Mangaung Metropolitan Municipality v Tsoei and Another (3367/2016) [2016] ZAFSHC 232 (15 December 2016)

Mangaung Metropolitan Municipality v Tsoei and Another (3367/2016) [2016] ZAFSHC 232 (15 December 2016)

The court found that the respondents' property unlawfully encroached upon the applicant's road reserve, obstructing public infrastructure and pedestrian access. No valid compromise or agreement was reached, and even if one had been, it would be void as contrary to public policy. The respondents were not entitled to erect any structure on the applicant's property, and their conduct in extending the encroachment aggravated the situation. The court exercised its discretion to order removal of the encroachment, finding that alternatives proposed by the respondents were impractical and contrary to public interest. A punitive costs order was justified due to the respondents' conduct.

Citation
[2016] ZAFSHC 232
Parties
Applicant: Mangaung Metropolitan Municipality; Respondent: Keheletwe Asael Tsoei; Respondent: Lehlohonolo Asael Tsoei
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
15 December 2016
Case Number
3367/2016
Procedural Posture
Urgent Application / Final Judgment After Opposed Motion
Outcome
Application granted. Respondents ordered to remove all encroachment within 21 days, failing which the applicant may remove it at respondents' cost. Respondents to pay costs on attorney/client scale.
Judges
J.J.F. Hefer
Legal Topics
Encroachment, Removal of Structures, Public Policy, Demolition Order
Land and Property Civil Procedure Encroachment Removal of Structures Public Policy Demolition Order

Case Brief

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Parties

Mangaung Metropolitan Municipality

Applicant

Keheletwe Asael Tsoei

Respondent

Lehlohonolo Asael Tsoei

Respondent

Procedural Posture

Urgent Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the respondents' property unlawfully encroaches upon the applicant's road reserve.
  2. 2 Whether a valid compromise or agreement was reached between the parties regarding the encroachment.
  3. 3 Whether any agreement or compromise, if reached, is enforceable or void as contrary to public policy.

Ratio Decidendi

The court found that the respondents' property unlawfully encroached upon the applicant's road reserve, obstructing public infrastructure and pedestrian access. No valid compromise or agreement was reached, and even if one had been, it would be void as contrary to public policy. The respondents were not entitled to erect any structure on the applicant's property, and their conduct in extending the encroachment aggravated the situation. The court exercised its discretion to order removal of the encroachment, finding that alternatives proposed by the respondents were impractical and contrary to public interest. A punitive costs order was justified due to the respondents' conduct.

Court Disposition

Application granted. Respondents ordered to remove all encroachment within 21 days, failing which the applicant may remove it at respondents' cost. Respondents to pay costs on attorney/client scale.

Orders

  • The respondents are ordered to remove any and all encroachment of their property onto the road reserve and property of the applicant in front of and/or adjacent to erf [...], M. S., B., Bloemfontein also known as erf 30702, Mangaung Extension […], Bloemfontein, Free State Province.
  • Should the respondents fail or neglect to remove the encroachment within twenty one days after an order herein is granted, the applicant is authorised to, by way of its employees or contractors, remove the encroachment.