Whitfield; Ex Parte Dala; Ex Parte Wright; Ex Parte Libele Holdings Trust; Ex Parte Schaefer; Ex Parte Ross (2500/2015; 2373/2016; 3406/2016; 3654/2016; 3782/2016; 4044/2016; 4082/2016), Ex parte [2017] ZAECPEHC 62; [2017] 2 All SA 841 (ECP); 2017 (5) SA 161 (ECP) (28 March 2017)

Whitfield; Ex Parte Dala; Ex Parte Wright; Ex Parte Libele Holdings Trust; Ex Parte Schaefer; Ex Parte Ross (2500/2015; 2373/2016; 3406/2016; 3654/2016; 3782/2016; 4044/2016; 4082/2016), Ex parte [2017] ZAECPEHC 62; [2017] 2 All SA 841 (ECP); 2017 (5) SA 161 (ECP) (28 March 2017)

The High Court's jurisdiction to authorise the removal or amendment of restrictive conditions of title is not abrogated by the Spatial Planning and Land Use Management Act, 2013. However, the court may only grant such relief where all interested parties have expressly consented, and statutory bodies whose consent is required under relevant legislation have provided such consent. The Act establishes administrative procedures for removal of restrictive conditions, vesting authority in municipal planning tribunals and requiring compliance with prescribed procedures. Constructive consent may not be inferred where statutory mechanisms for consent exist. Applications failing to comply with...

Citation
[2017] ZAECPEHC 62
Parties
Applicant: Mark Gregory Whitfield; Applicant: Idris Dala; Applicant: Mark Christopher Wright; Applicant: Libele Holdings Trust; Applicant: Tania Schaeffer; Applicant: Andrew Errol Ross; Applicant: Pierre Bouwer Kitching N.O. and Others
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
28 March 2017
Case Number
2500/2015; 2373/2016; 3406/2016; 3654/2016; 3782/2016; 4044/2016; 4082/2016
Procedural Posture
Review Application / Full Court Review of Seven Consolidated Ex Parte Applications for Removal or Amendment of Restrictive Conditions of Title.
Outcome
Applications for removal or amendment of restrictive conditions were dismissed in cases where statutory consent or proper procedural compliance was lacking. Rules nisi were confirmed in cases where all interested parties consented and procedural requirements were met. In one matter, a rule nisi was issued for...
Judges
G G Goosen, E Revelas, J M Roberson
Legal Topics
Removal of Restrictive Conditions, Spatial Planning and Land Use Management Act, Municipal Planning Tribunal Jurisdiction, Deeds Registries Act, Constructive Consent, Title Deed Endorsement
Land and Property Administrative Law Civil Procedure Removal of Restrictive Conditions Spatial Planning and Land Use Management Act Municipal Planning Tribunal Jurisdiction Deeds Registries Act Constructive Consent +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Mark Gregory Whitfield

Applicant

Idris Dala

Applicant

Mark Christopher Wright

Applicant

Libele Holdings Trust

Applicant

Tania Schaeffer

Applicant

Andrew Errol Ross

Applicant

Pierre Bouwer Kitching N.O. and Others

Applicant

Procedural Posture

Review Application / Full Court Review of Seven Consolidated Ex Parte Applications for Removal or Amendment of Restrictive Conditions of Title.

Legal Issues

  1. 1 Does the High Court retain jurisdiction to authorise the removal or amendment of restrictive conditions of title after the commencement of the Spatial Planning and Land Use Management Act, 2013?
  2. 2 Is the consent of a municipal planning tribunal required before a court may authorise the removal of a restrictive condition?
  3. 3 What procedural requirements must be satisfied for a court to grant such relief, including the necessity of consent from all interested parties?

Ratio Decidendi

The High Court's jurisdiction to authorise the removal or amendment of restrictive conditions of title is not abrogated by the Spatial Planning and Land Use Management Act, 2013. However, the court may only grant such relief where all interested parties have expressly consented, and statutory bodies whose consent is required under relevant legislation have provided such consent. The Act establishes administrative procedures for removal of restrictive conditions, vesting authority in municipal planning tribunals and requiring compliance with prescribed procedures. Constructive consent may not be inferred where statutory mechanisms for consent exist. Applications failing to comply with...

Court Disposition

Applications for removal or amendment of restrictive conditions were dismissed in cases where statutory consent or proper procedural compliance was lacking. Rules nisi were confirmed in cases where all interested parties consented and procedural requirements were met. In one matter, a rule nisi was issued for...

Orders

  • Ex parte Whitfield: Application dismissed.
  • Ex parte Dala: Application dismissed.