Coram: VAN DER SCHYFF AJ. and LOUIS MARTIN CLOETE. take all reasonable steps to ensure that the retaining wall between the applicant's and

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1 1 REPUBLIC OF SOUTH AFRICA (I) REPORTABLE: 'tes / NO (2) OF INTEREST TO o nmr JUDGES: 'ti:6 / NO (3) RclW4SED IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO.: SIGNATIJRE In the matter between: IWANVOSLOO APPLICANT and LOUIS MARTIN CLOETE RESPONDENT Heard: 19 February 2018 Delivered JUDGMENT Coram: VAN DER SCHYFF AJ [ 1] This is an application for leave to appeal against the judgment of this court delivered on 22 December [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

2 2 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 [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-

3 3 (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' -

4 4 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 : '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

5 5 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.

6 6 [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 [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

7 7 Paints (TVL) Ltd. Van Riebeeck Paints (Pty) Ltd (3) SA 623 (A). A twopronged 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 , 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

8 8 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

9 9 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

10 10 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

11 11 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