IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 6886/07

In the matter between:

KENROCK HOMEOWNERS ASSOCIATION      Applicant

and

JUDGMENT : 10 FEBRUARY 2010

TRAVERSO,AJP

"13.1 General
13.1.1. The intention is to minimize boundary walls, and thereby create a more open rural setting as opposed to a traditional urban one.
.....
13.2.2. A 1,2m high simple black metal fence may be used to enclose the street boundary.
.....

13.3.2 A simple black metal fence may be used to a maximum height of 1,2m on the side / common boundaries.

(It is of note that these provisions are not couched in peremtory terms.)

13.6        Fences not permitted include
13.6.1. Vibracrete type fencing
13.6.2. Timber fences
13.6.3. Face brickwork."

2003 to read as follows:
"1. In terms of clause 13.2.2 and 13.3.2 of the Architectural Design Manual, Bekeart Mesh - 50mm X 50mm X 50mm supported on 125mm diameter machined and treated poles with round tops, to a maximum height of 1,8m on the side and common boundaries" is approved as an alternative to the simple black metal fence of palisade type.

2. In the opinion of the trustees the above-mentioned fencing material does not detract from the aesthetics of the Estate."

"2.1.1 The extent and height of boundary walling is specified in the architectural design manual. In general it is intended to minimize boundary walling and fencing, but where required the use of visually permeable simple metal fences in black will be allowed.
......
2.1.4. Under no circumstances will 'vibracrete' walls or walls in an unsuitable style or colour be allowed.
2.1.5. The use of climbing plants on walls, buildings, trellises and fences and indigenous shrub screens or informal hedges is to be encouraged. Fences covered with creepers are encouraged."

"I suggested to Mr. Clarke that I would eradicate the problem by covering the fence with a creeper. Please confirm which creeper is allowed so I can start covering the fence as per the architectural design manual.

I hope that this issue is now closed."

"Per Alan Mewett's e-mail below, please confirm if I may advise him that the creeper proposal is not an option, and that the Association will commence with penalty levies until such time as his fence is made compliant.

The landscape manual encourages the use of creepers on walls, buildings, fences and trellises but the intent is obviously not to mask a deviation.

I await your instruction before communicating with Mr. Mewett."

The applicant persisted in its demand that the fence be taken down, and sadly the matter was not closed. The dispute continued.   On 3 October 2006, in response to a further demand that the fence be taken down the respondent writes:

"How you interpret my suggestion as a way to resolving a problem of the interpretation of the design manual and to which the trustees are responsible, as a tactic of deviation. I find this rather peculiar.

The following facts need to be considered or at the very least thoughtfulness needs to be encouraged before such drastic measures are taken as per your request.
	I am prepared to take the fence down as per your military style order
	I require a time extension in order to do this for many reasons
	I cannot afford a new fence at this moment in time as the fence that you are asking to be pulled down cost me R20 000 to erect.
	The only constructible fence permitted/allowed is unobtainable to me, reason been (sic), is that I am been (sic) held responsible for a bill that Aiden Rabitte is getting billed for, even though there was no agreement between the fence supplier and myself. I have never met or spoken to anybody from the fence company. Re the construction thereof. Due to these circumstances there is a dispute and he will not supply me with the material.
	Dogs will run amok
	The fines that will be a consequence of there been (sic) no fence with dogs roaming and will be unpleasant for the rest of the homeowners.
	Security reasons.
Once again please supply me with real reasons for the current fence not been (sic) good enough as to serve as a support structure for the imminent creeper. I have decided to go ahead with this action of a creeper in any event so it seems silly to take down a support structure only to replace it with another one. I will be leaving the poles as support structures anyway which surely will not be a problem as they will be covered completely and not visible at all..."

And so the negotiations proceeded until the launch of these proceedings. In this regard the deponent to the applicant's founding affidavit states:

"7.12 On 23 May 2007 Respondent advised the estate manager, Jos Joubert, telephonically that he would take down his fence this week on condition that Applicant waive the penalty levies imposed on him.

8. I am of the opinion, given that this matter was first raised with the Respondent since the erection of the fence in June/July 2006 who has willfully disregarded all requests to remove the fence, that Respondent's offer is not genuine. The offer by the Respondent is conditional and not acceptable to the Applicant At present, penalty levies owed amount to R7880.00."

				10 February 2010