Tucker v Schemmer and Another (1460/2008) [2008] ZAECHC 185 (6 November 2008)

Tucker v Schemmer and Another (1460/2008) [2008] ZAECHC 185 (6 November 2008)

The court found that the applicant had locus standi to enforce the restrictive condition B(g) of the title deed, as such conditions are intended to benefit all erven in the township. The garage erected by the first respondent was in violation of both the restrictive condition and the zoning scheme regulations, and was not built in accordance with approved plans as required by law. Although the first respondent had renewed his application to the MEC for removal of the restrictive condition, the application was not in proper form at the time the matter was heard. The court held that a postponement was appropriate pending the outcome of the administrative process, but that the applicant was...

Citation
[2008] ZAECHC 185
Parties
Applicant: Jennifer Joy Tucker; Respondent: Robert H Schemmer; Respondent: Ndlambe Municipality
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
6 November 2008
Case Number
1460/2008
Procedural Posture
Urgent Application / Application for Enforcement of Restrictive Conditions and Zoning Regulations; Application for Postponement Pending Administrative Decision
Outcome
Application postponed sine die pending the outcome of the first respondent's application to the MEC for removal of the restrictive condition. First respondent ordered to pay wasted costs occasioned by the postponement.
Judges
Pickering
Legal Topics
Restrictive Conditions, Zoning Scheme Regulations, National Building Regulations, Locus Standi, Postponement, Review of Administrative Action
Land and Property Administrative Law Civil Procedure Restrictive Conditions Zoning Scheme Regulations National Building Regulations Locus Standi Postponement +1 more

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Parties

Jennifer Joy Tucker

Applicant

Robert H Schemmer

Respondent

Ndlambe Municipality

Respondent

Procedural Posture

Urgent Application / Application for Enforcement of Restrictive Conditions and Zoning Regulations; Application for Postponement Pending Administrative Decision

Legal Issues

  1. 1 Whether the applicant has locus standi to enforce restrictive condition B(g) of the title deed against the first respondent.
  2. 2 Whether the garage erected by the first respondent contravenes restrictive conditions and zoning scheme regulations.
  3. 3 Whether the application should be postponed pending the outcome of the first respondent's renewed application to the MEC for removal of restrictive conditions.

Ratio Decidendi

The court found that the applicant had locus standi to enforce the restrictive condition B(g) of the title deed, as such conditions are intended to benefit all erven in the township. The garage erected by the first respondent was in violation of both the restrictive condition and the zoning scheme regulations, and was not built in accordance with approved plans as required by law. Although the first respondent had renewed his application to the MEC for removal of the restrictive condition, the application was not in proper form at the time the matter was heard. The court held that a postponement was appropriate pending the outcome of the administrative process, but that the applicant was...

Court Disposition

Application postponed sine die pending the outcome of the first respondent's application to the MEC for removal of the restrictive condition. First respondent ordered to pay wasted costs occasioned by the postponement.

Orders

  • The application is postponed sine die pending the outcome of the first respondent's application to the Member of the Executive Council, Eastern Cape, Department of Housing, Local Government and Traditional Affairs for the removal of the restrictive condition against the title deed of Erf 597, Boesmansriviermond.
  • First respondent is ordered to pay the wasted costs occasioned by the postponement.