Du Raan v Stuart and Another (09/49826) [2010] ZAGPJHC 113 (11 November 2010)

Du Raan v Stuart and Another (09/49826) [2010] ZAGPJHC 113 (11 November 2010)

The court found that the applicant failed to prove that the City of Johannesburg had provided an opinion as contemplated in clause 15(2) of the Town Planning Scheme. The correspondence from Mr Sello constituted comments rather than a binding administrative opinion, as there was no consultation with the respondents, no inspection of their property, and no opportunity for them to make representations or receive reasons. The applicant did not discharge the onus of proving the existence of such an opinion. Accordingly, the application for a declaratory order and authorisation to insert weeping holes was dismissed with costs.

Citation
[2010] ZAGPJHC 113
Parties
Applicant: Sharon Margaret Du Raan; Respondent: Arnold Roland Stuart; Respondent: Denise Charmaine Stuart
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 November 2010
Case Number
09/49826
Procedural Posture
Civil Application / Final Judgment
Outcome
Application dismissed with costs.
Judges
Kathree-Setiloane
Legal Topics
Stormwater Management, Town Planning Scheme, Administrative Action, Declaratory Relief
Land and Property Administrative Law Stormwater Management Town Planning Scheme Administrative Action Declaratory Relief

Case Brief

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Parties

Sharon Margaret Du Raan

Applicant

Arnold Roland Stuart

Respondent

Denise Charmaine Stuart

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the City of Johannesburg expressed an opinion as contemplated in clause 15(2) of the Town Planning Scheme.
  2. 2 Whether the applicant is entitled to insert weeping holes in the boundary wall to allow stormwater to flow onto the respondents' property.
  3. 3 Whether the applicant obtained administrative action binding on the parties under PAJA.

Ratio Decidendi

The court found that the applicant failed to prove that the City of Johannesburg had provided an opinion as contemplated in clause 15(2) of the Town Planning Scheme. The correspondence from Mr Sello constituted comments rather than a binding administrative opinion, as there was no consultation with the respondents, no inspection of their property, and no opportunity for them to make representations or receive reasons. The applicant did not discharge the onus of proving the existence of such an opinion. Accordingly, the application for a declaratory order and authorisation to insert weeping holes was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.