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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(I) REPORTABLE: 'tES / NO (2) OF INTEREST TO o nmR JUDGES: 'ti:6 / NO (3) RclW4SED

SIGNATIJRE

In the matter between:

IWANVOSLOO

and

LOUIS MARTIN CLOETE

Heard: 19 February 2018

Delivered

JUDGMENT

Coram: VAN DER SCHYFF AJ

CASE NO.: 92734116

APPLICANT

RESPONDENT

[ 1] This is an application for leave to appeal against the judgment of this court delivered on

22 December 2017.

[2] The applicant applied for a mandatory interdict whereby the respondent is ordered to

take all reasonable steps to ensure that the retaining wall between the applicant's and

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respondent's respective properties is safe and free of any danger, and that the respondent

is ordered to take immediate steps to rebuild the wall where it has collapsed and cracked.

Although not expressly included in the relief sought as set out in the notice of motion, it

was the applicant's case that the respondent is to carry the costs associated with the

repair and maintenance of the retaining wall. The applicant's application was dismissed

with costs by this court. In the application for leave to appeal it is surmised on behalf of the

applicant that the court erred in dismissing the applicant's application with costs. Four

specific grounds of appeal are listed, namely that the ~urt erred (i) in finding that the wall

in question is both a retaining wall and a boundary wall; (ii) in not finding that the wall in

question is built exclusively on respondent's property, (iii) in not finding that the respondent

has a duty to maintain, repair and rebuild the wall in question at his own cost, and (iv) in

finding that the applicant makes use of the wall.

[3] This application is predicated on the ground that there js a reasonable prospect of

another court finding that the respondent has a duty to take all reasonable steps to ensure

that the retaining wall between the applicant's and respondent's respective properties is

safe and free of danger, and that another court would subsequently order the respondent,

at its cost, to immediately take steps to rebuild the retaining wall where it has already

collapsed and cracked.

(4) Counsel for the applicant handed up heads of argument on which his oral argument

from the bar was founded. The court is indebted to him for his assistance in this regard.

Counsel for the respondent did not assist the court in any regard. She stated that since the

respondent did not note a cross appeal she was only there to note the judgment. This is

most unfortunate. The silence of respondent's counsel begs the question as to whether the

absence of any argument on behalf of the respondent should be regarded as a silent

acknowledgment that there is sufficient merit in the application for leave to appeal and that

counsel was exercising her duty not to abuse the court process by not advancing any

argument in negating applicant's case that the court erred in the respects set out in the

application for leave to appeal, or that, even if all these, or some of the listed errors

occurred, that it is non-consequential for the order made on 22 December 2017.

[5] Section 17(1) of the Superior Courts Act, No. 10 of 2013, stipulates that:

'Leave to appeal may only be given where the judge or judges concerned

are of the opinion that-

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(a) (1) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be

heard, including conflicting judgments on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit

of section 16 (2) (a); and

(c) where the decision sought to be appealed does not dispose of all the

issues in the case, the appeal would lead to a just and prompt resolution

of the real issues between the parties. '

[6) Hughes J explained in Nannen and Others v Momentum and Others {6796/05,

2275/05) (2017] ZAGPPHC 433 (14 June 2017); Honda Giken Kogyo Kabushiki Kaisha Va

Honda Motor Co Ltd v Big Boy Scooters (24784'2016) [2017] ZAGPPHC 752 (15

November 2017); and BWM Financial Services (SA) (Pty) Ltd v Finlay and Others

(55858/10, 55860/10, 56219/10) (2017] ZAGPPHC 383 (31 March 2017) that the test that

applied previously in applications of this nature, was whether there were reasonable

prospects that another court may come to a different conclusion. She continued:

'What emerges from section 17 (1) is that the threshold to grant a party

leave to appeal has been raised. It is now only granted in the

circumstances set out and is deduced from the words 'only' used in the

said section. See The Mont Chevaux Trost v Tina Goosen & 18 Others

2014 JDR 2325 (LCC) at para [6}, Bertelsmann J held as follows:

"It is clear that the threshold for granting leave to appeal against a

iudgment of a High Court has been raised in the new Act. The former test

whether leave to appeal should be granted was a reasonable prospect

that another court might come to a different conclusion, see Van Heerden

v Cronwright & Others 1985 (2) SA 342 (1J at 343H. The use of the word

"would" in the new statute indicates a measure of certainty that another

court will differ from the court whose iudgment is sought to be appealed against." [My emphasis]. (Nannen, supra par (51).

[7] This view can further be substantiated if it is considered that Selke J ' said in Stan- v

Ramnath and Others [1954) 2 All SA 106 [NJ 113 that '[i]n the idiom of English, the words

'will' and 'would' are possessed of many variations of meanings and shades of meaning. In

s 17(1) the word 'would' replaced the word 'may' as was previously the case. Linguistically

considered the word 'would' is the past tense of the subjective mood of the word 'will' -

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Amalgamated Retail Ltd v Spark and Another[1991] 3 All SA 545 (SE). The only sensible

way to interpret the word in this context is to give it the meaning of its source, namely 'will' .

[8] As stated in MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25

November 2016) paragraph (17] - 'An applicant for leave to appeal must convince the

court on proper grounds that there is a reasonable prospect or realistic chance of success

on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is

not enough. There must be a sound, rational basis to conclude that there is a reasonable

prospect of success on appeal.'

[9] In view of the peremptory provision that leave to appeal 'may only' be given if the court

is of the opinion that the appeal would have a reasonable prospect of success or if there is

some other compelling reason why the appeal should be heard, it is evident that the test

captured in s 17(1)(a) is two-fold. The first part of this judgment will focus on the question

whether I am of the opinion that there is a reasonable prospect that another court will

come to a different conclusion. If the answer to this question is negative, I will detennine

whether there is a compelling reason why the appeal should be heard.

(10) It is trite thats 17 empowers the trial judge to give leave to appeal, and that this power

must be exercised judicially. In view of the particular manner in which s 17(1)(a)(i) is

phrased the court can rely on the decision of the Appellate Division , as the Supreme

Court of Appeal then was, in Rex v Baloi 1949 (1) SA 523 (A), for guidance as how to

approach an application for leave to appeal in a context where it is prescribed that leave to

appeal should not be granted unless the applicant will have (would have) a reasonable

prospect of success on appeal. In Baloi (supra) Centlivres JA stated at 524-525: 'For the

trial judge must, in the nature of things, find it somewhat difficult to look at the matter from

a purely objective standpoint; he has a natural reluctance to say that his own judgment is

so indubitably correct that the Judges of appeal will concur therein. But the test laid down

... is the only test that can be applied'.

[11] In R v Kuzwayo 1949 (3) SA 761 (A) 765, the court explained:

'That test must, to the best of the ability of the trial judge, be applied objectively. By that is

meant that he must disabuse his mind of the fact that he himself has no reasonable doubt

as to the guilt of the accused: he must ask himself whether there is a reasonable prospect

that the judges of appeal will take a different view. This applies to questions both of fact

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and of law: there is, in this respect, no distinction between a question of fact and a

question of law'.

(12) In determining whether there is a reasonable prospect of success that another court

will grant a different order, it is necessary to revisit the facts of the case as set out in the

papers. It is common cause that the retaining wall between the parties' properties

collapsed in a specific area and cracked in other areas, although the reason for the

deterioration is disputed.

[13) It is stated in the applicant's founding affidavit that:

[13.11 The properties in question are neighbouring properties, and the

retaining wall is built along the shared border, however, applicant avers that

this wall is not a "normal boundary wan•.

[13.2] The respondent's property is elevated above the applicant's property.

[13.3) The retaining wall in question provides support for the respondent's

property.

(13.4] The retaining wall is used by the respondent as the foundation for the

driveway which provides access to the respondent's property. Later it is

stated (more correctly) that the retaining wall provides support for the

respondent's driveway.

[13.5] The wall serves to level the otherwise naturally sloping property of the

respondent

[13.6) In recent years the retaining wall has started to collapse in certain

areas and cracked in others.

[13. 7] A report by structural engineers indicates that the retaining wall does

not comply with SANS structural requirements for a sate structure, that the

present state of the wall is dangerous and that the wall is beyond repair.

(13.8] The retaining wall was surveyed, and the surveyor determined the

exact position of the wall as follows:

[13.8.1] Between points P1 and P2 the bottom position of the

outside face of the retaining wall was located almost exactly on the

boundary line.

[13.8.2) Between points P2 and P3 the wall has partially collapsed,

and no measurements were taken for this section.

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[13.8.3) Between points P3 and P6 the bottom position of the wall

is located in the respondent's property, but the top position of the

retaining wall is at different points located inside both properties.

(13.9) Applicant contends that there is a duty on property owners to take care

that the use of their land does not cause damage to others. The dilapidated

state of the wall holds an inherent risk for applicant's property and applicant

is prejudiced by the "current use" of the retaining wall that constitutes a

danger to his property.

[14) Respondent on the other hand stated in his opposing affidavit that:

{14.1) The wall was built around 1940.

[14.2) The wall is a structural necessity required to keep the soil on the

respondent's property from sliding and tumbling down to applicant's property.

[14.3) The retaining wall is the actual border between the respective

properties and it is not "used as a driveway", and there is no difference

between the boundary wall and the retaining wall.

[14.4] The wall does not pose a danger to the applicant and his family since

it is situated at the back of applicant's property.

[14.5] The applicant acquired the property with the wall intact.

(14.6] The only portion of the wall that was damaged was damaged by the

applicant when the latter removed a tree whose roots damaged a portion of

the wall, consequently the deterioration of the wall cannot be attributed to

respondent's driveway.

(15) Applicant. in reply, attached confirmatory affidavits from the structural engineer and

land surveyor whose reports were attached to his founding affidavit Applicant replied to

some of the allegations contained in the respondent's answering affidavit.

[15.1) It must be noted that applicant states in paragraph 5.3 of the replying

affidavit '[w]here I do not speciftcally refer to allegations contained in the

Answering affidavit, same should be deemed to be denied.' Although this

approach might have some value when pleadings are drafted in action

proceedings, it does not serve a purpose in motion proceedings. The

principles that a court needs to apply when the version of an applicant and

respondent are weighed-up to determine factual disputes in motion

proceedings, have been set out clearly in the well-known Plascon-Evans

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Paints (TVL) Ltd. Van Riebeeck Paints (Pty) Ltd. 1984 (3) SA 623 (A). A two­

pronged approach is facilitated by the Plascon-Evans rule. The first is that

factual disputes are to "be decided on facts that are common cause" or

otherwise on the respondent's version. The second, and important, leg of the

rule requires the court to detennine whether the disputes raised are real,

genuine or bona ftde, or whether the allegations or denials are so far-fetched

or clearly untenable that the court will be justified in rejecting them merely on

the papers. A blanket denial of all the allegations contained in the

respondent's answering affidavit that are not specifically dealt with in the

applicant's replying affidavit does not assist the court in detennining whether

factual disputes that arise are genuine or untenable.

[15.2) The only direct denial contained in the applicant's replying affidavit is

that the removal of the tree did not cause any damage to the wall.

[15.3] The particular manner in which this issue is addressed in the replying

affidavit, however, requires attention.

[15.3.1] It is stated in paragraph 6.3 of the replying affidavit - 'In

these paragraphs the Respondent alleges that I caused damage to the wall

when I removed a tree whose roots P§rtially damaged the wall and that this

removal caused damage to the wall.'(my emphasis) In paragraph 6.4 the

applicant stated 'I accordingly deny that my removal of the tree caused any

damage to the wall'. The applicant consequently does not deny that the roots

of the tree contributed to the deterioration of the wall.

[16) This court has already found that the retaining wall is also a boundary wall and held

on authority of Southwood J's judgment in Van Bergen v Van Niekerl< and Another

(3037 /2005) ZAGPHC 2005 180, that a mandatory interdict ordering the respondent to

repair or rebuild the retaining wall is not appropriate. Despite the fact that the bottom

position of the wall is for parts located within the respondent's property (between P1 and

P2 the bottom position of the wall was found to be located almost exact1y on the boundary

line), it is for the greatest part but marginally so. The top part of the wall is at different

sections along the wall located in both properties. ft should be considered that the

equipment used to detennine the boundaries between properties around 1940, when the

wall was built, was probably not as advanced as is the equipment used today, and

therefore the parties' consideration as to whether the wall is a boundary wall is important.

It is evident from the papers that this wall is regarded by the parties as the boundary

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between their properties, although the applicant states that it is not a "normal boundary

wall". [It is also insightful to note that the structural engineer opines that the western side of

the wall "probably was intended to be a boundary wall"- 'VOS 3' p23]. I am not convinced

by the applicant's counsel's argument that the upper-part of the structure, the palisade

fencing that is on top of the wall can be classified as a boundary wall, while the bottom part

of the same structure is exclusively regarded as a retaining wall. I am likewise not

convinced on the facts that one side of the wall can be regarded as boundary wait, but not

other sections that are erected along the same border. I am of the view that the wall

serves a dual function as boundary wall and retaining wall.

(17] If however, I am wrong, the question arises as to whether the applicant has made out

a case for an order that the respondent must carry the costs associated with the repair and

rebuilding of the wall in the event that the retainer wall is not a boundary wall. It is common

cause between the parties that the wall is situated on and very near to the true boundary

of the property. This wall, however, has a very specific function, and is aptly referred to as

a retainer wall. A retainer wall can be defined or described as 'a structure designed and

constructed to resist the lateral pressure of soil, when there is a desired change in ground

elevation that exceeds the angle of repose of the soil. ' - Ching, F. D .• Faia., R., S., &

Winkel, P. (2006). Building- Codes Illustrated: A Guide to Understanding the 2006

International Building Code (2 ed.) New York, NY: Wiley. Van der Walt AJ The Law of

Neighbours (2010) 88 explained that every landowner is obliged to ensure that his land

provides lateral support for neighbouring land. When this support is removed through

works or excavation on one property and the other becomes unstable, the affected

landowner is deprived of the normal use and enjoyment of his land. It can, as a general

principle be stated that each owner is responsible for retaining the portion of earth that

they (or the previous land owner) have altered from the natural ground level. This could be

done either by placing filling on top of the natural ground level or excavating below the

natural ground level. -Sonnekus JC provides an interesting perspective in in an article

Sydelingese Steun by -Grondstukke Eenmaal Anders Beskou 2002 JSAfrl 333, 342

(2002).

(18] The facts of this case place the respondent as the owner of a high lying property and

the applicant as the owner of the low-lying property. The retaining wall prevents land from

the higher lying property from sliding or tumbling into the lower lying property. This

geographical reality places the dispute firmly within the realm of the principles of lateral

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support. As stated above, the principles of lateral support dictate that, as a general rule,

each landowner is responsible for retaining the portion of the earth that they or their

predecessors have altered from the natural ground level. Logic dictates that if the natural

condition of the land was not disturbed, that the high-lying property would gradually have

descended to merge with the low-lying property. Both parties' counsel argued in their

supplementary heads of argument submitted at my request when hearing the motion

application, that the principle of lateral support does not find application because neither

the applicant nor the respondent altered the natural state of the land. It is surmised by

applicant's counsel that 'the natural slope of the land was altered before either the parties

took ownership of the respective properties'. A similar argument was offered by

respondent's counsel when the motion was argued before me. However, in terms of this

common law principle the owner of the land whose predecessor altered the natural state of

the land remains responsible to ensure that the lateral support is upheld. In U,is instance,

lateral support is provided by U,e retainer wall. If Uie applicant cannot prove on a balance

of probabilities Uiat the natural state of tt,e land was changed by any of the respondent's

predecessors, he did not make out a proper case for the relief required, as he would not

have made out that he has a clear right to the relief sought. Applicant's counsel stated in

the supplementary heads of argument to the original motion that 'on the facts It is

impossible to establish whether the Applicanfs property was lowered or the Respondenfs

property raised by the retaining wall'.

[19) There is no evidence before the court as to which property's historic owner either filled

up its property, or excavated its property, creating the need for erecting a retaining wall.

Since consecutive property owners are bound by the liability created by their predecessors

in this regard, this aspect is of the utmost importance in deciding whether to grant the

mandatory interdict.

[20] Both owners are faced with a dilemma if the retaining wall deteriorates completely and

both property owners benefit from the retaining wall being rebuild and properly maintained.

It may be correct that the respondent's use of the area immediately adjacent to the

retaining wall as an access driveway creates an additional burden on the retaining wall

that increases the respondent's responsibility and liability in this regard, but that does not

mean that the respondent should be held solely responsible for the upkeep of the retainer

wall in the absence of evidence that his predecessors created the need for a retaining wall

supporting the property by filling up the property. It may likewise be true that either the

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roots of a tree situated on the applicant's land caused damage to a portion of the wall or

that the removal of the tree by the applicant itself caused damage to a portion of the wall.

or that the applicant's predecessors excavated their land. The photographs of the tree

stump in front of an intact portion of the wall do not exclude the possibility that another

portion of the wall could have been damaged in the process of removing the tree and if the

P/ascon-Evans rule is applied the respondent's version in this regard must be accepted. I

do not find the respondent's averments in this regard to be far-fetched or ma/a fide.

[21] In light of the fact that this is no1 a damages claim. it is not necessary to determine the

extent to which the parties should contribute to the upkeep of the wall. However, in light of

the fact that the fundamental reason that gave rise to the need for erecting a retainer wall

in the first place was not addressed, I am of the view that the applicant did not make out a

proper case for the relief sought. If the need for the retainer wall was occasioned originally

by the fact that the applicant's historic predecessor excavated his property and that the

excavation subsequently gave rise to the need to provide lateral support, it will be

irrelevant whether this retainer wall is situated exclusively on the respondent's property

when the duty to maintain the wall is considered.

[22) It is, however, true that neither of the parties relied on the principles of lateral support

when the motion was brought and opposed. I am, however, of the view that the

geographical setting of the dispute, as it emanates from the papers, places it squarely

within the legal matrix where the principles of lateral support need to be considered. It was

held in Van Ransburg v Van Rensburg 1963 (1) SA 505 (A) 510A 'In i8dere geval meen ek

dat 'n uitl8g van die HofrelJI wat die Hof sou verhlnder om 'n aansoek op 'n regspunt uit te

wys wat uit die beweerde feite ontstaan, slegs omdat die aansoekdoener nie in sy

aansoek uitdruklik daarop gesteun het nie, vermy kan en moet word, anders sou dit kon lei

tot die onhoudbare posisie dat die Hof deur 'n regsdwaling aan die kant van die

aansoekdoener gebonde kan wees.' The Constitutional Court confirmed this principle in

CUSA v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC) paragraph 68 ' These

principles are, however, subject to one qualification. Whem a point of law is apparent on

the papers, but the common approach of the parties proceeds on a wrong perception of

what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise

the point of law and require the parties to deal therewith. Otherwise, the result would be a

decision pmmised on an incorrect application of the law. That would infringe the principle

of legality. Accordingly, the Supreme Court of Appeal was entitled mero motu to raise the

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issue of the commissioners jurisdiction and to require argument thereon.' For this reason, I

requested both parties' counsel when they were arguing the motion application to provide

me with heads of argument pertaining to the application of the principles of lateral support

to this case, and I am therefore of the view that neither of the parties are prejudiced by my

consideration of this aspect.

(23] On the arguments set out above I am not of the opinion that there is a reasonable

prospect that another court will come to a different conclusion.

[24) This court's reasoning pertaining to the application of the principles of lateral support

was not set out in the original judgment as I was, and am, of the view the issue became

moot in light of the precedent on which I based the judgment The applicant contends that I

erred in finding that the retaining wall is a boundary wall. If I did err in making this factual

finding, I am of the view that the dispute would then fall in the matrix where the principles

of lateral support applies, and that these principles do not support a finding that the

applicant made out a proper case for the relief sought. However, the applicant was not

able to address these issues in the application for leave to appeal since I did not set it out

comprehensively in the judgment. I regard the combination of these two aspects as

creating a compelling reason for the appeal to be heard.

ORDER:

IT IS THUS ORDERED THAT:

1. The applicant is granted leave to appeal to the full court of the High Court of South

Africa, Gauteng Division, Pretoria against the whole of the judgment and order

granted by this court on 22 December 2017;

2. The costs of this application will be costs in the appeal.

Acting Judge of the High Court