Van Rensburg NO and Another v Equus Training and Consulting CC and Another (3649/06 & 1440/07) [2009] ZAECPEHC 50 (25 September 2009)

Van Rensburg NO and Another v Equus Training and Consulting CC and Another (3649/06 & 1440/07) [2009] ZAECPEHC 50 (25 September 2009)

The court found that the first respondent had constructed buildings in clear contravention of restrictive title conditions and had operated a guesthouse unlawfully. The removal applications contemplated in previous proceedings had been unsuccessful, and further applications under the Removal of Restrictive Conditions Act did not bar the applicants from seeking relief. The court held that no exceptional circumstances existed to justify refusing the interdict or demolition order. The respondent's reliance on completed construction and ongoing unlawful use could not defeat the enforcement of the law. The applicants were entitled to both the interdict and demolition orders to restore...

Citation
[2009] ZAECPEHC 50
Parties
Applicant: Wilma Emmerentia van Rensburg NO; Applicant: Philippus Stephanus van Rensburg; Respondent: Equus Training and Consulting CC; Respondent: Nelson Mandela Metropolitan Municipality
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
25 September 2009
Case Number
3649/06 & 1440/07
Procedural Posture
Civil Application / Final Judgment
Outcome
The court granted the interdict and demolition orders sought by the applicants in both cases.
Judges
Froneman
Legal Topics
Restrictive Title Conditions, Building Line Encroachment, Demolition Order, Interdict, Removal of Restrictive Conditions Act
Land and Property Civil Procedure Restrictive Title Conditions Building Line Encroachment Demolition Order Interdict Removal of Restrictive Conditions Act

Case Brief

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Parties

Wilma Emmerentia van Rensburg NO

Applicant

Philippus Stephanus van Rensburg

Applicant

Equus Training and Consulting CC

Respondent

Nelson Mandela Metropolitan Municipality

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the first respondent unlawfully constructed buildings in contravention of restrictive title conditions.
  2. 2 Whether the applicants are entitled to an interdict and demolition order against the first respondent.
  3. 3 Whether the court should exercise its discretion to refuse the interdict or demolition order due to alleged exceptional circumstances.

Ratio Decidendi

The court found that the first respondent had constructed buildings in clear contravention of restrictive title conditions and had operated a guesthouse unlawfully. The removal applications contemplated in previous proceedings had been unsuccessful, and further applications under the Removal of Restrictive Conditions Act did not bar the applicants from seeking relief. The court held that no exceptional circumstances existed to justify refusing the interdict or demolition order. The respondent's reliance on completed construction and ongoing unlawful use could not defeat the enforcement of the law. The applicants were entitled to both the interdict and demolition orders to restore...

Court Disposition

The court granted the interdict and demolition orders sought by the applicants in both cases.

Orders

  • In case no. 3649/2006: The first respondent is interdicted from continuing with any building activities on erf 102, Summerstrand, that encroach over the building line adjacent to the street frontage of the erf.
  • The first respondent must demolish all structures erected on erf 102, Summerstrand, which encroach over the building line.