Plover's Nest Investment v De Haan (20590/2014) [2015] ZASCA 193 (30 November 2015)

Plover's Nest Investment v De Haan (20590/2014) [2015] ZASCA 193 (30 November 2015)

The Supreme Court of Appeal held that the municipal council's resolution of 30 January 1995, which imposed six conditions including a prohibition on building in the servitude area, was valid and binding. The subsequent clerical error by the municipal official in communicating only two of the six conditions did not constitute a new administrative decision nor did it substitute the council's resolution. The act of notification was a clerical act, not an administrative action subject to review. The municipality's approval of the building plans in 2013 was fatally flawed as it contravened its own binding resolution. The court further found that the servitude registered over the property did...

Citation
[2015] ZASCA 193
Parties
Appellant: Plover's Nest Investments (Pty) Ltd; Respondent: Jacques Willem De Haan; Respondent: The Bitou Local Municipality
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2015
Case Number
20590/2014
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court, Eastern Circuit Local Division
Outcome
Appeal dismissed with costs.
Judges
Lewis, Mhlantla, Leach, Tshiqi, Majiedt
Legal Topics
Municipal Decision Review, Servitude Rights, Building Plan Approval, Clerical Error, Promotion of Administrative Justice Act
Administrative Law Land and Property Municipal Decision Review Servitude Rights Building Plan Approval Clerical Error Promotion of Administrative Justice Act

Case Brief

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Parties

Plover's Nest Investments (Pty) Ltd

Appellant

Jacques Willem De Haan

Respondent

The Bitou Local Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court, Eastern Circuit Local Division

Legal Issues

  1. 1 Whether the failure of a municipal official to correctly communicate council's resolution renders the omitted conditions inoperative.
  2. 2 Whether the official's error constitutes administrative action substituting the council's decision.
  3. 3 Whether the municipality's approval of building plans in contravention of its own prior conditions is lawful.

Ratio Decidendi

The Supreme Court of Appeal held that the municipal council's resolution of 30 January 1995, which imposed six conditions including a prohibition on building in the servitude area, was valid and binding. The subsequent clerical error by the municipal official in communicating only two of the six conditions did not constitute a new administrative decision nor did it substitute the council's resolution. The act of notification was a clerical act, not an administrative action subject to review. The municipality's approval of the building plans in 2013 was fatally flawed as it contravened its own binding resolution. The court further found that the servitude registered over the property did...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.