BEF (Pty) Ltd v Cape Town Municipality and Others

• Jurisdiction: South Africa
• Judge: Grosskopf J
• Judgment Date: 13 December 1982
• Citation: 1983 (2) SA 387 (C)
• Court: Cape Provincial Division

Grosskopf J:

The applicant is the owner of land in Bantry Bay. F The second respondent is a trust which is the owner of adjoining land. The trust was established for the benefit of the children of the third respondent. The third respondent is, with the consent of the second respondent, busy erecting a dwelling on this land. The property owned by the applicant and G that owned by the second respondent are situated adjacent to Bantry Steps, which is a thoroughfare used by the public and, it is now common cause, is a public street in terms of the Municipal Ordinance 20 of 1974 and the applicable town planning scheme. The applicant contends that the third respondent's dwelling is in some respects in contravention of title deed H conditions, of the provisions of the applicable town planning scheme and of certain building regulations. The applicant also contends that the relevant building plans were improperly passed by the Municipality of Cape Town (first respondent) acting through the City Engineer (fifth respondent). For convenience I shall refer to the first respondent as the Council, to the second respondent as the trust, to the third respondent as Mr Curitz, to the fifth respondent as the City Engineer, and to the property owned by the trust as the Curitz property. The fourth respondent is the

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Administrator of the Cape Province, who did not take an active part in these proceedings. The applicant now seeks to set aside the approval by the Council of the relevant plans, and to interdict Mr Curitz from continuing with his building until plans have been properly approved. It also asks for a declaration that the erection of the building is in A contravention of the restrictions in the title deeds.

To understand some of the arguments advanced by the parties one has to appreciate the nature of the terrain and the type of structure erected by Mr Curitz. Annexures D and E (pp 43 - 4), IC1 (p 124) and RFH (p 157) provide useful illustrations of the B dwelling in relation to Bantry Steps, and annexure AWBA (p 294) a convenient plan of the area.

Bantry Steps is a thoroughfare for pedestrians leading steeply downwards from Kloof Road to Ravine Road. The Curitz property has vehicular access from Ravine Road, ie, at the lower part of the site. This access is by way of a narrow section of the plot C which leads down to Ravine Road. The Curitz property, which adjoins the steps, also has a steep slope.

To utilise this sloping site Mr Curitz constructed a platform upon which the main living area of the dwelling was built. One side of the platform is a wall built along the boundary of D Bantry Steps, to which I shall refer as the contested wall. The top of this wall is level, which of course entails that the wall becomes higher compared to Bantry Steps as the ground slopes down. Even at the highest point of the site the wall is higher than the ground in its natural state. At the lower end of the site it is of course much higher. At its highest point E the wall is approximately 6 metres high.

After the wall was completed, ground was excavated from the lower part of the site next to the wall, and this ground was used to level the top part of the site. The top part of the site was filled up and converted into a swimming pool area, which is on the same level as the flat roof of the garage. I F use the word garage to include an alleged habitable room which may be constructed as a type of loft to the garage, and to which I return later. The roof of the garage is used as a forecourt. Also on the same level is the second floor of the dwelling.

The dwelling contains a ground floor, the floor of which is about level with the top of the garage door, a second floor G which, as already stated is level with the roof of the garage and adjacent thereto, and a third floor above the second.

The purpose of the contested wall thus differs from point to point. Walking up Bantry Steps with the wall on one's left hand side, one finds that the wall first serves as the outer wall of the garage. When one reaches a point opposite the rear of the H garage, the contested wall changes its purpose and forms the side of a filled in area, in which a swimming pool has been constructed.

The open area consisting of the forecourt area (ie the roof of the garage) and the area around the swimming pool is bounded by a wall on the sides which do not adjoin the dwelling. Thus the contested wall, which serves as the side of the garage and the side of the filled in area, has a further function - its top part serves as an ordinary boundary

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wall for the forecourt and swimming pool area. Although the contested wall appears to be a single structure for its full height, I shall refer to the part thereof which serves as a boundary wall as the parapet wall.

A I now turn to the title deed conditions. Registered against the title deeds of the applicant's property, the trust's property and the adjacent property of one Baigel, which are all three subdivided portions of an original property, are certain conditions imposed by the Council. The following appear in all B three (the numbering is mine, since it varies in the different deeds. I quote the metricated version).

"(1)

that a space of not less than 5,98 metres in width be left in front of all lots fronting or abutting passages; such spaces may be utilised as garages or forecourts;

(2)

that all fences erected adjacent to passages be not more than 1,37 metres high."

C It was common cause that Bantry Steps constitute a "passage" for purposes of these conditions. It is clear that Mr Curitz has built a wall adjacent to Bantry Steps which is substantially higher than 1,37 metres. It is also clear that this wall serves in part as the outer wall of a structure which D was designed and intended as a garage. Whether it was also intended to accommodate a habitable room above the garage is to some extent in dispute, although the garage is tall enough to enable a room to be included within its structure. What is clear, however, is that this unusually tall garage is right up against Bantry Steps.

The first point for determination is whether the above-quoted conditions enure for the benefit of the applicant. The E conditions were introduced at the instance of the Council when agreeing to the subdivision of the previously existing site into the present lots. The question is whether the conditions were intended to operate only for the benefit of the Council, which imposed it, or also for the reciprocal benefit of the F owners of the subdivisions, and their successors in title (see Alexander v Johns 1912 AD 431; Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530 at 532; Ex parte Jerrard 1934 WLD 87; Ex parte Parow Municipality 1942 CPD 316 at 324; Eiffel Mansions (Pty) Ltd v Cohen 1945 WLD 200; Rossmaur Mansions (Pty) Ltd v Briley Court (Pty) Ltd 1945 AD 217; Ex parte Messaris and Anastasiou 1946 CPD 233; G Blanckenberg and Another v Forbes 1955 (3) SA 170 (C); Ex parte Gold 1956 (2) SA 642 (T); Ex parte Florida Hills Townships Ltd 1968 (3) SA 82 (A) at 91 - 2; and Titty's Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others 1974 (4) SA 362 (T)).

The conditions do not in terms indicate for whose benefit they were imposed. Only two of the three relevant title deeds were H placed before the Court, viz those of the applicant and of the trust. Even with the assistance of additional written notes from counsel for the respective parties, it is difficult to understand the exact ambit of these and other conditions because the land descriptions are complicated. This difficulty is compounded by the fact that the Council did not impose completely uniform conditions when agreeing to the subdivision. Although the two conditions quoted above appear in all three title deeds, it seems from the two title deeds before the Court that the

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additional conditions which were imposed at the same time varied as between the three properties. It is for that reason that the numbering of the two quoted conditions also differs, as I have mentioned above. There is no evidence of surrounding circumstances prevailing at the time of subdivision which could A assist in determining whether the conditions were imposed for the benefit, not only of the Council, but also of the owners of other subdivisions.

Fortunately this aspect is not seriously in dispute on the papers, possibly because the content of the conditions suggests that they were intended to enure for the reciprocal benefit of the owners of subdivisions. Thus the founding affidavit states:

B "These conditions were imposed by first respondent (the Council) themselves and there can be very little doubt that they were imposed for the benefit of the Municipality but also for the benefit of the adjoining owners."

This paragraph is admitted by the Town Clerk on behalf of the Council. Since it was the Council which originally imposed the conditions, its evidence about the purpose of the conditions C must in my view carry considerable weight. Mr Curitz also admits the abovequoted paragraph, but continues by qualifying his admission with the statement "that the conditions were imposed for the benefit of any adjoining owners who would be affected by the contravention of such conditions". These, he D contends, include neither Mr Sharp (the deponent to the founding affidavit) nor a certain Lady Ellerman. The reference to Lady Ellerman will become clearer in due course. The reference to Sharp is irrelevant. Although Mr Sharp lives on the applicant's property, he is not, and does not profess to be, an "adjoining owner". The applicant is a company, of which Sharp is only one of five directors, the chairman being Mr K A E Payne. It is this company which is the adjoining owner and which is bringing the present application, not Mr Sharp.

To sum up: the...