RESERVED JUDGMENT NTSHANGASE, J · 2018-01-31 · boutique hotel of four star rating, restaurant...
Transcript of RESERVED JUDGMENT NTSHANGASE, J · 2018-01-31 · boutique hotel of four star rating, restaurant...
IN THE HIGH COURT OF SOUTH AFRICADURBAN AND COAST LOCAL DIVISION
13120/2007
BVHT PROPERTIES (PTY) LTD T/A THE BOAT HOUSE APPLICANT
versus
BALLITO SKI BOAT CLUB FIRST RESPONDENT
KWADUKUZA MUNICIPALITY SECOND RESPONDENT
THE MEC OF AGRICULTURE AND ENVIRONMENAL AFFAIRSKWAZULU NATAL PROVINCIALGOVERNMENT THIRD RESPONDENT
THE MINISTER FOR ENVIRONMENTALAFFAIRS AND TOURISM FOURTH RESPONDENT
THE LIQUOR BOARD KWAZULU NATAL FIFTH RESPONDENT
RESERVED JUDGMENTDelivered on: 14 December 2007
NTSHANGASE, J
[1] In this matter the relief sought by the applicant is for an order:
i) That the application be heard as one of urgency in accordance
with the provisions of Rule 6(12) of the Uniform Rules, and that
noncompliance with the rules relating to the form and manner of
service and time periods be condoned;
ii) That the first respondent be ordered to forthwith and at its own
cost remove the prefabricated structure erected on the beachfront
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directly in front of Erf 1639 BALLITOVILLE KWAZULU
NATAL;
iii) Alternatively to paragraph (ii) above, that the second respondent
be ordered to remove the prefabricated structure erected on the
beachfront directly in front of Erf 1639 BALLITOVILLE
KWAZULU NATAL;
iv) Further alternatively that the Sheriff of the Court be authorised to
remove the structure and the first and second respondents to pay
the costs thereof;
v) That the first and second respondents be prohibited from erecting
a building as defined in Section 1 of the National Building
Regulations and Building Standards Act, Act 103 of 1977 on the
beachfront directly in front of Erf 1639 BALLITOVILLE
KWAZULU NATAL, until all the applicable provisions of the
National Building Regulations and Building Standards Act, Act
103 of 1977 and the regulations issued in terms of the said Act or
the applicable regulations issued in terms of the said Act had
been complied with, as well as all the applicable provisions of the
National Environmental Management Act, Act No. 107 of 1998
and the applicable regulations issued in terms of Section 44 of
the said Act;
vi) That the first respondent be prohibited to erect a marquee tent or
any similar structure on the beachfront directly in front of Erf
1639 BALLITOVILLE KWAZULU NATAL;
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vii) That the first respondent and all its members be prohibited from:
(a) consuming alcoholic beverages on the beachfront in front of
the applicant’s property as described above;
(b) allowing any of their guests to so consume alcoholic
beverages in front of applicant’s property as described above;
(c) urinating on the land and beachfront in front of applicant’s
property and against applicant’s fence bordering the
beachfront;
(d) intimidating and verbally abusing applicant’s employees and
guests;
(e) playing loud music in front of applicant’s property.
viii) That the second respondent be ordered to take the necessary steps
against any persons including members of the first respondent
who contravene the National Building Regulations and Building
Standards Act, No. 103 of 1977 and the regulations thereto;
ix) Alternatively to paragraph (ii) to (viii) above that the orders set
out in paragraphs (ii) to (viii) above be issued pendente lite
pending finalisation of an action to be instituted by the applicant
within 30 days from date hereof against respondents for the relief
set forth in paragraphs (ii) to (viii) above, or similar or ancillary
relief;
x) That the first respondent through its members, a list of which the
second respondent is ordered to furnish forthwith, jointly and
severally with second respondent be ordered to pay the costs of
the application on an attorney and own client scale, jointly and
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severally with any of the other party to the proceedings opposing
the relief sought.
No orders are sought against the third, fourth and fifth respondents cited
insofar as they have an interest in the activities on the beachfront
concerned, except in the event of opposition.
[2] Prayer (v) was later amended to delete reference to second respondent;
prayer (vi) was also later amended to read:
“That the first respondent be prohibited to erect a marquee tent or
any similar structure without permission of the second
respondent in front of Erf 1639 Ballitoville KwaZulu Natal;
while 8 was abandoned.
Prayer (viii) was abandoned.
[3] The two grounds which found the applicant’s claim for relief are the
prefabricated structure erected on the seaside boundary of its property
and the nuisance associated with the operation and management of the
launch site.
[4] The application is opposed by first and second respondents both as to
urgency and on the merits. I found in favour of the applicant on the
issue of urgency after hearing argument and furnished brief reasons for
that decision. Indeed, as will become apparent later, the second
respondent itself regarded and treated the matter as one of urgency
insofar as it itself required an immediate removal of the prefabricated
structure by the first respondent. The other items of relief, being
ancillary to the issue of the prefabricated structure, also warranted
urgent consideration.
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[5] The application on the merits is opposed on the basis that no case has
been made out for a final nor an interim interdict.
[6] The applicant is the registered owner of the property described as Erf
1639, Ballitoville, Kwazulu Natal on which is situated the business of a
boutique hotel of four star rating, restaurant and conference venue called
the Boat House. It is also licensed to sell alcoholic beverages. Viewed
from Annexures “E” and “F” it is a picturesque edifice whose
undisputed value has been given as fifty million rand (R50 000 000). It
has a beachfront view. I shall refer to it as applicant’s property.
[7] Adjacent to applicant’s property is a boatlaunching site for the
operation whereof the KwaDukuza Municipality, the second respondent,
is the licensed operator in terms of Regulation 7(4)(e) of the Regulations
in terms of the National Environmental Management Act No. 107 of
1998 (“NEMA”). It is operated by the Ballito SkiBoat Club, the first
respondent, as the second respondent’s agent for the time being.
[8] On 3 November 2007, as averred by the applicant, the first respondent
erected a prefabricated structure measuring approximately forty square
metres with the back thereof approximately two metres from the seaside
boundary of the applicant’s property. Save that the first respondent
contends that it was deposited and not erected within the meaning of that
word in Section 1 of the National Building Regulations and Building
Standards Act, Act No. 103 of 1977 [“the NBRBS Act”], there is no
other dispute over this. The structure is depicted in various Annexures
including “I”, “J”, “K’ and “L” to applicant’s founding affidavit. It is to
serve as a clubhouse in replacement of the previous one which was
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washed away in a storm, in March 2007. It is depicted as a brown
structure with first respondent’s name and “AIDA” in Annexure “F” to
applicant’s founding affidavit located on the side of applicant’s
property. There is some controversy about its area which is given as
twelve square metres by applicant and the second respondent
contending, without providing detail of its size but suggesting it to have
been “far larger than claimed by the applicant.”
[9] The applicant complains about the positioning of the structure which
obscures the front seaside view of its property and contends, as does the
second respondent that the presence of the prefabricated structure on
the site is illegal as it was not preceded by steps and approvals
prescribed by the NBRBS Act and regulations issued in terms of such
Act. This appears to refer to Section 4(1) of the NBRBS Act which
prohibits erection of a building in respect of which plans and
specifications are to be drawn and submitted in terms of that Act,
without the prior approval in writing of the local authority, in this case
the second respondent. It is an approval given after the interests of
neighbouring properties have been taken into account.
[10] Mr Goddard for first respondent argued with reference to the definition
of “erection” in Section 1 of the NBRBS Act that the structure was not
“erected” within the meaning of that word in Section 1 of the Act as the
structure “was built in accordance with a South African Bureau of
Standards certification elsewhere and merely brought to and placed on
the site,” and that it was but a temporary structure.
[11] I am of the view that the Bureau of Standard’s certification is irrelevant
insofar as the Bureau’s requirements for certification may not
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necessarily meet those of the local authority whose prior approval is
given upon it being satisfied that the application for approval complies
with the requirements of the NBRBS Act and any other applicable law.
Section 4(1) of the NBRBS prohibits erection of any building in respect
of which plans and specifications are to be drawn and submitted in terms
of the NBRBS Act without prior approval in writing of a local authority.
Subsection (2) prescribes the manner of application while subsection
3(a) prescribes what the application to be made must contain and
subsection (3)(b) what should accompany such application.
[12] I do not agree that the prefabricated structure was not erected on the
site. Section 1 of the NBRBS Act defines erection as follows:
“Erection, in relation to a building, includes the
alteration, conversion, extension, rebuilding, re
erection, subdivision of or addition to, repair of any part
of the structural system of, any building; and “erect”
shall have a corresponding meaning.”
A building is defined to include a structure of temporary nature..
[13] Even if the first respondent were correct in stating that the prefabricated
structure which had been assembled elsewhere was merely deposited on
site, my view would be that such could properly be defined as an act of
erection. To hold otherwise would, in my view, lead to an absurdity or
to something which is repugnant to the intention of the legislature in
enacting the provisions of Section 7 of the NBRBS Act whose purpose
would be defeated. Section 7(1) provides:
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“If a local authority, having considered a recommendation
referred to in section 6(1)(a)
a) is satisfied that the application in question complies
with the requirements of this Act and any other
applicable law, it shall grant its approval in respect
thereof
b) (i) is not so satisfied; or
(ii) is satisfied that the building to which the
application in question relates –
aa) is to be erected in such manner or will
be of such nature or appearance that –
(aaa) the area in which it is to be
erected will probably or in
fact be disfigured thereby;
(bbb) it will probably or in fact be unsightly or objectionable;(ccc) it will probably or in fact derogate from the value of adjoining or neighbouring properties;
(bb) will probably or in fact be dangerous
to life or property such local
authority shall refuse to grant its
approval in respect thereof and give
written reasons for such refusal:
… ”
The absurdity or the repugnance to the intention of the legislature lies in
the result that any structure, if assembled elsewhere and deposited on
site would pass muster as proper to erect when, if assembled on site that
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selfsame structure would attract disapproval if it does not meet the
requirements stipulated in section 7 of the NBRBS Act.
In my view the word “erection” would need to be accorded its ordinary
meaning which is an act of setting up1 a building which is not expressly
excluded by what the word “erection” is denoted to include in relation to
a building in the definition of that word in section 1 of the NBRBS Act.
It simply is an act of setting up a building as one would a tent2 which
requires no process of assembling on site.
[14] Even if I am wrong in this, Annexure “U” to applicant’s founding
affidavit does depict the process of assembling the structure on site as
does Annexure “AC” to applicant’s founding affidavit which shows
plumbing in progress. Accordingly the contention advanced on behalf
of the first respondent that as the first respondent did not erect the pre
fabricated structure it was not legally obliged to take steps and make
application for approval in terms of the NBRBS Act, and that it is
therefore not in breach of such Act, must fail.
[15] In regard to the challenge to the applicant’s locus standi in approaching
the court on an issue of breach of the NBRBS Act, Mr Chadwick
advanced an argument with reference to bases upon which the applicant
would be entitled to do so as enunciated in various authorities he cited
and submitted that the applicant does not fall within a specific class of
persons which the NBRBS Act was designed to protect nor does the
applicant fall within any specific class of persons which the National
Environmental Management Act No. 107 of 1998 or its regulations was
1 The shorter Oxford Dictionary, Third Edition Vol. I, A Markworthy at 6772 See Markworthy op.cit.P.1954: “setup” as defined under “J” is “to erect and make ready for use; to pitch (a tent); to erect (a building)
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designed to protect, and that such legislation was enacted for the general
public interest. I do not agree. Clearly “(e)veryone has the right … to
protect himself by appeal to a court of law against loss caused to him by
the doing of an act by another, which is expressly prohibited by law.”3
In my view the applicant makes no proposition which purports to
contend that he seeks to derive the relief he seeks from the protection as
one of the class of such persons as contemplated in such laws. I
understand his reference to such legislation as intended to point to the
fact that but for the breach of these laws his rights would not have been
infringed, and that had the first respondent complied with the provisions
of the NBRBS Act a process would have been set in motion to attract
the approval of the local authority upon being satisfied that the building
was to be erected in such manner or would be of such a nature or
appearance that it would not probably or in fact be unsightly or
objectionable nor probably or in fact derogate from the value of
adjoining or neighbouring properties.4 The applicant therefore does not,
in my view, make reference to breaches of the provisions of the Act as
would an unaffected bystander who arrogates unto himself a duty of
policing over violations thereof.
[16] The first respondent perceives no infringement of the applicant’s rights
and refers to its presence on the site as predating the commencement of
applicant’s business on its property. It is also argued that the first
respondent has, in fact, done no more than to replace the old existing
clubhouse. Now, whereas in the past the first respondent was served by
a clubhouse structure of approximately twelve square metres with a
minimal obstruction to the view from applicant’s property, it has now
replaced it with a grotesque forty square metre structure erected two
3 Patz v Greene & Co 1907 TS 427 at 4334 s. 7 (b) (bbb) and (ccc) of the NBRBS Act.
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metres from the seaside boundary of applicant’s property, a fact not
disputed in first respondent’s answering affidavit by Dudley Boswell.
The unreasonable positioning of the prefabricated structure appears to
be a deliberate obstruction which unreasonably obstructs the view from
the applicant’s property’s gazebo as depicted in Annexure “J”. I
consider it to be beyond reasonable contention that its placement where
it is, as well as the act of planting unsightly and objectionable poles
depicted in Annexure “O and P” to applicant’s founding affidavit, not
only unreasonably deprives the property of applicant of the amenity of
the view, it also detracts from the aesthetic profile of the applicant’s
property, and also does derogate from the value of its property.
[17] It does violence to the profile of the applicant’s property whose force of
attraction of patrons lies largely in its capacity to provide a serene and
tranquil destination with pleasant aesthetic surroundings to holiday
makers. The structure unreasonably interferes with the view enjoyed
from applicant’s property before its erection. Before the demolition of
the previous structure, despite its existence, a largely uninterrupted view
was enjoyed from applicant’s property as Annexure “M” to applicant’s
founding affidavit shows. The loss thereof by reason of first
respondent’s illegally erected structure diminishes the property’s force
of attraction to present and potential patrons on each day that the
obtrusive structure remains positioned where it is. It is beyond
reasonable contention that it has negative financial implications for the
property’s earning capacity as a highly rated beachfront hotel from
where it now lies hidden behind the obtrusive structure.
[18] The prefabricated structure’s two metre proximity to the seaside
boundary of applicant’s property poses a potential danger to persons on
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applicant’s property as its safety has not been established. Second
respondent itself in Annexure “AF” to applicant’s founding affidavit
addressed to first respondent stated:
“Therefore the safety, stability and appropriateness of the
structure as erected have not been established …”
The structure is also placed too close to applicant’s property to avoid
harm to applicant’s property from debris in the event of flooding similar
to one which washed away the previous structure. Mr Goddard’s
argument that such flooding incidents are rare provides cold comfort
because of the unpredictability of the occurrence of flooding.
[19] The second ground upon which the applicant seeks relief relates to what,
according to the applicant, constitutes a nuisance which unreasonably
interferes with his rights and impacts negatively on its business. That
includes the erection of a marquee on the beachfront in front of
applicant’s property, from which alcoholic beverages are sold and
consumed, urinating on the land and beachfront in front of applicant’s
property, intimidating and verbally abusing applicant’s employees and
guests and playing loud music in front of applicant’s property by users
of the launch site. The first respondent claims entitlement to some of
these activities in which they have engaged on site while denying
responsibility for others which the applicant identifies. Both the first
and second respondents argue that the applicant is not entitled to the
relief sought as its claim relies on events which occurred in December
2006.
[20] In regard to the erection of a marquee which I shall deal with first, the
first respondent’s affidavit by Dudley Boswell [Boswell] conveys that it
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will not erect a marquee during the 2007/2008 period and that there is
therefore no need for the relief sought by the applicant in paragraph (vi)
of its prayer. This would provide cold comfort to the applicant when a
letter from Attorneys De Wet Schulz Incorporated on behalf of the first
respondent would not give an undertaking not to erect the marquee
when the applicant sought such an undertaking. Indeed the first
respondent appears to regard the erection of the marquee and the
activities within it to be a lawful annual event. In that regard the first
respondent’s affidavit by Boswell reads:
“The first respondent obtained permission from the
second respondent to have a New Year’s Eve party at
the end of 2006. Because the 31st of December 2006
fell on a Sunday, it was necessary to erect the marquee
to be used for the party in advance. Alcoholic
beverages were in accordance with an events licence
held by the supplier of the beverages. The event was, to
the best of my knowledge conducted in an entirely
lawful and proper manner, bearing in mind that it was a
New Year’s party.”
I fail to understand how permission could have been granted by second
respondent for that event in the light of the regulatory Clause 3.5.1 of
the “Environmental Management Plan [EMP] for the management and
operation of the Salmon Bay Launch site Ballito, Kwa Dukuza” which
reads:
“The launch site and the areas adjacent to it shall not be
regarded as a Recreational Use Area, or used as such
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unless specifically designated at a future date.”
There is no evidence in these proceedings that such designation has
occurred. Therefore the erection of the marquee and the activities
within and around it were a clear transgression of EMP5 which is an
integral part of the Record of Decision [ROD] in terms of regulation
13(1) of Government Notice No. 1399 of 21 December 2001 and the
provisions of section 44 of the National Environmental Management
Act No. 107 of 1998 with regard to the boat launch site. It is therefore
reasonable for the applicant to apprehend that the illegal erection of the
marquee and related activities will again take place in the present and
other festive seasons.
[21] Associated with the illegal activities related to the marquee are the
activities which occur in the club house in regard to which the first
respondent in the affidavit of Boswell states:
“Clearly a club house is meant as a meeting place and
there will always be a social aspect attached to a
voluntary (and sporting) association such as the first
respondent. This is not only natural and desirable as a
means of social intercourse, but is necessary in order to
generate sufficient funds to fulfil the objects of the first
respondent, and to allow the launch site to operate
safely and efficiently.”
This clearly misconceives the purpose for which the club house is to be
used, in the light of Clause 3.5.1 of EMP, although Boswell elsewhere in
the affidavit correctly states:
5 Annexure “AE” to applicant’s founding affidavit
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“… it is essential that the first respondent have a clearly
established club house which can operate as a command
post, house personnel, store equipment and ensure that
the facility for the operation of a safe launch site is in
place.”
[22] Another misconception in regard to permissible activities on the launch
site is evident from what follows in the affidavit by Boswell:
“Associated with the foregoing, and I concede an aspect
of healthy existence of the club, is a social aspect, and
one aspect of this is that when conditions allow,
members will congregate, braai freshly caught fish and
have a few drinks.”
This again occurs in violation of Clause 3.5.1 of EMP. In terms of the
provisions of Clause 3.5.1 social functions may be conducted anywhere
but on the launch site and the areas adjacent to it.
[23] The provisions of EMP define a strict and orderly code of conduct to be
observed on the launch site. To maintain the tranquil nature of the area,
clearly in deference to the rights of adjoining property users, Clause
5.4.1 provides:
“Noise on the site must be kept to a minimum”
It is therefore not clear how the noise associated with a New
Year’s Eve Party could be permitted on the launch site.
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Defining again the activities to be conducted on the launch site
Clause 2.1.2 of EMP provides:
“The launch site and slipway at Salmon Bay shall
be utilised for the sole purpose of launching
motorised watercraft into the sea for purposes of
leisure and also in the pursuance of emergency
activities”
All users of the launch site are obliged to abide by the
regulatory conditions for the use of the launch site:
Clause 2.2.1 of EMP provides:
“Users of the launch site, whether members of the
club, family members, friends, visitors or other
legally permitted users are required to abide by the
conditions as laid down in this EMP”
[24] All these conditions for use of the launch site serve the purpose
of measuring the activities to alleviate interference with rights
of others in the neighbourhood. Heralding the resumption of
operations by erection of the illegal structure on 3 November
2007 to replace one washed away in March 2007 provided
reasonable cause for the applicant to apprehend it as ushering a
resumption of the hive of activity like the New Year’s Eve party
which endures through the night on the launch site and other
unauthorised activities referred to earlier which previously, in
utter disregard of rights of neighbours, and which attracted
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complaints not only from the applicant but also from
applicant’s hotel guests, one of whom, according to Annexure
“R7” to applicant’s replying affidavit, remarked:
“3. Members of the Ballito Ski Club were holding
continuous parties, having braai's, a large number
of men were drinking beer and playing loud music
4. It was so unbearable that I could not open the
windows to my room because of the noise
emanating from the parties held.”
Another guest complained:
“I was a guest at the Boathouse from Wednesday 17th
to Saturday 20th October. We left early as we could not
deal with the racket being made by the “fishing or
canoeing club” outside the guest house.”
The negative financial implications to the business enterprise of
the applicant is evident from this. There was also evidence of
physical abuse of applicant’s Manager Childsmith all flowing
from the abusive conduct on the launch site and the
undisciplined use and management thereof.
[25] The second respondent’s answering affidavit by Deran Janse
van Rensburg [Janse van Rensburg] takes issue with what he
refers to as the applicant’s failure for eleven months to approach
the court for relief. This seems to overlook that after the
clubhouse had been washed away in March 2007, a curtailment
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of activity on site gave little cause for complaint. It was when
the first respondent, on 3 November 2007 illegally resumed
operations by the illegal erection of the prefabricated structure
that cause for complaint again arose to result in the present
proceedings.
[26] It appears from Janse van Rensburg’s answering affidavit that
the second respondent itself granted permission for the New
Year’s Eve party to take place, illegally in the light of Clause
3.5.1 of EMP. This, despite the following provisions of Clause
4.1.1 of EMP.
“The operator, KwaDukuza Municipality and its service
provider, namely the Ballito SkiBoat Club, [BSC],
licensed in terms of Regulation 7(4)(e) of the
Regulations in terms of the National Environmental
Management Act No. 107 of 1998 (NEMA) – control of
vehicle in the coastal zone, is responsible for
compliance with this EMP.” (my emphasis)
[27] It appears from Janse van Rensburg’s affidavit that the
management of second respondent does not exercise an intimate
supervision of the launch site to inform itself of causes for
complaints related to the use of the launch site. It appears from
his answering affidavit that apart from the illegal erection of the
prefabricated structure and the unsightly poles the second
respondent regards all else to be well on the launch site. Second
respondent states it has received no complaints according to its
files about any of the improper behavioural activities of the
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nature complained of by the applicant and the guests of its
establishment whose complaints were quoted earlier as
examples. It appears from this that the second respondent has
divested itself of intimate supervision and management
responsibility of the site and that it depends on complaints to be
made to it to be informed about conditions on site instead of
itself engaging in intimate management of the launch site to
inform itself about activities thereon to ensure for proper
conduct by all persons on site as is provided for in Clause
9.3.1.9 of the “Record of Decision” that the Municipality as the
licensed operator “maintains the current good practices for the
management of multiple user groups.”
[28] The second respondent contends that there is, for the applicant,
an adequate alternative remedy in the form of criminal
complaints with the South African Police services or second
respondent’s Protection Services. This suggests that each time
and day that members of first respondent or their guests in their
large numbers commit a nuisance the applicant shall forever be
burdened with the despatch of reports to the police or Protection
Services of the second respondent to abate such nuisance which
the second respondent, in terms of the conditions of license, and
in particular Clause 4.1.5 of EMP, should take responsibility to
prevent from occurring by intimate management of all people
and activities on the launch site. It is as extremely unrealistic to
expect this of the applicant as it is for him to assume as a
legitimate burden, to virtually manage and police the launch site
on behalf of the second respondent. It is also not clear what
assistance the Police Services would provide to him where, as
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happens, the members of first respondent and their guests, in
violation of the provisions of EMP hold parties, “braai’ fish and
consume alcohol and when they fail to keep the noise to a
minimum all of which second respondent ought to eradicate by
proper management measures.
[29] In my view there exists for applicant no other reasonable
alternative remedy. The failed consultations in which
applicant’s management attempted to engage with management
of the second respondent clearly show that he exhausted every
other remedy which was reasonably open to him to protect his
rights against the illegal acts of the second respondent’s agent,
the first respondent. It must be clear to the second respondent
even from first respondent’s defiance of the instruction of
second respondent, its principal, to remove the illegal pre
fabricated structure, that no amount of effort from applicant
would prevail upon the first respondent to resolve with him the
issues on which applicant has had to approach the court.
[30] By reason of the foregoing the application must succeed and I
accordingly make the following order:
1. That the first respondent forthwith and at its own cost
remove the prefabricated structure erected on the
beachfront directly in front of Erf 1639 Ballitoville
KwaZulu Natal;
2. Alternatively that the Sheriff be and is hereby authorised
to remove the structure and the first respondent to pay the
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costs thereof;
3. That the first respondent be prohibited from erecting a
building as defined in Section 1 of the National Building
Regulations and Building Standards Act, Act 103 of
1977 on the beachfront directly in front of Erf 1639
BALLITOVILLE KWAZULU NATAL, until all the
applicable provisions of the National Building
Regulations and Building Standards Act, Act 103 of
1977 and the regulations issued in terms of the said Act
or the applicable regulations issued in terms of the said
Act had been complied with, as well as all the applicable
provisions of the National Environmental Management
Act, Act No. 107 of 1998 and the applicable regulations
issued in terms of Section 44 of the said Act;
4. That the first respondent be prohibited to erect a marquee
tent or any similar structure without permission of the
second respondent on the beachfront directly in front of
Erf 1639 BALLITOVILLE KWAZULU NATAL;
5. That the first respondent and all its members be
prohibited from:
a) urinating on the land and beachfront in front of applicant’s
property and against applicant’s fence bordering the
beachfront;
b) intimidating and verbally abusing applicant’s employees and
guests;
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c) playing loud music in front of applicant’s property.
6. The first and second respondents to pay the costs of this
application.
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Date of Hearing: 30 November 2007
Date of Judgment: 14 December 2007
Counsel for the applicant: Adv P Nel
Instructed by: Mark Efstratiou Incorporatedc/o Cox Yeats Attorneys
Counsel for the first respondent: Adv G Goddard
Instructed by: De Wet Schulz Incorporatedc/o Goodrickes Attorneys
Counsel for the second respondent: Mr AIJ Chadwick
Instructed by: Shepstone and Wylie Attorneys
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