Facts

Equus Training and Consulting CC (‘Equus’) owned a property in the Summerstrand residential area in Port Elizabeth.  At some point Equus embarked on a venture to erect a guest house on its property.  It was aware that the property’s title conditions are restrictive and do not allow building a dwelling in the size that it had in mind for the guest house.  (The building plans were approved by the local authority, but only to the extent that the building would not infringe over the building lines.  In fact, all properties in the neighbourhood had similar restrictive conditions of title.)  Equus nonetheless commenced with building works that extended over the allowed building line of the property, whilst planning to bring an application for the removal of the restrictive conditions (in terms of the Removal of Restrictive Conditions Act 84, 1967) in due course.

Before an application was brought to remove the relevant title conditions, a neighbour, Ms Van Rensburg (‘Van Rensburg’), applied to the Eastern Cape High Court, Port Elizabeth for: (1) an interdict ordering Equus to stop the building process; and (2) an order that the building works that already extended over the building line, be demolished.  In Court, Equus undertook to apply for the removal of the conditions (‘the removal application’) and the Court, ordering that such application must be made within 60 days of its order, postponed the matter.

It appears from the judgment that the removal application was either unsuccessful or not proceeded with, but no more details were furnished.  However, Van Rensburg subsequently re-applied to court for the same relief as requested initially.  Equus defended the matter and asked the Court to exercise its discretion not to grant the interdicts in its favour because (i) it had already obtained special consent to operate a guest house from the property; (ii) other guesthouses were operating in the area; and (iii) there were further applications pending with regard to the application to remove the restrictive conditions which may still be decided on in its favour.

Held:

• A Court does not have a general discretion to suspend the operation of an interdict where the conduct complained of is unlawful.  Such discretion only arises under exceptional circumstances.

• In order to determine whether exceptional circumstances exist, the Court took the following into account:

• the fact that Equus had, over a considerable period of time, sought to advance its own interest in running a guest house without any proper regard to the fact that it was doing so unlawfully;
• that its function (the Court’s) is that of ‘enforcer of the law’ and, were it to exercise its discretion in favour of Equus in the circumstances, it would undermine this role.  It should not allow a party before it to use its own extended unlawful course of conduct and the consequences thereof (the fact that construction has progressed quite far already and costs involved) as a reason why the law should not take its proper course;

• It was therefore held that the present matter is not one where the court should exercise its discretion to refuse an interdict;  

• The Court ordered that: (1) Equus is interdicted from continuing with any building work that encroaches over the building line of the property; and (2) all building works that encroach over the building line, be demolished.