Mamede and Others v Strategic Executive Department of Housing, City Planning, Land and Environmental Planning of the City of Tshwane and Others (10864/02) [2009] ZAGPHC 37 (25 February 2009)

Mamede and Others v Strategic Executive Department of Housing, City Planning, Land and Environmental Planning of the City of Tshwane and Others (10864/02) [2009] ZAGPHC 37 (25 February 2009)

The court found that the Fourth Respondent's building, after remedial excavation, complied with the definition of a two-storey structure under the Pretoria Town Planning Scheme. The Third Respondent exercised its discretion lawfully in approving the building plans and encroachments, and the consent provided by the First Applicant was valid. The aesthetic committee that approved the plans was properly constituted under section 79 of the Local Government: Municipal Structures Act and functioned as building control officers. The Applicants failed to establish that the boundary retainer wall was unsafe or non-compliant, and any defects were attributable to their own failure to submit building...

Citation
[2009] ZAGPHC 37
Parties
Applicant: Sergio Mateus Pais Mamede; Applicant: Maria Cecilia da Silva Mendoca Pais Mamede; Applicant: David Edward Denny Black; Respondent: Strategic Executive: Department of Housing, City Planning, Land and Environmental Planning of the City of Tshwane; Respondent: Manager: The City of Tshwane Metropolitan Municipality; Respondent: The City of Tshwane Metropolitan Municipality; Respondent: Aart Sparenburg Geyer
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
25 February 2009
Case Number
10864/02
Procedural Posture
Review Application / Final Judgment After Opposed Motion
Outcome
Application dismissed with costs, including costs of two counsels for the Fourth Respondent.
Judges
Molopa
Legal Topics
Building Plan Approval, Municipal Discretion, Encroachment, Ultra Vires, Procedural Fairness, Internal Remedies
Administrative Law Land and Property Civil Procedure Building Plan Approval Municipal Discretion Encroachment Ultra Vires Procedural Fairness +1 more

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Parties

Sergio Mateus Pais Mamede

Applicant

Maria Cecilia da Silva Mendoca Pais Mamede

Applicant

David Edward Denny Black

Applicant

Strategic Executive: Department of Housing, City Planning, Land and Environmental Planning of the City of Tshwane

Respondent

Manager: The City of Tshwane Metropolitan Municipality

Respondent

The City of Tshwane Metropolitan Municipality

Respondent

Aart Sparenburg Geyer

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the approval of the Fourth Respondent's building plans by the Third Respondent was lawful and procedurally fair.
  2. 2 Whether the structure erected by the Fourth Respondent contravened the Pretoria Town Planning Scheme 1974 and the National Building Regulations and Standards Act, No 103 of 1977.
  3. 3 Whether the encroachments on the Applicants' properties were lawfully approved and whether interpartite agreements were required.

Ratio Decidendi

The court found that the Fourth Respondent's building, after remedial excavation, complied with the definition of a two-storey structure under the Pretoria Town Planning Scheme. The Third Respondent exercised its discretion lawfully in approving the building plans and encroachments, and the consent provided by the First Applicant was valid. The aesthetic committee that approved the plans was properly constituted under section 79 of the Local Government: Municipal Structures Act and functioned as building control officers. The Applicants failed to establish that the boundary retainer wall was unsafe or non-compliant, and any defects were attributable to their own failure to submit building...

Court Disposition

Application dismissed with costs, including costs of two counsels for the Fourth Respondent.

Orders

  • The Applicants' application is dismissed with costs.
  • Costs to include the costs of two counsels in respect of the Fourth Respondent.