Van Der Burgh v Eskom Holdings Soc Limited (64002/2012) [2013] ZAGPPHC 526 (11 October 2013)

Van Der Burgh v Eskom Holdings Soc Limited (64002/2012) [2013] ZAGPPHC 526 (11 October 2013)

The court found that Eskom had admitted to erecting H-pole structures and power lines outside the ambit of the servitude on the applicant's property, rendering their presence unlawful. The court held that the order of 2 May 2012 applied only to future conduct and did not retrospectively compel Eskom to remove structures already erected. However, the applicant, as owner, was entitled to vindicatory relief for removal of unlawful structures. The doctrine of lis alibi pendens did not preclude the present application, as the relief sought was based on breach of the court order and vindication of property rights, not the lawfulness of Eskom's decision to commence the project. Eskom's arguments...

Citation
[2013] ZAGPPHC 526
Parties
Applicant: Wayne van der Burgh; Respondent: Eskom Holdings SOC Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 October 2013
Case Number
64002/2012
Procedural Posture
Urgent Application / Final Judgment on Application to Compel Removal of Unlawful Infrastructure
Outcome
Application granted in part; declaratory and mandatory relief ordered against Eskom.
Judges
F Kathree-Setiloane
Legal Topics
Servitude Interpretation, Vindicatory Relief, Lis Alibi Pendens, Court Order Compliance, Unlawful Occupation
Land and Property Civil Procedure Servitude Interpretation Vindicatory Relief Lis Alibi Pendens Court Order Compliance Unlawful Occupation

Case Brief

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Parties

Wayne van der Burgh

Applicant

Eskom Holdings SOC Limited

Respondent

Procedural Posture

Urgent Application / Final Judgment on Application to Compel Removal of Unlawful Infrastructure

Legal Issues

  1. 1 Whether Eskom's H-pole structures and power lines were erected outside the ambit of the relevant servitude on the applicant's property.
  2. 2 Whether Eskom is in breach of the court order dated 2 May 2012 by failing to remove the unlawful infrastructure.
  3. 3 Whether the doctrine of lis alibi pendens precludes the present application.

Ratio Decidendi

The court found that Eskom had admitted to erecting H-pole structures and power lines outside the ambit of the servitude on the applicant's property, rendering their presence unlawful. The court held that the order of 2 May 2012 applied only to future conduct and did not retrospectively compel Eskom to remove structures already erected. However, the applicant, as owner, was entitled to vindicatory relief for removal of unlawful structures. The doctrine of lis alibi pendens did not preclude the present application, as the relief sought was based on breach of the court order and vindication of property rights, not the lawfulness of Eskom's decision to commence the project. Eskom's arguments...

Court Disposition

Application granted in part; declaratory and mandatory relief ordered against Eskom.

Orders

  • It is declared that the H-pole structures and power lines erected on the applicant's property fall outside the ambit of the relevant servitude as set out in Deed of Servitude No. 532/1955.
  • The respondent is ordered to remove the offending infrastructure and lines connected thereto from the applicant's property within thirty days of this order.