Esterhuyse v Jan Jooste Family Trust and Another

• Jurisdiction: South Africa
• Judge: van Zyl J
• Judgment Date: 15 May 1998
• Citation: 1998 (4) SA 241 (C)
• Docket Number: 4611/97
• Hearing Date: 17 March 1998
• Counsel: AG Binns-Ward for the applicant R Stockwell for the first respondent SA Jordaan for the second respondent
• Court: Cape Provincial Division

Van Zyl J:

1.

Introduction

This is an application for a declaratory order that the construction by the first respondent of a certain building on B its property, in terms of plans purportedly approved by the second respondent, is an unlawful contravention of the second respondent's zoning scheme regulations dated July 1996. Further relief claimed includes the review and setting aside of the second respondent's aforesaid approval and likewise of its approval of the first C respondent's application for a building line encroachment for purposes of constructing a conservancy tank ('uitsuigtenk'). In addition the applicant requires an interdict against the first respondent to prevent it from continuing with the relevant building construction on the property and for using it for providing conference or seminar facilities.

A costs order is sought only against the second respondent on an unopposed basis. Should the application be D opposed, however, a costs order is sought against the parties opposing. In the present matter the second respondent has opposed the costs order sought against it but abides the decision of the Court in regard to the further relief claimed by the applicant. The first respondent opposes all the relief claimed and has requested that E the application be dismissed with costs on the attorney and client scale.

2.

Factual background F

2.1

The applicant's case

The applicant is the registered owner of certain immovable property which falls within the area of the second respondent's jurisdiction and is zoned for agricultural use in terms of the zoning scheme regulations applicable to such area. The first respondent is a trust which owns the adjoining property, which is likewise zoned for agricultural use. G

There has been previous litigation between the parties, the history of which is set out in some detail in the applicant's founding affidavit. For present purposes I shall deal with it only in broad outline insofar as it may be relevant to the issues before me.

The respective properties of the applicant and first respondent are approximately 4,28 hectares in extent and they H share a common entrance to the Strand-Stellenbosch R44 road. Initially the parties had a good relationship, the first respondent trust being represented at all relevant times by one Jooste. During 1994 the applicant agreed to the first respondent's conducting an engineering practice and a small guest house business on its property. The first respondent in turn had no objection to the applicant's using his property for a broker's business. At a later I stage, however, the relationship soured and the applicant withdrew his consent to the first respondent's envisaged activities but failed to inform the second respondent thereof. Subsequently, with the approval of the second respondent, the first respondent constructed four guest cottages on its property. J

Van Zyl J

Thereafter, during 1995, the first respondent applied for leave from the second respondent to relax the 30-meter A building line requirement for the erection of a garage and labourer's room. It also applied for leave to construct a further four cottages (with eight bedrooms in total) for the guest house business. The applicant was informed of the building line relaxation application but not of that relating to the additional guest cottages. His objection to the B building line relaxation failed and the second respondent granted the first respondent's application on both legs.

Because of the traffic-related effects of the extension of the first respondent's guest house business, the District C Road Engineer placed a moratorium on such extension. The moratorium was lifted, however, during March 1996 and the first respondent commenced with building operations. The applicant then successfully applied to this Court for an interim interdict prohibiting the first respondent from continuing therewith pending a review application by the applicant to set aside the second respondent's approval of the extended guest house D construction.

The grounds of review included that the extension had not been properly advertised and that its effect would be to destroy the character of the area in a way which would be inimical to its agricultural zoning. In addition, there would be an increase of traffic through the common entrance which would create congestion and affect the E applicant's personal privacy and convenience and also the market value of his property.

The review application was granted unopposed and this Court laid down directions to be followed by the second respondent in the event of any renewed application by the first respondent. F

The first respondent subsequently renewed its application to construct additional guest cottages on its property. The applicant objected to it on various grounds. He also objected to the construction of a conservancy tank ('uitsuigtenk') 1,5 metres from the common boundary. The latter objection was rejected on the basis that the G encroachment of the tank on the 30-metre building line was part of the normal development of any private stand. The applicant, however, alleges that the tank will constitute 'maximal intrusion' on the privacy of his property and is in any event not three metres from the common boundary as indicated in the first respondent's application in this regard. H

Subsequently, the second respondent approved a building plan submitted by the first respondent in respect of a dining room and lounge or recreation room for the guest house business. The approval related to a much smaller facility than that originally sought by the first respondent. The applicant avers that this constitutes an extraordinary development which requires compliance with s 5 of the second respondent's zoning scheme regulations. I

A final objection raised by the applicant is that the first respondent is providing facilities for conferences and seminars without having acquired the appropriate leave to do so. This has generated increased traffic flow through the common entrance and caused the applicant personal inconvenience. J

Van Zyl J

2.2

The first respondent's answer A

The first respondent's opposing affidavit has been deposed to by the said Jooste, who manages the first respondent's guest house business. He describes the present application as a manifestation of a vexatious vendetta being conducted by the applicant against him. Elsewhere he describes his conduct as irrational and B unreasonable. He refutes much of what the applicant says in his founding affidavit as groundless and irrelevant, but proceeds himself to furnish the Court with wide-ranging background information which is interesting but largely irrelevant for present purposes. This includes a number of allegations directed against the applicant's purported use of his own property. C

In regard to the conservancy tank approved by the second respondent, Jooste points out that it is between 3,24 and 2,92 metres from the common boundary. It is underground and hence does not constitute an encroachment on the building line. In any event, it is safer, more hygienic and far more effective than the 'French drains' formerly used by him and still being used by the applicant. D

As for conferences and seminars, Jooste avers that there has been no such activity on the first respondent's property since 23 April 1997. This accords with an undertaking given by him to the second respondent on 7 February 1997 not to use the dining room for the holding of conferences without the second respondent's approval. He furthermore denies that there is any traffic congestion arising from the first respondent's guest house E business. On the contrary, the applicant has failed to mention the substantial traffic using the common entrance to gain access to an antique shop and factory on adjacent property subdivided from the applicant's land and sold by him to a third party. He has likewise omitted to mention traffic using the entrance for purposes of gaining F access to rented premises on his own property.

It is denied that the first respondent's activities have breached the applicant's privacy, obstructed his view or diminished the market value of his property. It is suggested, on the contrary, that the improvements effected to the first respondent's property have probably increased the value of the applicant's property. G

With reference to the additional accommodation for which the first respondent has applied, Jooste points out that it relates to two additional cottages with four bedrooms each, which will increase the total number of bedrooms to 16. This application is still pending. H

On the issue of the facility for a dining room and lounge or recreation room for guests, Jooste alleges that it is included in the definition of a guest house and does not constitute an extraordinary development as suggested by the applicant. The dining room has an area of 140 square metres and provides for nine tables apparently seating a total of 36 persons. The lounge or recreation room has an area of 160 square metres. These two rooms are not I interlinked.

In support of his allegations against the applicant's use of his own property, Jooste has appended a number of supporting affidavits and has also filed a supplementary affidavit himself (pp 354--62). I shall refer to these affidavits again when an appropriate costs order is considered. J

Van Zyl J

In view of the alleged vexatiousness of the applicant in bringing the present application, the first respondent seeks A a costs order on the basis of attorney and client.

2.3

The second respondent's answer

A senior official of the second respondent's Department of Planning and Development, one L Fourie, has B deposed to an affidavit in which the second respondent's opposition to the present application is based solely on the...