Albert Luthuli Local Municipality and Another v Erwe 201 and 207 Germiston West CC and Others (2822/2027) [2022] ZAMPMBHC 29 (11 May 2022)
The court found that both the 2011 and 2017 orders are constitutionally sound and enforceable. The Municipality's arguments regarding impossibility, lack of specificity, and constitutional invalidity were rejected. The orders do not directly affect the rights of occupiers at this stage, as any eviction or demolition would require further proceedings where affected parties could be heard. The Municipality's delay in seeking rescission was inordinate and unexplained, and the defence of res judicata applies, barring the application. The alternative relief sought by the Municipality is unnecessary, as compliance with the original orders would address the issues raised. Costs of the...
- Citation
- [2022] ZAMPMBHC 29
- Parties
- Applicant: Albert Luthuli Local Municipality; Applicant: Mandla Stanley Dlamini; Respondent: Erwe 201 and 207 Germiston West CC; Respondent: Cambridge Dlamini; Respondent: Forever Resorts Aventura (Pty) Ltd; Respondent: MEC for Human Settlement: Mpumalanga; Respondent: Minister of Human Settlement; Respondent: Chief Land Claims Commissioner
- Court
- Mbombela High Court, Mpumalanga
- Jurisdiction
- South Africa
- Judgment Date
- 11 May 2022
- Case Number
- 2822/2027
- Procedural Posture
- Review Application / Application to Set Aside Previous Court Orders and for Alternative Relief
- Outcome
- Application dismissed with costs; alternative relief refused; costs of postponement awarded against Erwe 201.
- Judges
- B A Mashile
- Legal Topics
- Eviction Proceedings, Municipal Duties, Building Regulations, Consent to Occupy Land, Res Judicata, Constitutional Rights
Case Brief
Summary, issues, holding and outcome
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Parties
Albert Luthuli Local Municipality
Applicant
Mandla Stanley Dlamini
Applicant
Erwe 201 and 207 Germiston West CC
Respondent
Cambridge Dlamini
Respondent
Forever Resorts Aventura (Pty) Ltd
Respondent
MEC for Human Settlement: Mpumalanga
Respondent
Minister of Human Settlement
Respondent
Chief Land Claims Commissioner
Respondent
Procedural Posture
Review Application / Application to Set Aside Previous Court Orders and for Alternative Relief
Legal Issues
- 1 Are the 2011 and 2017 court orders unconstitutional or unlawful.
- 2 Does the Municipality have a legal duty to interdict occupiers from erecting structures under section 21 of the National Building Regulations and Standards Act.
- 3 Is the failure to identify specific structures or occupiers fatal to the enforceability of the orders.
Ratio Decidendi
The court found that both the 2011 and 2017 orders are constitutionally sound and enforceable. The Municipality's arguments regarding impossibility, lack of specificity, and constitutional invalidity were rejected. The orders do not directly affect the rights of occupiers at this stage, as any eviction or demolition would require further proceedings where affected parties could be heard. The Municipality's delay in seeking rescission was inordinate and unexplained, and the defence of res judicata applies, barring the application. The alternative relief sought by the Municipality is unnecessary, as compliance with the original orders would address the issues raised. Costs of the...
Court Disposition
Application dismissed with costs; alternative relief refused; costs of postponement awarded against Erwe 201.
Orders
- The application is dismissed with costs including those of two Counsel, where so employed.
- Erwe 201 is directed to pay the costs of the postponement including those of two Counsel, where so employed.
Full Case Text
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