Neves and Others v Merlico 148 CC and Another (15961/2008) [2010] ZAWCHC 115 (14 April 2010)

Neves and Others v Merlico 148 CC and Another (15961/2008) [2010] ZAWCHC 115 (14 April 2010)

The court found that the applicants had a clear right to require the first respondent to comply with the National Building Regulations Act and relevant zoning scheme regulations. The applicants had a reasonable apprehension that their privacy would be invaded by unauthorised construction, and urgent relief was the only satisfactory remedy. The delay in filing replying affidavits was satisfactorily explained and did not prejudice the respondent. The introduction of new matter in the affidavits was relevant and justified, and the respondent was granted leave to file further affidavits addressing the new matter. The respondent's application to strike out portions of the affidavits was...

Citation
[2010] ZAWCHC 115
Parties
Applicant: Carlos Anthony Neves; Applicant: Rob Vilose; Applicant: John Dennis Gordon; Respondent: Merlico 148 CC; Respondent: Stellenbosch Municipality
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
14 April 2010
Case Number
15961/2008
Procedural Posture
Urgent Application / Final Interdict and Interlocutory Applications
Outcome
Final interdict granted in favour of the applicants; condonation for late filing of affidavits granted; application to strike out refused; leave granted to file further affidavits; costs awarded against the first respondent.
Judges
Denzil Potgieter
Legal Topics
Building Regulations, Final Interdict, Condonation of Late Filing, Zoning Scheme Regulations
Land and Property Civil Procedure Building Regulations Final Interdict Condonation of Late Filing Zoning Scheme Regulations

Case Brief

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Parties

Carlos Anthony Neves

Applicant

Rob Vilose

Applicant

John Dennis Gordon

Applicant

Merlico 148 CC

Respondent

Stellenbosch Municipality

Respondent

Procedural Posture

Urgent Application / Final Interdict and Interlocutory Applications

Legal Issues

  1. 1 Whether the applicants are entitled to final interdictory relief restraining the first respondent from unauthorised building work on erf 1332 Franschhoek.
  2. 2 Whether condonation should be granted for the late filing of replying and supplementary affidavits by the applicants.
  3. 3 Whether the first respondent's application to strike out portions of the affidavits should succeed.

Ratio Decidendi

The court found that the applicants had a clear right to require the first respondent to comply with the National Building Regulations Act and relevant zoning scheme regulations. The applicants had a reasonable apprehension that their privacy would be invaded by unauthorised construction, and urgent relief was the only satisfactory remedy. The delay in filing replying affidavits was satisfactorily explained and did not prejudice the respondent. The introduction of new matter in the affidavits was relevant and justified, and the respondent was granted leave to file further affidavits addressing the new matter. The respondent's application to strike out portions of the affidavits was...

Court Disposition

Final interdict granted in favour of the applicants; condonation for late filing of affidavits granted; application to strike out refused; leave granted to file further affidavits; costs awarded against the first respondent.

Orders

  • The late filing of the replying affidavits and the supplementary affidavit by the first applicant is condoned.
  • The first respondent's application to strike out is refused.