River Gate Properties (Pty) Ltd and Another v Asmal NO and Others (97167/16) [2018] ZAGPJHC 89 (29 March 2018)

River Gate Properties (Pty) Ltd and Another v Asmal NO and Others (97167/16) [2018] ZAGPJHC 89 (29 March 2018)

The court found that the respondents erected thirty residential units on the property without approved building plans, in contravention of the Town Planning Scheme and restrictive title deed conditions. The preliminary approval relied upon by the respondents was invalid, as the official lacked authority and the municipality confirmed no valid plans existed at the relevant time. The doctrine of estoppel does not apply to organs of state where it would result in enforcement of illegality. The principle from Oudekraal and subsequent cases does not entrench the effectiveness of unlawful administrative decisions indefinitely; the rule of law requires that invalid acts not be enforced. The...

Citation
[2018] ZAGPJHC 89
Parties
Applicant: River Gate Properties (Pty) Ltd; Applicant: Christian Hendrik Johnsen Jnr; Respondent: Mohamed Asmal N.O; Respondent: Shaheem Asmal N.O; Respondent: Zaheer Asmal Family Trust; Respondent: Emfuleni Local Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 March 2018
Case Number
97167/16
Procedural Posture
Urgent Application / Judgment After Opposed Motion and Application for Supplementary Affidavit
Outcome
Application granted. Structures declared unlawful. Respondents ordered to demolish illegal buildings. Municipality empowered to demolish if respondents fail. Costs awarded against respondents.
Judges
Molahlehi
Legal Topics
National Building Regulations and Building Standards Act, Unlawful Structures, Municipal Planning Scheme, Removal of Restrictive Conditions, Estoppel Against State, Demolition Order
Land and Property Administrative Law Civil Procedure National Building Regulations and Building Standards Act Unlawful Structures Municipal Planning Scheme Removal of Restrictive Conditions Estoppel Against State +1 more

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Parties

River Gate Properties (Pty) Ltd

Applicant

Christian Hendrik Johnsen Jnr

Applicant

Mohamed Asmal N.O

Respondent

Shaheem Asmal N.O

Respondent

Zaheer Asmal Family Trust

Respondent

Emfuleni Local Municipality

Respondent

Procedural Posture

Urgent Application / Judgment After Opposed Motion and Application for Supplementary Affidavit

Legal Issues

  1. 1 Whether the structures erected on Erf 2541, Three Rivers Township, Vereeniging, are unlawful due to lack of approved building plans.
  2. 2 Whether the respondents contravened the Town Planning Scheme and restrictive title deed conditions.
  3. 3 Whether the municipality or respondents are estopped from raising invalidity of preliminary approval.

Ratio Decidendi

The court found that the respondents erected thirty residential units on the property without approved building plans, in contravention of the Town Planning Scheme and restrictive title deed conditions. The preliminary approval relied upon by the respondents was invalid, as the official lacked authority and the municipality confirmed no valid plans existed at the relevant time. The doctrine of estoppel does not apply to organs of state where it would result in enforcement of illegality. The principle from Oudekraal and subsequent cases does not entrench the effectiveness of unlawful administrative decisions indefinitely; the rule of law requires that invalid acts not be enforced. The...

Court Disposition

Application granted. Structures declared unlawful. Respondents ordered to demolish illegal buildings. Municipality empowered to demolish if respondents fail. Costs awarded against respondents.

Orders

  • The buildings erected or being erected on Erf 2541, Three Rivers Township, Vereeniging, without approved building plans and in contravention of the Town Planning Scheme and restrictive title deed conditions, are declared unlawful.
  • The First and Second respondents, as trustees of Zaheer Asmal Family Trust or successors-in-title, are ordered to demolish the illegal structures under the control and management of the Municipality and in accordance with the Building Act.