Clark v Faraday and Another

• Jurisdiction: South Africa
• Judge: Van der Westhuizen AJ
• Judgment Date: 12 December 2003
• Citation: 2004 (4) SA 564 (C)
• Docket Number: 8532/03
• Counsel: A C Oosthuizen SC for the applicant. P B J Farlam for the first respondent. No appearance for the second respondent.
• Court: Cape Provincial Division

Van der Westhuizen AJ:

On 28 October 2003 I made an order in this matter dismissing the application with costs. Here follow the reasons for the order.

Background C

The applicant in this matter resides at 70 Ruyterplaats Estate, Hout Bay, which is a private security estate high on the back slope of Table Mountain with magnificent views over the Hout Bay valley, the harbour, the beach and the bay. Pursuant to deed of transfer No T11110/2002 he is the registered owner of the property at which he resides, being erf 6395 Hout Bay. He purchased this property on 10 December 2001 for the sum of R2,6 million and took transfer thereof on 18 February D 2002. The applicant, together with his wife and daughter, occupy a house on the property consisting of four bedrooms, two of which are en suite, a formal lounge, a dining room and a study. It also has an outdoor entertainment area consisting of a swimming pool, patio and E gazebo. They utilise the property for ordinary everyday living and also do a fair amount of indoor and outdoor entertaining. Naturally the view plays an important role in enhancing the enjoyment of the property and various activities carried out there. F

The first respondent is the registered owner of Erf 4541 Hout Bay. This property is situated on the southern border of the applicant's property slightly lower down the slope. She bought this property, then a vacant erf, of 4 139 square metres in extent on 25 June 2002 and took transfer thereof on 24 October 2002 pursuant to deed of transfer No T89830/2002. G

During September 2002 applicant and his wife first met first respondent and discussions ensued on the topic of first respondent's plans for building on her property and the importance of the view from applicant's property. Applicant and his wife were clearly anxious to ensure that they were to retain their view. First respondent's building plans were approved by the second respondent on 3 April 2003 and construction commenced soon H thereafter. Applicant, being concerned with the nature and extent of the impact that first respondent's dwelling might have on the view from his property, noted the progress of construction work. The laying of foundations of the building commenced during May 2003 and building work proceeded thereafter. By July/August 2003 it became apparent to applicant that a large rectangular building with several levels would I be constructed. By late August 2003 applicant noted that the brick work of the walls to the second level of the building appeared to be complete and certain work commenced on what he assumed to be the roof. On 26 September 2003 applicant's wife spoke to first respondent's husband who advised her that what they were busy constructing was in J

Van der Westhuizen AJ

fact not the roof but an additional level above which the roof would be placed. Applicant and his wife were out of the A country until 5 October 2003 and upon their return held an extensive consultation with their attorney on 8 October 2003 to discuss their fears in relation to the impact that the building would have on their view and the value of their property. At his attorney's suggestion applicant telephoned first respondent's husband on 8 October 2003 and pointed out that he had serious concerns B regarding the building work being done and in particular the blocking of the views from applicant's property. Again on 9 October 2003 applicant's attorney telephoned Mr Faraday suggesting that a meeting be held to attempt an amicable resolution of applicant's concerns. On 10 October 2003 applicant's attorney also held discussions with representatives of the second respondent, a Mr Pitlock and Mr C Windell, which he followed up with letters addressed to 'The Director of Building Survey' and 'The Director of Legal Services', respectively. The applicant's attorney was advised that a report from a duly appointed building control officer in the employ of the second respondent was obtained in respect of the building work on first respondent's property and that a building plan of such work was D duly approved by the second respondent, ie the local authority.

On 15 October 2003 at approximately 17:30 the attorney obtained first respondent's consent to have the papers in this application E served on her attorney. The matter came before me on 20 October 2003 and by agreement was then postponed to 23 October 2003.

The relief claimed

Applicant has now moved for an order in the following terms: F

'1.

That the forms and services prescribed by the Rules of Court be dispensed with and that this matter be heard as one of urgency in terms of the provisions of Rule 6(12).

2.

That a rule nisi be issued calling upon the first respondent to show cause, on a date to be determined, why an order should not be granted: G

2.1

Directing that, pending the final outcome of review proceedings which the applicant intends instituting in terms of the provisions of Rule 53 (the review proceedings) in which the applicant will seek the review, correction and setting aside of the second H respondent's decision to approve building plans submitted by the first respondent in respect of a building to be constructed on Erf 4541 Hout Bay (hereinafter referred to as ''the first respondent's property'') and the application for the granting of interdictory relief (the interdict proceedings), the first I respondent be interdicted and prevented from proceedings with the building work currently under construction on the first respondent's property.

2.2

Directing that such review and interdict proceedings shall be launched within five (5) days of date hereof, failing which this rule nisi shall automatically be discharged. J

Van der Westhuizen AJ

2.3

Directing that first respondent pay the costs of this application or alternatively that such costs be costs in the review A proceedings, and directing that second respondent pay such costs, if any, as may be occasioned by the second respondent's opposition to the relief sought herein.

3.

Directing that, pending the return date of the said rule nisi, the order granted in terms of prayer 2.1 above shall B serve as an interim order and interdict.

4.

Granting to the applicant such further and/or alternative relief as this Honourable Court may deem fit.'

The applicant contends that the building being erected on the first respondent's property will substantially impair and obstruct C the view from the applicant's property and cause irreparable harm. He also contends that the building will be objectionable and will substantially derogate from the value of the applicant's property, and hence, that on the proper interpretation and application of the provisions of s 7 of the National Building Regulations and Building Standards Act 103 of 1977, (the Act), so D applicant contends, the local authority should have refused approval of first respondent's building plans. The only ground relied upon is that the second respondent's decision to approve such plans is not rationally justifiable. However, applicant also contended that the grounds of review may well be supplemented once second E respondent's record of proceedings had been made available to him. At this stage of the proceedings applicant in particular relied on the provisions of s 7(1)(b)(ii) of the Act alone.

The provisions of Act 103 of 1977 F

Section 4 of the Act reads as follows:

'4. Approval by local authorities of applications in respect of erection of buildings

(1) No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act. G

(2) Any application for approval referred to in ss (1) shall be in writing on a form made available for that purpose by the local authority in question.

(3) Any application referred to in ss (2) shall -

(a)

contain the name and address of the applicant and, if the applicant is not the owner of the land on which the building in question is to be erected, of the owner of such land; H

(b)

be accompanied by such plans, specifications, documents and information as maybe required by or under this Act, and by such particulars as maybe required by the local authority in question for the carrying out of the objects and purposes of this Act.

(4) Any person erecting any building in contravention of the provisions of ss (1) shall be guilty of an offence and liable on I ...