Club Twelve v Rand Water Board; Rand Water Board v Johannes and Another (141/2003) [2005] ZAFSHC 30 (3 March 2005)

Club Twelve v Rand Water Board; Rand Water Board v Johannes and Another (141/2003) [2005] ZAFSHC 30 (3 March 2005)

The court held that the plaintiff's particulars of claim do disclose a cause of action. Clause 2.2 of Annexure 'C' of the Guide Plan/Structure Plan is not ultra vires its empowering statute, as the Physical Planning Act expressly allows for the regulation of land use by specified authorities, including the plaintiff. The power to seek a demolition order is reasonably ancillary to the plaintiff's statutory function of regulating building operations below the flood line. The plaintiff need not allege special damages or membership of a protected class, as its statutory role is sufficient to confer standing. The interpretation advanced by the excipient would render the plaintiff powerless to...

Citation
[2005] ZAFSHC 30
Parties
Excipient: Club Twelve; Respondent: Rand Water Board; Plaintiff: Rand Water Board; First Defendant: Burger Izak Johannes; Second Defendant: Club Twelve (aka Klub 12)
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 March 2005
Case Number
141/2003
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception dismissed with costs, including costs of two counsel.
Judges
Kruger
Legal Topics
Demolition Order, Ultra Vires, Statutory Interdict, Physical Planning Act, Pleading Requirements
Land and Property Civil Procedure Demolition Order Ultra Vires Statutory Interdict Physical Planning Act Pleading Requirements

Case Brief

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Parties

Club Twelve

Excipient

Rand Water Board

Respondent

Rand Water Board

Plaintiff

Burger Izak Johannes

First Defendant

Club Twelve (aka Klub 12)

Second Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a cause of action entitling it to a demolition order.
  2. 2 Whether clause 2.2 of Annexure 'C' of the Guide Plan/Structure Plan is ultra vires its empowering statute.
  3. 3 Whether the plaintiff must allege special damages or membership of a protected class to obtain relief.

Ratio Decidendi

The court held that the plaintiff's particulars of claim do disclose a cause of action. Clause 2.2 of Annexure 'C' of the Guide Plan/Structure Plan is not ultra vires its empowering statute, as the Physical Planning Act expressly allows for the regulation of land use by specified authorities, including the plaintiff. The power to seek a demolition order is reasonably ancillary to the plaintiff's statutory function of regulating building operations below the flood line. The plaintiff need not allege special damages or membership of a protected class, as its statutory role is sufficient to confer standing. The interpretation advanced by the excipient would render the plaintiff powerless to...

Court Disposition

Exception dismissed with costs, including costs of two counsel.

Orders

  • The second defendant's exception against the plaintiff's particulars of claim is dismissed.
  • Costs are awarded against the second defendant, including the costs attendant upon the employment of two counsel.