Two Tyres Services (Pty) Ltd v City of Tshwane Metropolitan Municipality (057109/22) [2024] ZAGPPHC 394 (11 March 2024)

Two Tyres Services (Pty) Ltd v City of Tshwane Metropolitan Municipality (057109/22) [2024] ZAGPPHC 394 (11 March 2024)

The court found that clause 3 of the servitude prohibits the erection of buildings or structures within the servitude area, but does not classify uncovered parking bays as buildings or structures. The clause anticipates human activity, such as the placement of crops or rubbish, subject to height restrictions. The...

Source-derived case information.

Citation
[2024] ZAGPPHC 394
Parties
Applicant: Two Tyres Services (Pty) Ltd; Respondent: City of Tshwane Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 March 2024
Case Number
057109/22
Procedural Posture
Declaratory Application / Judgment
Outcome
Application granted. Declaratory order issued in favour of the applicant.
Judges
Mathunzi
Legal Topics
Servitude Interpretation, Occupational Health and Safety, Electrical Machinery Regulations, Property Development, Declaratory Relief
Land and Property Administrative Law Servitude Interpretation Occupational Health and Safety Electrical Machinery Regulations Property Development Declaratory Relief

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Parties

Two Tyres Services (Pty) Ltd

Applicant

City of Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Declaratory Application / Judgment

Legal Issues

  1. 1 Whether clause 3 of the servitude prohibits the erection of permanent parking bays under the power lines.
  2. 2 Whether the placement of parking bays contravenes the Electrical Machinery Act or Occupational Health and Safety Act.
  3. 3 Whether the applicant is entitled to a declaratory order permitting the erection of parking bays within the servitude area.

Ratio Decidendi

The court found that clause 3 of the servitude prohibits the erection of buildings or structures within the servitude area, but does not classify uncovered parking bays as buildings or structures. The clause anticipates human activity, such as the placement of crops or rubbish, subject to height restrictions. The relevant safety regulations and standards require that any activity under the power lines must not exceed specified height limits, which the applicant's intended parking bays do not. The court held that the applicant's proposed use does not contravene the servitude, the Electrical Machinery Act, or the Occupational Health and Safety Act, provided the height restriction is...

Court Disposition

Application granted. Declaratory order issued in favour of the applicant.

Orders

  • The applicant is entitled to erect permanent parking bays within the servitude area subject to the height stated in clause 3 of the servitude at Portion 4[…] a Portion of portion 2[…] of the Farm 3[…], Registration Division J.R. Gauteng Province.
  • The respondent is to pay the costs of the application.