H.R.J Properties (Pty) Ltd v Mohammed and Another (17547/17) [2019] ZAWCHC 185 (25 February 2019)

H.R.J Properties (Pty) Ltd v Mohammed and Another (17547/17) [2019] ZAWCHC 185 (25 February 2019)

The court found that the servitude right of way, as described in the title deeds, is not limited to pedestrian access but includes vehicular access. The proposed wall would materially diminish the applicant's rights by obstructing vehicular access to a significant portion of the servitude area, which is unlawful....

Source-derived case information.

Citation
[2019] ZAWCHC 185
Parties
Applicant: H R J Properties (Pty) Ltd; Respondent: Rayda Mohammed; Respondent: City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
25 February 2019
Case Number
17547/17
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The building plan approval is reviewed and set aside. The first respondent is interdicted from constructing the wall. Costs awarded jointly and severally against both respondents, with the City's liability limited to unopposed costs.
Judges
Vos, AJ
Legal Topics
Servitude Right of Way, Building Plan Approval, Unlawful Diminution of Rights, Promotion of Administrative Justice Act, Error of Law, Property Valuation
Administrative Law Land and Property Servitude Right of Way Building Plan Approval Unlawful Diminution of Rights Promotion of Administrative Justice Act Error of Law Property Valuation

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Parties

H R J Properties (Pty) Ltd

Applicant

Rayda Mohammed

Respondent

City of Cape Town

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the servitude right of way includes vehicular access or is limited to pedestrian access.
  2. 2 Whether the proposed wall materially diminishes the applicant's servitude rights.
  3. 3 Whether the City of Cape Town's approval of the building plans was lawful, reasonable, and procedurally fair under PAJA.

Ratio Decidendi

The court found that the servitude right of way, as described in the title deeds, is not limited to pedestrian access but includes vehicular access. The proposed wall would materially diminish the applicant's rights by obstructing vehicular access to a significant portion of the servitude area, which is unlawful. The City of Cape Town's approval of the building plans was set aside because the building control officer failed to be positively satisfied that none of the disqualifying factors under section 7(1) of the Building Act were present, particularly the derogation of property value. The evidence of the applicant's expert on property value was accepted, and the administrative decision...

Court Disposition

Application granted. The building plan approval is reviewed and set aside. The first respondent is interdicted from constructing the wall. Costs awarded jointly and severally against both respondents, with the City's liability limited to unopposed costs.

Orders

  • The decision taken on 7 July 2017 by the building control officer of the City of Cape Town, approving building plans for a wall in respect of Erf […], Cape Town at C Street, Woodstock under plan approval number 97508637 and plan no. BP/0000070317314/2017, is reviewed and set aside.
  • The first respondent is interdicted from constructing a wall in the applicant’s servitude right of way as set out in diagram SG No 2772/2003 and annexure 'JS4' to the founding affidavit.