South Africa Case Law

Wayne's Electrical & Refrigeration (Pty) Ltd and Others v The Enoch Mgijima Local Municipality and Others (675/2021)

Wayne's Electrical & Refrigeration (Pty) Ltd and Others v The Enoch Mgijima Local Municipality and Others (675/2021) [2022] ZAECMKHC 6 (26 April 2022)

Court

Eastern Cape High Court, Makhanda

Case number

675/2021

Judge

Mfenyana

The court found that the first respondent failed to comply with statutory requirements for notification and consideration of objections in the rezoning and removal of restrictive conditions. Notices were not properly served on affected landowners, denying them the opportunity to object. The first respondent did not furnish reasons for its decisions nor demonstrate that prescribed issues were considered. The objection received from Mr Coetzee was not addressed in the decision, and the approval of building plans deviated from the approved site development plan. The applicants were not required…

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• Promotion Of Administrative Justice Act
• Spatial Planning And Land Use Management Act
• Removal Of Restrictive Conditions
• Failure To Notify Interested Parties
• Municipal By Laws
• Review Of Administrative Action

VanHeerden v Appeal Authority IRO The Pixley Ka Seme District Municipality and Others (2849/2017)

VanHeerden v Appeal Authority IRO The Pixley Ka Seme District Municipality and Others (2849/2017) [2019] ZANCHC 39 (30 August 2019)

Court

Northern Cape High Court, Kimberley

Case number

2849/2017

Judges

Williams, O'Brien

The court found that the approval of the trust's building plans and the removal of restrictive title deed conditions were unlawful and irrational due to procedural defects and failure to comply with statutory requirements. The respondents did not provide adequate notice to all affected property owners as required by SPLUMA and the municipal by-law, thereby denying them the opportunity to object. The decisions of the municipal planning tribunal and appeal authority were not rationally connected to the information before them, nor were adequate reasons provided for their actions. The respondent…

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• Removal Of Restrictive Conditions
• Spatial Planning And Land Use Management Act
• Municipal Planning Tribunal
• Procedural Fairness
• Title Deed Restrictions
• Judicial Review

Artio Investments (Pty) Ltd (In Liquidation) and Others v Local Municipality of Madibeng and Others (39895/2017)

Artio Investments (Pty) Ltd (In Liquidation) and Others v Local Municipality of Madibeng and Others (39895/2017) [2018] ZAGPPHC 591 (28 May 2018)

Court

North Gauteng High Court, Pretoria

Case number

39895/2017

Judge

AC Sasson

The High Court held that SPLUMA governs the removal of restrictive title deed conditions and that Madibeng Municipality was the competent authority to decide the application.

• Promotion Of Administrative Justice Act
• Spatial Planning And Land Use Management Act
• Removal Of Restrictive Conditions
• Municipal Planning Tribunal
• Judicial Review
• Abuse Of Process

Horsell v Buffalo City Metropolitan Municipality and Another (EL1636/2016; ECD3936/2016)

Horsell v Buffalo City Metropolitan Municipality and Another (EL1636/2016; ECD3936/2016) [2018] ZAECELLC 5 (3 April 2018)

Court

Eastern Cape High Court, East London Local Court

Case number

EL1636/2016; ECD3936/2016

Judge

Hartle

The court granted a PAJA review, extended condonation time, and set aside a rezoning because a title-deed restriction remained effective.

• Promotion Of Administrative Justice Act
• Removal Of Restrictive Conditions
• Municipal Land Use Management
• Title Deed Restrictions
• Public Participation
• Spatial Planning

River Gate Properties (Pty) Ltd and Another v Asmal NO and Others (97167/16)

River Gate Properties (Pty) Ltd and Another v Asmal NO and Others (97167/16) [2018] ZAGPJHC 89 (29 March 2018)

Court

South Gauteng High Court, Johannesburg

Case number

97167/16

Judge

Molahlehi

The court found that the respondents erected thirty residential units on the property without approved building plans, in contravention of the Town Planning Scheme and restrictive title deed conditions. The preliminary approval relied upon by the respondents was invalid, as the official lacked authority and the municipality confirmed no valid plans existed at the relevant time. The doctrine of estoppel does not apply to organs of state where it would result in enforcement of illegality. The principle from Oudekraal and subsequent cases does not entrench the effectiveness of unlawful administr…

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• National Building Regulations And Building Standards Act
• Unlawful Structures
• Municipal Planning Scheme
• Removal Of Restrictive Conditions
• Estoppel Against State
• Demolition Order

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

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)

Court

Eastern Cape High Court, Port Elizabeth

Case number

2500/2015; 2373/2016; 3406/2016; 3654/2016; 3782/2016; 4044/2016; 4082/2016

Judges

G G Goosen, E Revelas, J M Roberson

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…

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• Removal Of Restrictive Conditions
• Spatial Planning And Land Use Management Act
• Municipal Planning Tribunal Jurisdiction
• Deeds Registries Act
• Constructive Consent
• Title Deed Endorsement

Mbombela Local Municipality v The Premier, Mpumalanga Province and Others (47407/2015)

Mbombela Local Municipality v The Premier, Mpumalanga Province and Others (47407/2015) [2016] ZAGPPHC 674 (28 July 2016)

Court

North Gauteng High Court, Pretoria

Case number

47407/2015

Judge

N Kollapen

The court found that Condition B(viii) is a restriction on the alienation of the property, not merely its use. The language and context of the condition, as well as the existence of other conditions specifically addressing use, support this interpretation. The Administrator's powers under Section 2 of the Removal of Restrictions Act 84 of 1967 do not extend to the removal of restrictions on alienation. Therefore, the removal of Condition B(viii) by Proclamation No. 80 of 1983 was ultra vires and unlawful. The delay in bringing the application was satisfactorily explained, as the applicant onl…

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• Removal Of Restrictive Conditions
• Ultra Vires
• Delay In Review
• Alienation Of Land

Choose Life Church NPC and Others v Chairman of the Strategic Land Development Tribunal of the City of Tshwane Metropolitan Municipality (71699/13)

Choose Life Church NPC and Others v Chairman of the Strategic Land Development Tribunal of the City of Tshwane Metropolitan Municipality (71699/13) [2014] ZAGPPHC 966 (11 December 2014)

Court

North Gauteng High Court, Pretoria

Case number

71699/13

Judge

Tolmay

The High Court dismissed a review of Menlyn Maine rezoning and title-condition removal, holding the applicants delayed unduly and had no condonation.

• Undue Delay
• Public Participation
• Review Of Administrative Action
• Removal Of Restrictive Conditions
• Town Planning Scheme
• Condonation

Pieterse and Another v Hartswater Hotels (Pty) Ltd and Another (1322/2012)

Pieterse and Another v Hartswater Hotels (Pty) Ltd and Another (1322/2012) [2013] ZANCHC 45 (13 December 2013)

Court

Northern Cape High Court, Kimberley

Case number

1322/2012

Judge

Phatshoane

The court found that the grounds for leave to appeal were a repetition of arguments already considered and rejected in the main judgment. There were no reasonable prospects of success on appeal. The applicants failed to demonstrate that the respondent was not entitled to apply for removal of restrictive conditions, as the Act permits any person with a real right to the property to do so. The argument regarding waiver was not persuasive, as delay in enforcing rights may constitute waiver. The rectification application was properly postponed pending the outcome of the removal application, as th…

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• Long Term Lease
• Removal Of Restrictive Conditions
• Waiver
• Estoppel
• Rectification Of Contract
• Leave To Appeal

Van Rensburg NO and Another v MEC for Housing, Local Government and Traditional Affairs, Eastern Cape province and Others (3399/2010, 3498/2010)

Van Rensburg NO and Another v MEC for Housing, Local Government and Traditional Affairs, Eastern Cape province and Others (3399/2010, 3498/2010) [2012] ZAECPEHC 82 (23 November 2012)

Court

Eastern Cape High Court, Port Elizabeth

Case number

3399/2010, 3498/2010

Judge

Revelas

The court found that the MEC's decision to remove the restrictive title deed conditions was materially influenced by errors of law, including the mistaken belief that zoning scheme regulations override title deed conditions. The restrictive conditions were praedial servitudes benefiting all erven in the area, and their removal constituted an arbitrary deprivation of property rights under section 25 of the Constitution. The MEC failed to properly consider relevant objections, relied on irrelevant considerations, and did not demonstrate that removal was desirable in the public interest or for t…

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• Promotion Of Administrative Justice Act
• Removal Of Restrictive Conditions
• Praedial Servitude
• Arbitrary Deprivation Of Property
• Zoning Scheme Conflict
• Functus Officio