Dyecomber (Pty) Ltd v East Coast Papers CC

• Jurisdiction: South Africa
• Judge: Koen J, Lopes J and Chili AJ
• Judgment Date: 07 November 2013
• Docket Number: AR 469/12
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 18 October 2013
• Citation: 2013 JDR 2571 (KZP)

Koen J:

INTRODUCTION:

[1]

This is an appeal against a judgment of Balton J which resulted in the following order:

'1.

The encroaching structure should be removed.

2.

The applicant is granted the relief sought in paragraphs 1 to 3 of the Notice of Motion'.

[2]

The First and Second Appellants were the First and Second Respondents in the court a quo in an application in which the Respondent, the Applicant in the court a quo, sought the following relief [1] :

'1. (a)

That the First Respondent be and is hereby ordered to remove that portion of the building erected on Lot 1188 Wentworth, Registration Division FT, situated in the Durban entity, Province of KwaZulu-Natal, which encroaches onto Lot 1189 Wentworth, registration division FT, situate in the Durban entity, Province of KwaZulu-Natal (Erf 1189), including that portion which encroaches upon the road servitude over Erf 1189, created by Notarial Deed of Servitude K1063/99;

(b)

That in the event that the First Respondent fails to comply with the provisions of sub-paragraph (a) above within two weeks of the granting of this Order, the Sheriff being and is hereby directed to remove the said encroachment.

2.

That it be and is hereby declared that the Applicant's members, employees and invitees are entitled to have access to those portions of Lot 1182 Wentworth and 1189 Wentworth, of registration division FT situate in the Durban entity, Province of KwaZulu-Natal, which are subject to the road servitude created by a Notarial Deed of Servitude K1063/99.

3. (a)

That the First Respondent pay the costs of this application.

(b)

Alternatively to sub-paragraph (a) above, that the First and Second Respondents jointly and severally pay the costs of this application'.

[3]

The Appellants opposed the application and launched a counter application claiming the following relief:

'1.

that the Third Respondent in the counter-application [2] be joined;

2.

that the Third Respondent in the counter-application be authorised and directed to transfer that portion of the immovable property known as Erf 1189 Wentworth, registration division FT situate in the Durban entity, Province of KwaZulu-Natal which is covered by the building predominantly erected upon Erf 1188 Wentworth, registration division FT, situate in the Durban entity, Province of KwaZulu-Natal to the name of the Applicant [3] from the name of the First Respondent in the counter-application; [4]

3.

That the First Respondent in the counter-application be ordered to pay the costs of this application' [5] .

2013 JDR 2571 p3

Koen J

[4]

An order was granted subsequently for 'oral evidence' to be heard on the following issues:

'(a)

Whether it is fair and reasonable that the applicant's claim against the first respondent in regard to the encroachment forming the subject matter f these proceedings should be limited to one of compensation rather than the removal of the offending structures;

(b)

If so, what the amount of compensation should be'.

It was the hearing of the oral evidence on these issues which came before the court a quo.

[5]

The matter proceeded on the basis that what the court a quo was required to do was exercise its discretion whether to direct that the encroaching structure be removed, or to direct that the Respondent be limited to a claim for compensation [6] with the encroaching structure remaining in situ. If compensation was ordered then the amount of the compensation also had to be determined. After hearing the evidence, the court a quo concluded that, in its discretion, it would be just and equitable that an order be granted directing that the encroachment be removed.

BACKGROUND:

[6]

Erven 1188 and 1189 are contiguous. They were previously part of a larger consolidated property [7] . After subdivision the Respondent bought and took transfer of erf 1189 into its name on 30 November 1999 [8]. Secula Investments (Pty) Ltd took transfer of erf 1188 during March 1999 [9] . The Second Appellant occupied erf 1188 from approximately 1998. The managing director of the Second Appellant at all

2013 JDR 2571 p4

Koen J

material times was a Mr Bilro. During or about 2002 he caused a second level to be added and the roof of the building on lot 1188 to be raised. It is part of these alterations which extends beyond the boundary of erf 1188 and encroaches on to erf 1189, which the court a quo described as the 'encroaching structure' and which it directed should be removed. On 4 February 2008 the First Appellant, of which Mr Bilro is also the managing director, took transfer of erf 1188 [10] .

[7]

A road servitude [11] runs along the boundary of erven 1182 and 1189 where they are adjacent to erven 1183 and 1188. The white wall which appears on photograph 20 in exhibit 'B' and a roller shutter door appearing on photographs 3 and 4 of exhibit 'B' forming part of the building on lot 1188, block this servitude.

SECTION 4 OF THE NATIONAL BUILDING REGULATIONS AND BUILDING STANDARDS ACT:

[8]

Section 4 (1) of the National Building Regulations and Building Standards Act [12] (hereinafter referred to as 'the Act') provides:

'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'.

THE EVIDENCE OF MR WATERS:

[9]

Mr Sam Waters, a fire safety officer with the eTthekwini Municipality within whose municipal area the properties are situated, testified that his duties involve scrutinising plans and inspecting building to ensure that the South African Bureau of Standards' Code 0400 is complied with. He is involved in the administrative process when plans submitted in respect of the proposed construction of and/or alterations to existing buildings are considered to determine whether they should be approved.

2013 JDR 2571 p5

Koen J

[10]

His uncontroverted evidence was that if plans for the building alterations in respect of the building on erf 1188, part of which constitutes the encroachment on erf 1189, had been submitted, they would not have been approved by the municipality. Due to part of the structure also abutting the boundary wall, the owner of erf 1189 would be prohibited from building on their boundary.

[11]

He testified that a building line restriction, prescribing how far buildings need to be apart, must be maintained between buildings. This distance is determined by the area of the openings, resulting from for example windows, in the boundary wall. If the total aperture area on the boundary wall of a structure is say 5 square metres, then the building line from that wall to any other building proposed to be built and required to be kept clear, would be two metres. The maximum distance for which allowance must be made, is 9 metres if the aperture was 500 square metres. The minimum, for anything less than a 5 square metre aperture area, would be 1.5 metres

[12]

It is not disputed that no plans had been approved in respect of that part of the building which encroaches on to the respondent's property. Accordingly, the encroachment constitutes an illegal structure. [13]

[13]

The...