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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTNG DIVISION, PRETORIA)

 

Appeal case No: A507/2017

Case Number: 7667/2014

(Court a quo)

11/5/2020

 

(1)           REPORTABLE: YES/NO

(2)           OF INTEREST TO OTHER JUDGES: YES/NO

(3)           REVISED.

 

 

In the mater between:

 

Pierre Pienaar                                                                                             Appellant

 

and

 

Silver Lakes Homeowners Association                                                   Respondent

 

JUDGMENT

 

Strijdom AJ

Introduction

 

1.    In this matter the main application and the counter application was heard by the court a quo on the 30th of November 2016.

 

2.    On the 30^th of June 2017 the court a quo dismissed both the Respondents’ main application as well as the appellants’ counter application.

 

3.    On the 7^th of September 2017, the Court a quo; granted the appellant leave to appeal to the Full court of this division.

 

4.    The only aspect to be considered by the Court is whether the Court a quo erred in dismissing the appellants[1] counter application.

 

Background

 

5.    The main business of the Respondent is to promote and protect the communal interests of residents of Silverlakes Estate. They carry out its duties in terms of the rules and constitution. The Estate is in an enclosed area and the residents are obliged to pay levies.

 

6.    The Respondent has erected control devices at the entrance. The Appellant who resides in the Estate, was provided with the biometric fingerprint access.

 

7.    A dispute arose between the Appellant and the Respondent regarding the payment of levies and subsequently the Appellants biometric fingerprint access facility was deactivated. The Appellant had to use the visitor’s entrance or tailgate to access his residence. Every time that the Appellant tailgated, he was issued a fine. Eventually, he started to blockade the entrance with his vehicle.

 

8.    On 22 September 2014 the Appellant’s biometric fingerprint access facility was reconnected. From that day he did nothing further to obstruct the entrance.

 

The grounds of appeal

 

9.    In broad terms the following are the grounds of appeal:

 

9.1.       The Court a quo should have found that the Respondent has no right to restrict or hamper the access of the Appellant.

 

9.2.       The Court a quo should have found that insofar as the Respondent hampers or restricts the Appellant’s access, it is acting unlawfully and that in those circumstances the Court was duly bound to then declare the restriction of access of residents to the residential estate by the Respondent to be unlawful and prohibit the Respondent with such unlawful conduct.

 

9.3.       The Court a quo should have found that the structures on Erf 168 are illegal and that the building plan approval dated the 12th of June 2015 was irregular.

 

9.4.       The Court a quo erred in finding that the local authority should have been joined to the proceedings for purposes of the relief sought against the Respondent.

 

The Issues in dispute

 

10. What remains is the relief sought by the Appellant being:

 

10.1.    A declarator that restriction of control is unlawful;

 

10.2.    That the Respondent be prohibited to restrict or control the access of the residents, and ordered to remove barriers or booms which may prohibit residents from obtaining free access;

 

10.3.    A declarator that the structures on Erf 468 are illegal;

 

10.4.    That Respondent be afforded 90 days to obtain approved building plans, failing which a demolition order would be obtained.

 

11. In the absence of factual error or misdirection on the part of the Court a quo, its findings are presumed to be correct. This was also held to be the position in S v Bailey 2007 (2) SACR 1 (C) and Minister van die Suid-Afrikaanse Polisie en ‘n ander v Kraatz en ‘n ander 1973 (3) SA 490 (A). This principle has been confirmed and properly enunciated in S v Hadebe and others 1997 (2) SACR 641 (SCA).

 

The Evidence

 

12. The evidence is based on affidavits and can be summarised as follows:

 

12.1.    The Respondent’s founding affidavit is deposed to by the chief executive officer. He stated that the Appellant obstructed and blocked the entrance to the Estate. He tailgated into the Estate.

 

12.2.    The Appellant stated in his rebuttal the common cause facts. He mentions the dispute regarding the payment of levies. He stated the deactivation of biometric fingerprint access, his blockade and tailgating. He contends that his conduct was caused by or the consequence of the illegal deactivation.

 

12.3.    The Appellant introduces the counter claim in paragraphs 2.1 and 2.2 [2] and stated that the Respondent has no authority to restrict his access. He contends that the internal rules by virtue of which such access restrictions have been sanctioned by the Respondent are in conflict with the prevailing Town Planning Scheme and are invalid and unenforceable.

 

12.4.    The Respondent’s answer to the counterclaim deals with various points raised by the Appellant[3]. The Respondent dealt with the alleged lack of authority, the building plans for Erf 168 and Erf 1471 and raises the point in limine of non-joinder of the local authority.

 

Non-joinder of the City of Tshwane Metropolitan Municipality.

 

13. The counter application by the Appellant pertains to alleged unlawfulness and illegal structures on the two Erven 168 and 1471.

 

14. The Court a quo held that;” The final straw in the way of the Respondent’s (Appellant’s) counter claim is the non-joinder of the local authority[4].”

 

15. The assertion that the building plans had not been approved is a factual one. The Respondent has shown that the plans were approved.

 

16. If, the Appellant’s grounds for the counter application, are to be interpreted on the basis that the plans should not, or could not, have been approved, the counter- application is in essence an application in which the municipality should have been joined as an interested party. The Respondent accepted the Appellant’s challenge to produce building plans for the structures erected on Erven 1471 and 168. Such building plans were attached to the Respondent’s Replying Affidavit marked Annexure “SL 22” in respect of Erf 1471 and it is stated that the original plans were approved on the 4^th of December 2001 followed by an approval by the erstwhile Kungwini Local Municipality on the 10^th of January 2002 as well as alterations that were approved by the same local authority on the 8^th of May 2006.[5]

 

17. The Respondent moreover attached annexure “SL 23” which relates to Erf 168 and states that same was approved by the City of Tshwane Metropolitan on the 16^th of November 2012.[6]

 

18. It was submitted by the Respondent that the Appellant should not be allowed to raise illegality of the structures. He has unduly delayed taking action in this regard having regard to the fact that he had not raised any objection since 2006.[7]

 

19. Where the municipality is accused of unlawfulness, it should be provided with an opportunity to answer to such allegations. The approved plans exist and can have legally valid consequences.

 

Restrictions and access control

 

20. The Appellant relies on the conditions in the zoning certificates in respect of the Erven in which the two entrances to the estate, Erf 168. Silver Lakes Township and Erf 1471. Silver Lakes Extension 2 Township, had been erected, provided that: “provided further that the local authority and all residents of the township shall have free access over the erf.”

 

21. The Appellant further relies on the Peri Urban Areas Town Planning Scheme of 1975 which provides as follows: “No consent granted by the local authority in terms of the provisions of this scheme shall be construed as conferring upon any person the right to use any land or erect or use any building in any manner or for any purpose which is prohibited by any other legislation controlling the use of the property.

 

22. The Appellant also relies on the fact that the roads within the estate which include access roads, are public roads and the bylaws and road ordinances are applicable to those roads.

 

23. The Respondent controls access in terms of the conditions of establishment. The provision that the control of access should be exercised in such a manner that the local authority and the residents have free access over the erf does not in my view affect the respondent’s right to control access (as long as access is not denied to the residents). The fact that the Respondent uses booms to control access, does not mean that the local authority and residents are denied free access over erven 168 and 1471. It merely means that the free access is controlled or monitored through a system which had been in place and respected by the 1600 members of the Respondent for many years. The townships were established in 1992, and the Appellant has been living in the estate since 2004.[8]

 

24. The zoning for the erection of a gatehouse, suggests the presence of a gate at the gatehouse. In terms of the zoning the gatehouse will serve as a control point for access. This suggests that the free access may be controlled at this gatehouse. If the Respondent is entitled to control access, it should be at liberty to use a boom as a tool for exercising its right to control (free) access to the township.

 

25. In my view the Respondent is entitled to control access, at the “control point of access”. Such control does not infringe upon the rights of the Appellant. The Respondent has a duty in terms of its articles of association to protect the communal interests of its members. This duty cannot be fulfilled if residents and members of the public have uncontrolled access to the estate.

 

26.  The Court a quo in my view correctly held that the Respondent was wrong to use the revocation of the biometric fingerprint access facility as a debit collection procedure.

 

The Roads within the Estate and Access Roads

 

27. It was submitted by the Appellant that the roads within in the Estate and the  access roads are public roads and bylaws and road ordinances are applicable to those roads.

 

28. It was further argued by the Appellant that the internal roads of the residential estate vests in the local authority and for that reason, as part of the conditions of establishment, Erven 1471 and 168 may be utilised as access erven, but access to the local authority and residents of the residential estate may not in any way, be restricted. It was further pointed out that in terms of Section 63 of the Local Government Ordinance, 17 of 1939: “63 (1) The Council shall have the control and management of all-

(a)  Road, streets…

(b)……

(c)……

(d)……

Which have been or shall be at any time set apart and appropriated by proper authority for the use and benefit of the public, or to which the inhabitants of the municipality shall at any time have or acquire a common right, and the same shall be vested in the council in trust to keep same open (save as is otherwise provided in this ordinance or any bylaw) and in repair so far as the finances of the council will permit, for the use and benefit of the inhabitants.”

 

29. The Respondent contends that the roads do not seem to be public roads where the general public does not have access to the roads within the estate and the roads had not acquired the character if public roads.

 

30. Section 1 of the National Road Traffic Act 93 of 1996 defines a ‘public road’ as ‘any road, street or thoroughfare or any other place which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access.

 

31. The test to be applied in terms of the definition is whether a section of the public at least commonly uses the area or has a right of access (as opposed to access by invitation direct or implied) thereto[9].

 

32. In casu the estate is enclosed by a fence. All ingress and egress to the estate is controlled. Gated access points are controlled by security guards and booms. Visitors do not have uncontrolled access to the estate. In respect of owners or residents, biometric scanning is employed. The Association is obliged to provide security in the estate as it deems appropriate.

 

33. The general public does not have access to the roads within the estate. It was held in Mount Edgecombe Country Club Estate Management Association 11 RF NPC/ Nemesh Singh and Others[10] that in this context the word “public” does not include persons who are there with the permission of the owners of property within the estate. The public, so it has been held, must be the general public, not the special class of members of the public who have occasion for business or social purposes to go to the estate and the use of the roads by the public must be more that mere casual or isolated use.[11]

 

34. The non-owners who are permitted to enter the estate are persons who are there with the authority and permission of the owners, and are not to be regarded as forming part of the ‘public’ for the purposes of the definition of ‘public road’.

 

35. It was further held in the Edgecombe case supra that “When the respondents chose to purchase property within the estate and become members of the Association, they agreed to be bound by its rules. The relationship between the Association and the respondents is thus contractual in nature. The conduct rules, and the restrictions imposed by them are private ones, entered into voluntarily when an owner elects to buy property within the estate. By agreement the owners of property within the estate acknowledge that they and their invites are only entitled to use the roads laid out within the estate subject to the conduct rules.”

 

36. This, in my view is certainly not a case in which a thorough reading of the record leaves me in any doubt as to the correctness of the Court a quo’s findings.

 

37. It follows that the appeal is devoid of any merit and accordingly falls to be dismissed.

 

38. In the result the following order is made:

 

38.1.    The appeal is dismissed with costs, including those, consequent upon the employment of two counsel.

 

 

 

J.J STRIJDOM AJ

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

I AGREE AND IT IS SO ORDERED

 

TLHAPI J.

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

I AGREE

 

WANLESS AJ

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA.

GAUTENG DIVISION, PRETORIA

 

DATE HEARD: 18.03.2020

JUDGEMENT

 

COUNCEL FOR THE APPELLANT:

ADV, J. A. VENTER

 

INSTRUCTED BY:

E W. SERFONTEIN E ASSOCIATES INC,

 

COUNCEL FOR THE RESPONDENT:

ADV ARNOLDI SC.

 

INSTRUCTED BY:

JENNINGS INCORPORATED

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