Ehlers and Others v Rand Water Board (484/2004) [2005] ZASCA 122; [2006] 2 All SA 121 (SCA); 2006 (3) SA 299 (SCA) (30 November 2005)

Ehlers and Others v Rand Water Board (484/2004) [2005] ZASCA 122; [2006] 2 All SA 121 (SCA); 2006 (3) SA 299 (SCA) (30 November 2005)

The Supreme Court of Appeal held that the approval stamp on the sectional title plan was conditional and did not constitute the requisite written consent for the erection of habitable buildings below the defined flood control line. The Company and its successors in title, including the appellants, were bound by the statutory requirements of the Physical Planning Act and the Guide Plan, which expressly prohibited such buildings without written consent. The evidence established that no unconditional consent was granted, and the appellants' reliance on section 48 of the Sectional Titles Act was misplaced, as it did not override the statutory obligation to obtain consent from the Rand Water...

Citation
[2005] ZASCA 122
Parties
Appellant: Dirk Leonardus Ehlers; Appellant: A W Wessels N.O.; Appellant: M F C Wessels N.O.; Appellant: G L Bishop N.O.; Respondent: Rand Water Board
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2005
Case Number
484/2004
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal dismissed with costs.
Judges
MPATI DP, ZULMAN, CAMERON, NUGENT, COMBRINCK
Legal Topics
Physical Planning Act, Flood Control Line, Sectional Titles Scheme, Statutory Consent, Demolition of Structures
Land and Property Administrative Law Physical Planning Act Flood Control Line Sectional Titles Scheme Statutory Consent Demolition of Structures

Case Brief

Summary, issues, holding and outcome

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Parties

Dirk Leonardus Ehlers

Appellant

A W Wessels N.O.

Appellant

M F C Wessels N.O.

Appellant

G L Bishop N.O.

Appellant

Rand Water Board

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the appellants had the requisite written consent from the Rand Water Board to erect habitable buildings below the defined flood control line.
  2. 2 Whether the approval stamp on the sectional title plan constituted unconditional consent for the buildings below the flood control line.
  3. 3 Whether section 48 of the Sectional Titles Act applies to the demolition of structures below the flood control line.

Ratio Decidendi

The Supreme Court of Appeal held that the approval stamp on the sectional title plan was conditional and did not constitute the requisite written consent for the erection of habitable buildings below the defined flood control line. The Company and its successors in title, including the appellants, were bound by the statutory requirements of the Physical Planning Act and the Guide Plan, which expressly prohibited such buildings without written consent. The evidence established that no unconditional consent was granted, and the appellants' reliance on section 48 of the Sectional Titles Act was misplaced, as it did not override the statutory obligation to obtain consent from the Rand Water...

Court Disposition

Appeal dismissed with costs.

Orders

  • The first appellant is ordered to remove all habitable buildings and structures, including toilets and drains, on units 18 and 19 of the Sectional Titles Scheme known as Klub 40 within 120 days of the order.
  • The appellants are ordered to pay the costs of the action, limited in the case of the second, third and fourth appellants to the costs incurred prior to the preparation for trial.