Malan and Another v Ardconnel Investments (Pty) Ltd. (379/86) [1987] ZASCA 155; [1988] 2 All SA 128 (A) (2 December 1987)

Malan and Another v Ardconnel Investments (Pty) Ltd. (379/86) [1987] ZASCA 155; [1988] 2 All SA 128 (A) (2 December 1987)

The Supreme Court of Appeal held that the restrictive title conditions registered against erf 42 are praedial servitudes that enure for the reciprocal benefit of all erven in the township, including the respondent's property. The respondent thus has locus standi to enforce observance of these conditions. The business activities conducted by the second appellant on erf 42, namely the operation of a retail food supply business, constituted an unlawful contravention of Condition B7(a) of the township's title conditions, as the approval granted by the local authority did not override the restrictive conditions registered against the property. The court further held that proof of damage or...

Citation
[1987] ZASCA 155
Parties
Appellant: Daniel Johannes Paulus Malan; Appellant: Antonio Castanho; Respondent: Ardconnel Investments (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 December 1987
Case Number
379/86
Procedural Posture
Civil Appeal / Appeal From the Witwatersrand Local Division
Outcome
Appeal dismissed with costs; costs payable by the appellants jointly and severally, the one paying the other to be absolved. Costs of the cross-appeal payable by the respondent.
Judges
Joubert, Smalberger, Nestadt, Nicholas, Steyn
Legal Topics
Restrictive Title Conditions, Praedial Servitude, Township Development, Locus Standi, Interdict, Town Planning Ordinance
Land and Property Civil Procedure Restrictive Title Conditions Praedial Servitude Township Development Locus Standi Interdict Town Planning Ordinance

Case Brief

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Parties

Daniel Johannes Paulus Malan

Appellant

Antonio Castanho

Appellant

Ardconnel Investments (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From the Witwatersrand Local Division

Legal Issues

  1. 1 Whether the respondent has locus standi to enforce restrictive title conditions against the appellants.
  2. 2 Whether the business activities conducted by the second appellant on erf 42 contravene Condition B7(a) of the township's title conditions.
  3. 3 Whether the approval by the local authority overrides restrictive title conditions registered against the property.

Ratio Decidendi

The Supreme Court of Appeal held that the restrictive title conditions registered against erf 42 are praedial servitudes that enure for the reciprocal benefit of all erven in the township, including the respondent's property. The respondent thus has locus standi to enforce observance of these conditions. The business activities conducted by the second appellant on erf 42, namely the operation of a retail food supply business, constituted an unlawful contravention of Condition B7(a) of the township's title conditions, as the approval granted by the local authority did not override the restrictive conditions registered against the property. The court further held that proof of damage or...

Court Disposition

Appeal dismissed with costs; costs payable by the appellants jointly and severally, the one paying the other to be absolved. Costs of the cross-appeal payable by the respondent.

Orders

  • The appeal is dismissed with costs, payable by the appellants jointly and severally, the one paying the other to be absolved.
  • The costs of the cross-appeal are payable by the respondent.