Scott NO and Another v Nelson Mandela Bay Metropolitan Municipality (920/2012) [2013] ZAECPEHC 3 (29 January 2013)

Scott NO and Another v Nelson Mandela Bay Metropolitan Municipality (920/2012) [2013] ZAECPEHC 3 (29 January 2013)

The court found that the respondent failed to make a decision on the applicants' proposal for amendment of a servitude, despite an obligation to do so and an undisputed undertaking to communicate its decision. The applicants established a clear right to a decision and to specific performance regarding electricity supply, as the respondent had approved building plans and accepted payment. The court held that the servitude could be amended by agreement, as envisaged in the title deed, and that fairness justified the imposition of the court's decision. However, because the servitude benefits members of the public, justice and fairness require that interested parties be notified and afforded...

Citation
[2013] ZAECPEHC 3
Parties
Applicant: Cameron Scott N.O.; Applicant: Anthony James Charlton Reid N.O.; Respondent: Nelson Mandela Bay Metropolitan Municipality
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
29 January 2013
Case Number
920/2012
Procedural Posture
Review Application / Rule Nisi Issued; Interim Relief Pending Final Determination
Outcome
Rule Nisi issued; interim relief granted for electricity supply; provisional order for amendment of servitude subject to notice to interested parties.
Judges
N Dambuza
Legal Topics
Promotion of Administrative Justice Act, Servitude Amendment, Mandamus, Joinder, Specific Performance, Municipal Powers
Administrative Law Land and Property Civil Procedure Promotion of Administrative Justice Act Servitude Amendment Mandamus Joinder Specific Performance +1 more

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Parties

Cameron Scott N.O.

Applicant

Anthony James Charlton Reid N.O.

Applicant

Nelson Mandela Bay Metropolitan Municipality

Respondent

Procedural Posture

Review Application / Rule Nisi Issued; Interim Relief Pending Final Determination

Legal Issues

  1. 1 Whether the respondent's failure to make a decision on the applicants' proposal for amendment of a servitude is unlawful.
  2. 2 Whether the applicants are entitled to an order compelling the respondent to provide electricity supply to the property.
  3. 3 Whether the Registrar of Deeds was required to be joined as a party to the proceedings.

Ratio Decidendi

The court found that the respondent failed to make a decision on the applicants' proposal for amendment of a servitude, despite an obligation to do so and an undisputed undertaking to communicate its decision. The applicants established a clear right to a decision and to specific performance regarding electricity supply, as the respondent had approved building plans and accepted payment. The court held that the servitude could be amended by agreement, as envisaged in the title deed, and that fairness justified the imposition of the court's decision. However, because the servitude benefits members of the public, justice and fairness require that interested parties be notified and afforded...

Court Disposition

Rule Nisi issued; interim relief granted for electricity supply; provisional order for amendment of servitude subject to notice to interested parties.

Orders

  • A Rule Nisi is issued calling upon interested parties to show cause before the Court on or before 5 March 2013 why the following order should not be granted.
  • Within seven days of this order, the respondent is to provide a supply of electricity to the applicants at erf 6888 Korsten as undertaken in the electricity supply agreement dated 27 October 2010.