Van Rensburg and Another NNO v Naidoo and Others NNO; Naidoo and Others NNO v Van Rensburg NO and Others

• Jurisdiction: South Africa
• Citation: 2011 (4) SA 149 (SCA)

Van Rensburg and Another NNO v Naidoo and Others NNO;
Naidoo and Others NNO v Van Rensburg NO and Others
2011 (4) SA 149 (SCA)

2011 (4) SA p149

Citation	2011 (4) SA 149 (SCA)
Case No	CASES Nos 155/2009 and 455/2009
Court	Supreme Court of Appeal
Judge	Navsa JA, Heher JA, Van Heerden JA, Mhlantla JA and Saldulker AJA
Heard	May 3, 2010
Judgment	May 26, 2010
Counsel	HJ van der Linde SC (with JD Huisamen) for the appellants in the first case, and for the first to fifth respondents in the second case.; O Rogers SC (with M Euijen) for the respondents in the first case, and for the appellants in the second case.; No appearance for the sixth to eighth respondents in the second case, such respondents abiding the decision of the court.

Flynote : Sleutelwoorde B

Land — Defeasible interests — Restrictive conditions of title C inserted in title deeds of all owners of erven in township as to user of erven — Rights of owners of erven not trumped by policies and zoning regulations of municipality having jurisdiction — Such conditions enure for benefit of all other erven in township, unless contrary indications present — Conditions inserted for public benefit and, generally, to preserve character of township — Rights of owners of erven cannot be removed by repository of D power without their being heard or provided with opportunity to object.

Court — High Court — Powers — To declare final order made by court of equal jurisdiction to be of no force and effect — Court having no power to declare, in final terms, a final order, made by court of equal jurisdiction, to be of no force and effect where it is not sitting as court of appeal or review. E

Court — Judgment — Interpretation — Court's intention to be ascertained primarily from language of judgment or order — Usual rules of interpretation to be applied — Judgment, order and court's reasons to be read as a whole to ascertain its intention. F

Headnote : Kopnota

Where, upon the establishment of a township, restrictive conditions of title as to the user of erven in the township have been inserted in title deeds in favour of all erf-holders in the township, the policies and zoning regulations of the municipality, within whose jurisdiction the township is situated, do not trump the rights of owners derived from their title deeds. Restrictive G conditions of the kind in question enure for the benefit of all other erven in a township, unless there are indications to the contrary. They are inserted for the public benefit and, in general terms, to preserve the essential character of a township. If landowners across the length and breadth of South Africa, who presently enjoy the benefits of restrictive conditions, were to be told that their rights, flowing from these conditions, could be H removed at the whim of a repository of power, without hearing them or providing an opportunity for them to object, they would rightly be in a state of shock. (Paragraphs [34] and [37] at 158H – 159A and 159F – H.)

A court is not empowered to declare in final terms a final order, made by a court of equal jurisdiction, to be of no force and effect where the court is not sitting as a court of appeal or review in respect of the judgment. (Paragraph [47] at 161E – F.) I

In interpreting a judgment the court's intention is to be ascertained primarily from the language of the judgment or order, as construed according to the usual well-known rules relating to documents. As in the case of any document, the judgment or order and the court's reasons for giving it must be read as a whole to ascertain its intention. (Paragraph [42] at 160E – F.) J

2011 (4) SA p150

Cases Considered

Annotations: A

Reported cases

Administrator, Cape, and Another v Ntshwaqela and Others1990 (1) SA 705 (A): dictum at 715F – H applied

Bekker NO v Total South Africa (Pty) Ltd1990 (3) SA 159 (T): distinguished B

Buffalo City Municipality v Gauss and Another2005 (4) SA 498 (SCA) ([2006] 2 All SA 11): considered

Camps Bay Ratepayers and Residents Association and Others v Minister of Planning, Culture and Administration, Western Cape, and Others2001 (4) SA 294 (C): dictum at 324E – G applied

Chairman, Board on Tariffs and Trade, and Others v Teltron (Pty) Ltd1997 (2) SA 25 (A): dictum at 31F – H applied C

Firestone South Africa (Pty) Ltd v Genticuro AG1977 (4) SA 298 (A): referred to

Garden Cities v Registrar of Deeds1950 (3) SA 239 (C): criticised and not followed

Le Roux v Yskor Landgoed (Edms) Bpk en Andere1984 (4) SA 252 (T): distinguished D

Malan and Another v Ardconnel Investments (Pty) Ltd1988 (2) SA 12 (A): dicta at 38B – C, 39F – G and 40E – G applied

Ras en Andere v Sand River Citrus Estates (Pty) Ltd1972 (4) SA 504 (T): distinguished

Ronnie's Motors (Pty) Ltd and Others v Van der Walt and Others1962 (4) SA 660 (A): referred to E

Rossmaur Mansions (Pty) Ltd v Briley Court (Pty) Ltd1945 AD 217: dictum at 228 – 229 applied

S v Mujee 1981 (3) SA 800 (Z): discussed and distinguished

Van Rensburg and Another NNO v Nelson Mandela Metropolitan Municipality and Others F 2008 (2) SA 8 (SE): confirmed on appeal.

Case Information

Appeals from two decisions in the Eastern Cape High Court, Port Elizabeth (Van der Byl AJ and Dambuza J). The facts appear from the judgment of Navsa JA and Mhlantla JA.

HJ van der Linde SC (with JD Huisamen) for the appellants in the first G case, and for the first to fifth respondents in the second case.

O Rogers SC (with M Euijen) for the respondents in the first case, and for the appellants in the second case.

No appearance for the sixth to eighth respondents in the second case, such respondents abiding the decision of the court.

Cur adv vult. H

Postea (May 26).

Order

1.

I In Wilma van Rensburg NO and Another v Perapanjakam Naidoo NO and Others (case No 155/09):

(a)

The appeal is upheld with costs, including the costs of two counsel.

(b)

The order of the court below is set aside in its entirety and J substituted as follows:

2011 (4) SA p151

'The application is dismissed with costs including the costs of A two counsel.'

2.

In Perapanjakam Naidoo NO and Others v Wilma van Rensburg NO and Another (case No 455/09):

(a)

The appeal is dismissed with costs, including the costs of two counsel. B

(b)

The appellants' legal representatives are precluded from recovering any costs from the appellants related to the unnecessary and duplicated parts of the record (one-third thereof).

Judgment

Navsa JA et Mhlantla JA (Heher JA, Van Heerden JA and Saldulker AJA concurring): C

[1] These two linked appeals, which are before us with the leave of this court, have been consolidated, and are the culmination of protracted litigation between feuding neighbours. The two appeals necessitate consideration of three judgments of the Port Elizabeth High Court. In D the first, Froneman J had ordered that approvals granted by the municipality, to legitimise construction work, which had already been completed in the northeastern corner of an erf in Summerstrand Township, Port Elizabeth, be set aside and that the entire northern building on that erf be demolished, as well as the top storey and staircase leading to it of another building situated in the northwestern corner of E the erf, within 60 days of the date of the order. He also ordered an abatement of a nuisance emanating from that erf. [1] In the second High Court judgment, delivered on 8 July 2008, which is the subject of the first appeal before us under case No 155/2009, Van der Byl AJ purported to declare parts of Froneman J's judgment, delivered on 30 March 2007, F to be of no force and effect, and made certain allied orders. In the third judgment, delivered on 2 June 2009, which is the subject of the second appeal under case No 455/2009, Dambuza J reviewed and set aside a decision of the Member of the Executive Council of Local Government and Traditional Affairs, Eastern Cape Province (the MEC), to remove restrictive title deed conditions in relation to the erf referred to above. G

[2] In the first appeal the power of a High Court, not sitting as a court of appeal, to suspend or nullify final orders granted in the same division, in relation to the issues referred to in the preceding paragraph, and to make related orders, falls to be considered. In the second appeal the question is whether the MEC's decision was rightly reviewed and set H aside. The appeal against the order of Van der Byl AJ is referred to as the suspension appeal. The appeal against the order of Dambuza J is referred to as the review appeal.

[3] The opposing litigating trustees are as follows. The trustees for the I time being of the Shan Trust are Perapanjakam Naidoo, her husband Purshotam Naidoo, and three other members of their family. The trustees for the time being of the Hobie Trust are Phillippus and Wilma

2011 (4) SA p152

Navsa JA et Mhlantla JA (Heher JA, Van Heerden JA and Saldulker AJA concurring)

A van Rensburg, who are husband and wife. The litigating parties are referred to as the Shan and Hobie Trusts, respectively.

[4] The Hobie Trust is the owner of erf 104, situated at 4 Sixth Avenue, Summerstrand, Port Elizabeth. The Shan Trust owns erf 105, situated at 3 Seventh Avenue, Summerstrand, Port Elizabeth. The Hobie Trust B property abuts the northern boundary of the Shan Trust erf. The Shan Trust conducts the business of a guesthouse on erf 105.

[5] The litigation between the parties relates to certain structures on erf 105 that were constructed, extended and renovated over time by the C Shan Trust, in furtherance of the guesthouse business it conducts on the premises. The following issues arise:

(a)

whether erf 105 could be used for purposes other than that of a private residential dwelling;

(b)

the legality of...