Rand Water Raad v Regspersoon, Klub 40 en Andere (4462/2002) [2004] ZAFSHC 60 (17 June 2004)

Rand Water Raad v Regspersoon, Klub 40 en Andere (4462/2002) [2004] ZAFSHC 60 (17 June 2004)

The court found that the approval of the sectional title plan by the plaintiff was not unconditional but was subject to the removal or alteration of unlawful structures so that they could not be used for habitation. The agreement between the plaintiff and the original landowner, as evidenced by correspondence and conduct, made it clear that approval was conditional. The defendants were not parties to the original negotiations but were bound by the conditions attached to the approval. The argument that the plaintiff's stamp on the plan constituted unconditional consent was rejected. The court further held that section 48 of the Sectional Titles Act did not preclude the plaintiff from...

Citation
[2004] ZAFSHC 60
Parties
Plaintiff: Rand Water Raad; Defendant: Die Regspersoon, Klub 40; Defendant: Registrateur van Aktes, Bloemfontein; Defendant: Die Landmeter-Generaal, Bloemfontein; Defendant: Anniesrust Ontwikkelings (Pty) Ltd; Defendant: J.V. van der Merwe; Defendant: H.J.M. van der Merwe; Defendant: Leonie van der Walt N.O.; Defendant: Leonie Linda van der Walt N.O.; Defendant: Jannie Marthinus van der Walt N.O.; Defendant: A.W. Wessels N.O.; Defendant: M.F.C. Wessels N.O.; Defendant: G.L. Bishop N.O.; Defendant: Gavin Leo Shear; Defendant: Martiq 220 CC; Defendant: Dirk Leonardus Ehlers; Defendant: Bokes & Franger Property Sales (Pty) Ltd; Defendant: R.M. Botha N.O.; Defendant: C.J. Botha N.O.; Defendant: J.N. du Preez N.O.; Defendant: Jan Diederick van der Merwe N.O.; Defendant: Aletta Johanna van der Merwe N.O.; Defendant: Joachim Frederick de Beer N.O.; Defendant: Francois Terblanche; Defendant: Gertruida Catharina Terblanche; Defendant: M.L.C. Kruger; Defendant: David Johannes Scholtz; Defendant: Theresa Scholtz
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 June 2004
Case Number
4462/2002
Procedural Posture
Civil Action / Trial Judgment
Outcome
Plaintiff's claim for removal of unlawful structures succeeded against the relevant defendants. Costs awarded as specified.
Judges
Van Coppenhagen, R
Legal Topics
Deed Registration, Illegal Structures, Physical Planning Act, Sectional Title Schemes, Locus Standi
Land and Property Administrative Law Deed Registration Illegal Structures Physical Planning Act Sectional Title Schemes Locus Standi

Case Brief

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Parties

Rand Water Raad

Plaintiff

Die Regspersoon, Klub 40

Defendant

Registrateur van Aktes, Bloemfontein

Defendant

Die Landmeter-Generaal, Bloemfontein

Defendant

Anniesrust Ontwikkelings (Pty) Ltd

Defendant

J.V. van der Merwe

Defendant

H.J.M. van der Merwe

Defendant

Leonie van der Walt N.O.

Defendant

Leonie Linda van der Walt N.O.

Defendant

Jannie Marthinus van der Walt N.O.

Defendant

A.W. Wessels N.O.

Defendant

M.F.C. Wessels N.O.

Defendant

G.L. Bishop N.O.

Defendant

Gavin Leo Shear

Defendant

Martiq 220 CC

Defendant

Dirk Leonardus Ehlers

Defendant

Bokes & Franger Property Sales (Pty) Ltd

Defendant

R.M. Botha N.O.

Defendant

C.J. Botha N.O.

Defendant

J.N. du Preez N.O.

Defendant

Jan Diederick van der Merwe N.O.

Defendant

Aletta Johanna van der Merwe N.O.

Defendant

Joachim Frederick de Beer N.O.

Defendant

Francois Terblanche

Defendant

Gertruida Catharina Terblanche

Defendant

M.L.C. Kruger

Defendant

David Johannes Scholtz

Defendant

Theresa Scholtz

Defendant

Procedural Posture

Civil Action / Trial Judgment

Legal Issues

  1. 1 Whether the approval of the sectional title plan by the plaintiff constituted unconditional consent for the erection or retention of habitable structures below the flood line.
  2. 2 Whether the defendants were entitled to retain or erect buildings for habitation on the relevant portions contrary to the planning restrictions.
  3. 3 Whether the plaintiff had locus standi to seek demolition or alteration of buildings under the Sectional Titles Act.

Ratio Decidendi

The court found that the approval of the sectional title plan by the plaintiff was not unconditional but was subject to the removal or alteration of unlawful structures so that they could not be used for habitation. The agreement between the plaintiff and the original landowner, as evidenced by correspondence and conduct, made it clear that approval was conditional. The defendants were not parties to the original negotiations but were bound by the conditions attached to the approval. The argument that the plaintiff's stamp on the plan constituted unconditional consent was rejected. The court further held that section 48 of the Sectional Titles Act did not preclude the plaintiff from...

Court Disposition

Plaintiff's claim for removal of unlawful structures succeeded against the relevant defendants. Costs awarded as specified.

Orders

  • 15th defendant is ordered to remove at own cost all habitable buildings and structures, including associated toilets and drains, on portions 18 and 19 of the sectional title scheme known as Klub 40.
  • Such removal must be effected within 120 days from the date of this order.