Shrives N.O and Others v Sammaritano and Others (2023-120777) [2024] ZAGPJHC 59 (9 January 2024)

Shrives N.O and Others v Sammaritano and Others (2023-120777) [2024] ZAGPJHC 59 (9 January 2024)

The applicants failed to establish a prima facie right to discharge water via the drainage pipe, either under common law or the applicable municipal land use scheme. The common law obligation applies only to the natural flow from undeveloped land, and the applicants' property is developed. There was no evidence that the municipality expressed the required opinion or authorised the connection to the stormwater system. The risk of harm to the applicants was not sufficiently established, as alternative drainage solutions existed and the inconvenience suffered did not amount to serious harm. The balance of convenience did not favour the applicants, as the respondents experienced severe...

Citation
[2024] ZAGPJHC 59
Parties
Applicant: Robert Sean Shrives N.O; Applicant: Carrie Leigh Cooper N.O; Applicant: William Glen Milford McKenzie N.O; Respondent: Anna Sammaritano; Respondent: Silvestro Sammaritano; Respondent: City of Ekurhuleni Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 January 2024
Case Number
2023-120777
Procedural Posture
Urgent Application / Application for Interim Interdict Pending Final Determination of Rights and Obligations.
Outcome
Application dismissed with costs.
Judges
G S Myburgh
Legal Topics
Interim Interdict, Natural Flow of Water, Stormwater Drainage, Praedial Servitude, Municipal Land Use Scheme
Land and Property Civil Procedure Interim Interdict Natural Flow of Water Stormwater Drainage Praedial Servitude Municipal Land Use Scheme

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Parties

Robert Sean Shrives N.O

Applicant

Carrie Leigh Cooper N.O

Applicant

William Glen Milford McKenzie N.O

Applicant

Anna Sammaritano

Respondent

Silvestro Sammaritano

Respondent

City of Ekurhuleni Metropolitan Municipality

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict Pending Final Determination of Rights and Obligations.

Legal Issues

  1. 1 Whether the applicants have a prima facie right to discharge water from their property onto the respondents' property via a drainage pipe.
  2. 2 Whether the requirements for interim interdictory relief are satisfied.
  3. 3 Whether the applicants have a common law or statutory right to the relief sought.

Ratio Decidendi

The applicants failed to establish a prima facie right to discharge water via the drainage pipe, either under common law or the applicable municipal land use scheme. The common law obligation applies only to the natural flow from undeveloped land, and the applicants' property is developed. There was no evidence that the municipality expressed the required opinion or authorised the connection to the stormwater system. The risk of harm to the applicants was not sufficiently established, as alternative drainage solutions existed and the inconvenience suffered did not amount to serious harm. The balance of convenience did not favour the applicants, as the respondents experienced severe...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.