner of the living area is 2.9m away from the common boundary, whereas the building line ought to have been 3.75m, thus an encroachment of about 800mm over a distance of plus or minus 2m. The Fourth Respondent applied for and was granted permission for this encroachment by the Third Respondent simultaneously with the approval of his plans. The Applicants attack this permission on the basis that it constitutes unreasonable administrative action.

In essence the Third Applicant is of the view that there has been some inconsistency in that he was required, when he submitted this building plans to the Third Respondent, to obtain the consent of his neighbours. Apparently the encroachment applied for by the Third Applicant were substantial in nature relating to the open architectural design to the South, overlooking the lower lying properties of what would have been the Fourth Respondent property and the First and Second Applicants’ property. Looking at the topography of the area where the properties of the parties  are situate, the Third Applicant’s property is the highest lying of the three properties, which clearly slopes down to the South. Refer ALVDM 11, 12 and 13. The Third Respondent in exercising its discretion considered the Fourth Respondent’s encroachment to be minor and not worthy of the interpartite agreement, as opposed to the Third Applicant encroachment which was considered to be substantial in nature. From the facts it cannot be said that the Third Applicant was discriminated against.

The Applicants further contend:

• That the nature and height of the dwelling erected on Portion 2 by the Fourth Respondent and the Third respondent’s misguided decision to approve the building plans associated therewith, have prejudiced the Applicants in that it has created a substantial infringement on  their privacy;

The Applicants aver that their privacy has been compromised by the height of the structure erected on the Fourth Respondent’s property in that the Fourth Respondent has direct views into their bedrooms as well as over their secluded entertainment/pool and living areas.

            From the reading of The Scheme, there is no statutory restriction on the height of a multi-storey structure, for as long as it complies with the provisions of Table F, which requires the structure in the category of houses in the area of the Applicants and the Fourth Respondent to be a two-storey structure/building. The Fourth Respondent’s house is a two-storey building; hence the structure complies with the provisions of the scheme.

            To address the concerns of The First and Second Applicants, The Fourth Respondent has fitted obscured glass on the windows on the Southern side overlooking their property and/or areas complained of, i.e. on the stair-well and the scullery. This thus makes it impossible to look into the house of the First and Second Applicants. The other areas of the Fourth Respondent’s rooms do not seem to have a view to the First and Second Applicants’ property. Refer par. 3.21.3 to 3.21.6 of  the Fourth Respondent’s answering affidavit, p299 of the pleadings bundle.

            In so far as The Third Applicant’s concerns about the alleged invasion of his privacy is concerned, there does not seem to be an area (living rooms) on the northern side of the Fourth Respondent’s house from which he can intrude upon the privacy of the Third Applicant.

            Generally, the topography of the area along which the properties of the Applicants and the Fourth Respondent are situate, is such that there is a slope downwards from the north (from Third Applicant’s property) to the south (to Fourth Respondent then to First and Second Applicants’ properties). This, in my view, coupled with the increased densification in metropolitan areas as herein (in Tshwane), is bound to have an impact on the privacy of various individuals/residents, including the parties herein refer pages 226, 235 and 532 to 535 of the pleadings bundle In this case, The Fourth Respondent, as already stated here above, minimized the impact by fitting obscured glass on the windows overlooking the First and Second Applicants where there would have been a clear invasion of their privacy.

The Applicants further contend that:

• That the nature and height of the dwelling erected on Portion 2 by the Fourth Respondent’s misguided decision to approve the buildings plans associated therewith, prejudiced the Applicants in that it created a diminution in the value of their properties;

 The Applicants (especially the First and Second Applicants) aver that the building of the Fourth Respondent has devalued their property. This is based upon the findings of one Mr. Jacob Moolman (“Moolman”), who prepared a valuation report for them.  In this regard there is a dispute on whether the Fourth Respondent’s property has decreased the value of the First and Second Applicants’ property as, on the one hand Mr. Moolman aforesaid, who has been commissioned by the Applicant, says that  the value of the  First and Second Applicants’ property has diminished, and on the other hand , Mr. Griffiths, who has been commissioned by the Fourth Respondent says that in fact the Fourth Respondent’s property enhances the value of the properties in the vicinity/location, including the value of the Applicants’ properties, and, obviously, this court cannot make a finding in this regard. Counsel for the Applicants indicated that the Applicants, for the above reason will not be pursuing prayer 2.1-2.3 of their amended Notice of Motion.

Further, at the end of his argument, Counsel for the Applicants indicated that the Applicants are no longer pursuing an order for the demolition of the Fourth Respondent’s property, that they will only seek the altering of the property aforesaid should the court find in their favour.

            The Applicants further contend:

• That the roof area of the building erected by the Fourth Respondent on Portion 2 could effectively render the structure a four storey building which would obviously compound the invasion of the Applicants’ privacy and exacerbate the diminution of the value of their properties.

The Applicants believed that the Fourth Respondent intended using his roof as a roof garden, which would render his property a four storey building. Further, the Applicants aver that such use of the roof would compound the invasion of their privacy and exacerbate the diminution of the value of their property.  

 

Looking at the roof area of the Fourth Respondent house it is very clear that there is no way that the roof could be used as an entertainment area and/or roof garden. Amongst others on the roof there is a geyser, an air condition compressor, a TV antenna and the fire place outlet. Further the stairs complained of leading to the roof aforesaid are clearly for maintenance purposes; otherwise if there were to be a problem with any of the items on the roof, i.e. the geyser and/or TV antenna, how else would anyone reach the roof to fix these.

            The Applicants further contend:

• That the decision by the Third Respondent to approve the site development and building plans pertaining to the structure to be erected on Portion 2 amounts to unreasonable administrative action due to the fact that the Third Respondent failed properly to apply its mind, which renders the action of the Third Respondent not only unlawful but also unreasonable and procedurally unfair;

The Applicants aver that the Third Respondent could not have applied its mind in approving the Fourth Respondent’s site development plans and building plans because of the concession made by the Third Respondent that (initially) the dwelling house erected by the Third Respondent amounted to a three storey.

The building plans approved by the third Respondent were correct and in compliance with the scheme and the NBRBSA. The fact that initially the Fourth Respondent deviated from the approved building plans does not render the decision of the Third Respondent to approve such plans unreasonable, unlawful and procedurally unfair. Hence, after discovering the deviation by the Fourth Respondent from the approved plans, the Third Respondent issued a contravention notice against the Fourth Respondent, which implored him to act to comply with the approved building plans.  

Surely the plans approved by the Third Respondent related to a two storey building, It was the Fourth Respondent who had initially deviated from the approved plans and built a basement which did not accord to the correct measurements, such that it rendered the house a three storey building, to which the Third Respondent after recovering such fact, issued a contravention notice, as a result of which the Fourth Respondent had to excavate to correct the building thus bringing it within a two storey building. It is not in dispute that the Applicants basically have a gripe with the height of the structure on the Fourth Respondent’s property. However, it is so that the scheme has no restriction on the height of the structure within the category of the Applicants’ dwelling house as long it is a two storey building as contemplated in clause 23(1), Table F of the Scheme, refer page 56 of the pleadings bundle.

It is clear from the reading of their application papers throughout, and from the correspondence referred to above, that initially what the Applicants wanted was for the Third Respondent to order the Fourth Respondent to bring down/demolish the whole structure on his property. It was only at the end of his argument that Counsel for the Applicants abandoned the prayer for demolishing of the Fourth Respondent’s structure/ dwelling house, rightly so.

The Applicants further contend:

• That the decision by the Third Respondent to approve the site development plans and the building plans pertaining to the structure to be erected on Portion 2 is ultra vires the Scheme in that the Third Respondent failed to enforce their conditions in terms of Clause 15A(2)(e) of the Scheme.

The Applicants aver that the Third Respondent acted beyond its powers in approving the Fourth Respondent’s building plans by failing to take into account the nature of the encroachment to the structure erected on the Fourth Respondent’s property.

As already indicated here above,  the Applicants’ contention is that prior to the approval of the Fourth Respondent’s building plans, the Third Respondent should have required that an interpartite agreement be entered into between themselves and the Fourth Respondent, before the Third Respondent could approve the encroachment on their respective boundary lines.

As already stated, the Third Respondent has discretion to approve or disapprove of encroachments/building line relaxations. From the facts herein an interpartite agreement cannot be said to be a statutory requirement, nor can it be said to be a condition precedent/ perquisite before the Third Respondent can exercise its discretion. The interpartite agreement apparently developed when applications for encroachments/building line relaxations by various residents increased.

I have already dealt with the issues relating to the encroachments on both the First, Second and Third Applicants boundary lines. On the facts before this court it cannot be said that the Third Respondent acted ultra vires.  Clause 15A(2)(e)(i) of the scheme does not stipulate any specific conditions that have to be met by the Third Respondent. It is entirely within the discretion of the Third Respondent. The clause (15A(2)(e)(i)) aforesaid clearly reiterates the discretion of the Third Respondent in such matters.

The Applicants further contend:

• That the boundary retainer wall as erected by the Fourth Respondent that abuts against the house of the First and Second Applicants has deteriorated to such an extent that the First and Second Applicants fear for their safety as well as the safety of their property;

• That the First and Second Applicants have been advised by an engineer (which advise they accept), that the said boundary retainer wall does not comply with Regulation SABS 0400, issued in terms of the NBRBSA;

The First Applicant avers that the boundary/retainer wall which abuts against his house will deteriorate over time since, amongst others, some cracks have emerged and that moisture also seeps through the wall. Further, as appears from the affidavit of one Mr. Dudley de Klerk, that the wall in question has not been designed and specified by a professional civil engineer, thereby creating an unsafe environment for himself, his property and his family.

It is not in dispute that the retainer/boundary wall complained of was built by the Fourth Respondent on the existing wall of the First and Second Applicants by agreement between the First Applicant and the Fourth Respondent when, during construction, there was complaint by the First Applicant about dust created by construction on Fourth Respondent’s property, and the Fourth Respondent offered to build the wall in question. Apparently the Third Respondent was not a party nor had any knowledge to such agreement (between the First Applicant and the Fourth Respondent) aforesaid. At the time of the agreement aforesaid obviously, there was no animosity between the parties.

 From the affidavit of the Third Respondent’s official, Mr. Thomas Alfred Vorster (“Vorster”) refer Annexure “ALVDM15” page 580 of the pleadings record , it was incumbent upon the First Applicant to submit building plans for the wall in question since the wall is located wholly within the boundaries of the First and Second Applicants’ property, this was not done. Further, apparently on the inspection by Vorster aforesaid it was found that the water that is seeping through the wall is caused by the First and Second Applicants’ irrigation system, and that this could be the cause for the cracks appearing on the wall.

On the one hand the Fourth Respondent has obtained a certificate from Conic Mokete consulting Engineers and Project Managers (Pty) Ltd, which certifies that the steel trusses used on the wall in question herein comply with the required SABS specifications. Refer annexure “ASG 2”, page 600 of the pleadings bundle. Also, there are no indications that the wall in question is not safe. Mr. Ferdinand Meyer (“Meyer”) who prepared the certificate aforesaid is of the view that the retaining walls in question are adequate to sustain the soil pressure, implying and/or signifying, in my view, that there is no danger.

On the other hand Mr. Dudley De Klerk (“De Klerk”) avers in his supporting affidavit to the Applicants’ replying affidavit that the wall is manifestly unsafe; that it could suffer a cataclysmic failure at any stage refer Annexure “SMPM6” on page 648 of the pleadings bundle. It must be noted that initially De Klerk had indicated that the wall in question herein did not show signs of structural distress, and that he had not excavated nor inspected the foundations on both sides of the wall, and was thus unable to give an opinion as to whether the wall was safe or not.  Refer Annexure “DDK1” and “DDK2”, pages 407 and 409 respectively, of the pleadings bundle. Looking at the reports by the experts aforesaid (Meyer and De Klerk), clearly there is a dispute on the safety of this wall.

The Applicants seek a declarator that the wall in question is now unsafe and dangerous to their lives and property. As already indicated, on the facts there is a dispute. Whatever the situation may be, the First Applicant allowed the Fourth Respondent to erect the wall in question on his property, and as already mentioned above the Third Respondent was not even part of this agreement, nor was Third Respondent apprised of the agreement aforesaid.

Looking at the wall in question the cracks are clearly visible, however, on the dispute between the experts aforesaid, this court cannot find that the wall is in fact at the risk of falling and/or is endangering the lives or property of the First and Second Applicants and their family. Even if the court were to find that the wall in question has deteriorated as alleged, such finding would have to be against the First and Second Applicants, since the said wall is on their property, and it was incumbent upon them to submit building plans to the Third Respondent for such wall, as contended by the Third Respondent.

On the wall being compliant with the SABS regulations, again there is a dispute between De Klerk and Meyer, Meyer stating that the steel trusses used on the wall by the Fourth respondent do comply with the required SABS specifications, refer Annexure “ASG2” page 600 of the pleadings bundle. A finding that the wall does not comply with Regulation SABS 0400 would again have to be made against the First and Second Applicants since the wall is on their property. It was incumbent upon them, in my view to see to it that the wall fully complied with the regulations aforesaid prior to it being built, and had they submitted building plans for the wall in question, the problem if any would have been avoided.

The Applicants further contend:

• That the Applicants were not afforded the right to be heard before the Third Respondent approved the Fourth Respondent’s building plans;

The Third Applicant avers that the Fourth Respondent did not require his permission in the form of the interpatite agreement to encroach on his side/boundary line, that he was thus not afforded an opportunity to be heard. Further, the Applicants (First to Third) aver, on the authority of ERF ONE SIX SEVEN ORCHARDS CC vs. GREATER JOHNNESBURG METROLOPLITAN COUNCIL AND ANTOHER 1999(1) SA 104 SCA, that they should have been afforded the right to have sight of the site development plans and building plans of the Fourth Respondent before the Third Respondent approved same. In addition that had they had sight of the plans aforesaid they would not have agreed to the encroachment. That since they have not been afforded the right to have sight of the plans aforesaid, they were thus not afforded the right to be heard before such plans were approved by the Third Respondent.

The Applicants are reiterating and/or repeating their contentions relating to the issue of the building lines relaxations/encroachments afforded to the Fourth Respondent by the Third Respondent. These issues have already been addressed here above and same applies herein. Correspondence between the Applicants and/or their Attorneys and the Third Respondent clearly started (from around June 2001) after the building plans and the site developments plans (approved in October 2000) had already been approved, and when the structure of the Fourth Respondent’s dwelling house was already high up and/or almost finished, with only finishing touches left. The letters date from around 14 June 2001, when the building of the Fourth Respondent was almost complete. Clearly what the Applicants mainly seek herein is that prior to the approval of the Fourth Respondent’s site development plans and building plans they should have been informed by the Third respondent, which is in my view absurd and/or  not practical if all residents are going to be consulted before Municipalities can approve of plans. The concerns of the Applicants herein cannot be valid. In any event, on the version of the Fourth Respondent, which is not disputed, and which I accept, he provided the First and Second Applicants and/or their son with his plans prior to the approval thereof by the Third Respondent. In so far as the Third Applicant is concerned the encroachment on his side was minor/ insignificant that the Third Respondent did not deem it necessary to require an interpartite agreement. In any event the Third Respondent duly exercised its discretion as it is entitled.

The Applicants further contend:  

• That the appointment of a building control officer as provided for in Section 5 of the NBRBSA is a jurisdictional fact and is of paramount importance, leading up to the process in terms of which the local authority (the Third Respondent in this matter) approved buildings plans;

The applicants aver that the building plans relating to the Fourth Respondent’s property had been approved by a person who was not appointed as a Building Control Officer in terms of the NBRBSA. That on the authority of Paolo v Jeeva N.O. & OTHERS 2003 (4) All S A 433 (SCA), since the approval of the building plans of the Fourth Respondent by the Third Respondent was not done on the recommendations of a Building Control Officer, and that since this has been held as a pre condition which is a necessary prerequisite prior to the approval of such building plans, that the approval of such building plans by the Third Respondent should thus be set aside.

Mention must be made that already in April 2002 when the initial application was launched and the founding affidavits were deposed to, the Applicants knew that the site development plans  and the building plans of the Fourth Respondent were approved by the aesthetic committee of the Third Respondent. Refer First Applicant’s founding affidavit, pages 23 to 24 of the pleadings bundle.

            It is not in dispute that the site development plans and the building plans of the Fourth Respondent were approved by an aesthetic committee of the Third Respondent, comprised of Messrs Vorster, Schalk Wilhelm Pienaar (“Pienaar”) and John Stegmann (“Stegmann”).

Paolo v Jeeva seems to be distinguishable in my view. In this matter an aesthetic committee comprising of the three gentlemen aforesaid, who are all architects, was established by Third Respondent in terms of section 79 of the Local Government: Structures Act 117 of 1998, which provides as follows:

“(1) A municipal council may-

1.  establish one or more committees(my own underlining) necessary for the effective and efficient performance of any of its functions or the exercise of any of its powers;”…

The members of the aesthetic committee aforesaid duly approved, amongst others, the building plans of the Fourth Respondent. This, in my view is a jurisdictional fact as contemplated by the statutes.

       In Paolo v Jeeva there seems to have been one (1) individual who acted as an individual though having architectural qualifications, who approved of the plans. There is no indication that this person was appointed in terms of any other legislation governing the local authority, as was the case in this matter.

       In distinction with the Paolo vs. Jeeva matter; in this case an aesthetic committee was appointed specifically for the purpose of approving building plans and/or site development plans, and Vorster, Pienaar and Stegmann aforesaid had the necessary qualifications required in terms of the legislation, to perform the duties bestowed on them, including approving building plans refer pages 178,182,185,224, 232, 567 to 569 of the pleadings bundle. This was apparently the situation during the period 1994 to 2001. It is not in dispute that the Applicants’ plans (SDP and building plans) themselves, were also approved through this process, i.e. by the members of the aesthetic committee of the Third Respondent. It will  be absurd in my view to set aside the building plans of  Fourth Respondent on the basis that  they were not approved by Building control officer because then in the same breath I would have to set aside those (plans) of the Applicants themselves, as contended in the Third Respondent’s counter application.  I am satisfied though that here a jurisdictional fact was satisfied.

       Also, surely in setting aside the building plans aforesaid as contended by the Applicants this Court will be creating a precedent for all other building plans and/or site development plans in and around Faerie Glen and/or the whole of Tshwane, within the jurisdiction of the Third Respondent, which were previously approved by the aesthetic committee or its members, of the Third Respondent to, in future, be set aside on the basis that they were not approved by a building control officer.

       As already stated above the Paolo v Jeeva case is in my view distinguishable. The individual who approved the plans there seems to have been just an individual although with relevant architectural qualifications but he was not part of a committee duly appointed by the Municipality/Local authority (as was the case herein), specifically to perform the duties of approving building plans and site development plans as would Building Control Officers do. The three gentlemen who made the aesthetic Committee, Messrs Vorster, Pienaar and Stegman’s expertise and qualifications were not in anyway disputed, as contended by Mr. Puckrin, counsel for the Applicant. The only gripe the Applicants had was that they were not building control officers. Unlike in Paolo v Jeeva, they formed an aesthetic committee as already mentioned, a committee envisaged by Section 79 of the Local Government: Municipal Structures Act 117 of 1998 (“The Structures Act”) which as already stated above provides as follows:

“79(1) a municipal council may –

       (a)      establish one or more committees (my underlining) necessary for the effective and efficient performance of any of its functions or the exercise of any of its powers;…”

I reiterate that clearly the aesthetic committee referred to herein was established in terms of the above Section. Refer page 178 , 528 ,529 of the pleadings bundle.  

       Further, looking at the duties of the three gentlemen forming the aesthetic committee aforesaid, they may be deemed to be building control officers, especially if one has regard to the definition of Building Control Officer in S1 of the NBRBSA, which is defined as follows:

       “Building Control Officer means any person appointed or deemed (my underlining) to be appointed as building control officer by a local authority in terms of section 5;

       From the above definition, and having regard to the description of the duties of Vorster, Pienaar and Stegmann set out in annexure “TAV1” and “ALVDM8” respectively, it is clear that the three gentlemen aforesaid were at all times deemed to function as Building Control officers.

       It appears from the papers that the site development plans and the building plans of the Applicants’ properties herein were also approved by the same Vorster, Pienaar and Stegmann, refer page 530 of the pleadings bundle.

       , that From the facts set out above I cannot find any basis whatsoever to set aside the Fourth Respondent’s building plans on the basis that they were not approved on the recommendation of a building control officer.

       Also, taking into consideration that the Applicants already knew and/or were aware, when they launched their application in April 2002 that the building plans in contention herein were approved by the aesthetic committee aforesaid, as already mentioned above, it is clear that they wanted to make a new case under the guise of an amended application. This point could have been raised from the beginning when the application was initially launched in April 2002; they did not have to wait for the Paolo v Jeeva decision to raise the point almost 5/6 years after the building plans were approved. This, in my view, is an abuse of the court process.

The Applicants lastly contend:

• That the Third Respondent has no statutory authority to approve substantial deviations from approved buildings plans, and therefore acted ultra vires when it approved the Fourth Respondent’s so-called “as-built” plans.

The Applicants aver that the Third Respondent acted ultra vires in that it approved “as built” plans when the Fourth Respondent deviated from the approved plans, in that the Third Respondent approved the Fourth Respondent’s substantial deviations from the approved building plans contrary to the provisions of the scheme and /or the NBRBSA.

Here the Applicants are raising this issue as a new contention/averment in their amended application, which is an issue that arises from the Third Respondent’s answering affidavit, which should have thus been dealt with in their replying affidavit and not raised here as a new issue. It is clear here that the Applicants seek to make a new case under the guise of an amended application.

The building plans of the Fourth Respondent as already stated here above were approved before he commenced with construction of his dwelling house. The revised plans complained of by the Applicants, have apparently been held over (have not yet been approved) by the Third Respondent pending finalization of this matter, REFER PAGE 539 OF THE PLEADINGS BUNDLE.. The Third Respondent, however, is allowed or permitted in terms of section 18(1) of the NBRBSA to approve of deviations and/or amended plans. On the fact ether is no basis for this court to interfere with the functions of the Third Respondent in this regard.

The Third and Fourth Respondents have raised various/several points in limine, mainly relating to undue delay by the Applicants and failure to exhaust internal remedies.

At the commencement of the hearing in this matter, it was agreed by the parties that I should not deal with the points in limine at the beginning of the case as it is usually done in practice, but that I should rather hear the whole argument on both points in limine and the merits of the application, then decide on these at the end of the case.

In a nutshell the Respondents aver that the Applicants have unduly delayed in bringing their application, more specifically relating to the setting aside of the Third Respondent’s decision, based on the Paolo v Jeeva decision as sought by the Applicants.

The respondents contend that the Applicants delayed in bringing their review application, especially regard being had to the fact that that the amended application was only brought in June 2005, yet the building plans sought to be set aside were approved in 0ctober 2000, and the original/initial application was launched in April 2002. That looking at the time factor the Applicants unduly and unreasonably delayed in prosecuting this application. That on the principles of The Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”), this application is time-barred and should be dismissed on that basis.

From the above it appears that The Respondents are of the view that PAJA applies, which is disputed by the Applicants. PAJA came into effect on 31 November 2000.The Fourth Respondent’s plans were approved on 11 October 2000, prior to the coming into effect of PAJA. For this reason I agree with counsel for the Applicants that PAJA is not Applicable here, although when the application was launched PAJA had come into effect.

However, even under the Common law it cannot be said that a party could simply take forever or an unreasonably long time before bringing an application for review. It is only fair and in the interests of justice that such application should be brought within a reasonable time.

 The Paolo v Jeeva argument comes up in the Applicants’ amendment, which was filed in June 2005. As already indicated the Applicants seek to have the decision of the Third Respondent approving the building plans of the Fourth Respondent, reviewed and set aside, on the basis that such plans were approved without a recommendation of a building control officer. The Applicants contend that it only became apparent and/or known to them much late that there was no building control officer involved, and that once they discovered this, they sought the amendment to their Notice of Motion and filed affidavits in support of the amendment in which they, for the first time in 2005 raised the issue of building control officer not having been used in the approval of the Fourth Respondent’s building plans.

From the papers filed, it appears that the Third Respondent filed their answering affidavit on 13 December 2002. the fact that the Fourth Respondent’s building plans were approved by members of the aesthetic committee clearly appears in the affidavit deposed to by Mr. Siwela on behalf of the Third Respondent, refer pages 178 and 185 of the pleadings bundle.

The Applicants themselves knew when they filed their initial application (founding affidavits) that the building plans in contention herein were approved by the aesthetic committee of the Third Respondent, Refer First Applicant’s founding affidavit, page 23 to 24.

Surely the point raised in the amendment did not have to wait until 2005, because when the Applicants filed their replying affidavit on 5 June 2003, they must have seen from the answering affidavit of the Third Respondent that the building control officers were not used instead members forming an aesthetic committee appointed by the Third Respondent were used..

 

 

This point about building control officers, raised in the amended application, should have been taken up there and then, prior to their filing of their replying affidavits, which were, in any event, filed six months after the filing of the Third Respondent’s answering affidavit, (eight months after the filing of the Fourth Respondent’s answering affidavit). Here as well, clearly there was a delay even though the Respondents have not taken issue with this. This to me indicates the slackness of the Applicants in handling this matter.

After the replying affidavit was filed in June 2003 nothing was done until the Fourth Respondent set the matter down for hearing in April 2005. Only thereafter, in June 2005, did the Applicants file their amendment aforesaid.

It surely occurred to the Applicants that their original application was somewhat flimsy, hence they sought to beef it up by raising ‘new points’ under the guise of an amended application, which points could have been raised initially when they launched their application in April 2002. the Applicants clearly, in my view, delayed unduly and unreasonably.

The other point in limine raised by the Respondents is that the Applicants failed to exhaust internal remedies in terms of section 139 of Ordinance 15 of 1986, section 9 of the NBRBSA, which provide for the internal appeal process, which the Applicants dispute on the basis that such internal remedies are only available to a person like the Fourth Respondent and not to themselves. This, in my view cannot be correct. The Act and/or the Regulations do not exclude persons in the position of the Applicants. From the reading of the applicable legislation it is clear that internal processes are available to all persons, including the Applicants.

            From the correspondence between the Applicants and the Third Respondent it is clear that the Applicants for quite some time (from around June 2001) had a gripe with the Fourth Respondent’s property, even calling it a monstrosity. The Applicants themselves, and/or their Attorneys, on their instruction, engaged the Third Respondent because clearly the Applicants were not happy with the structure/house of the Fourth Respondent. Obviously it was known to the Applicants that there must have been building plans approved by the Third Respondent prior to the Fourth Respondent building his house. In my view, when the Applicants did not get any joy from the third Respondent and prior to instituting these proceedings they should have investigated what internal remedies they had and could invoke.

At all times herein they had legal Representatives, but clearly, initially, all they wanted was to have the Fourth Respondent’s house brought down/demolished, hence this application. Only on the second day of the hearing herein did counsel for the Applicant indicate that he was no longer going to pursue the demolishing order.

In my view the Applicants failed to exhaust the internal remedies available to them.

From the aforesaid, it is clear that on all the facts before this court, I am not persuaded that the Applicants have succeeded in establishing a case for the order they seek in their amended notice of motion. The grounds set out in the papers cannot stand.  

From the above, in my view, the Applicants’ case should be dismissed on both points in limine [i.e. the points in limine by both the Third and Fourth Respondents are upheld], as well as on the merits.

In the result the Applicants’ application is dismissed with costs, such costs to include the costs of two counsels in respect of the Fourth Respondent.

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L M MOLOPA

JUDGE OF THE HIGH COURT

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