About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2017
>>
[2017] ZAECPEHC 62
|
|
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) [2017] ZAECPEHC 62; [2017] 2 All SA 841 (ECP); 2017 (5) SA 161 (ECP) (28 March 2017)
IN THE
HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, PORT ELIZABETH
CASE
NO: 2500/2015
In the
matter of
EX
PARTE
MARK GREGORY WHITFIELD
CASE
NO: 2373/2016
In the
matter of
EX
PARTE
IDRIS DALA
CASE
NO: 3406/2016
In the
matter of
EX
PARTE
MARK CHRISTOPHER WRIGHT
CASE
NO: 3654/2016
In the
matter of
EX
PARTE
LIBELE HOLDINGS TRUST
CASE
NO: 3782/2016
In the
matter of
EX
PARTE
TANIA SCHAËFER
CASE
NO: 4044/2016
In the
matter of
EX
PARTE
ANDREW ERROL ROSS
CASE
NO: 4082/2016
In the
matter of
EX
PARTE
PIERRE BOUWER KITCHING N.O. AND OTHERS
In
re
the Removal of Restrictive Conditions of Title
Date
heard: 3 February 2017
Date
delivered: 28 March 2017
REPORTABLE
JUDGMENT
GOOSEN,
J.
1.
This judgment deals with seven similar
applications in which the applicants seek orders removing or amending
certain restrictive
conditions of title incorporated
in the title deeds of their respective
properties. In recent years a large number of cases of a similar
nature have served before
courts in this division. More recently,
when the matters which are the subject of this judgment came before
the court sitting at
Port Elizabeth, Eksteen J, who was called upon
to decide one of the matters was constrained to raise questions
regarding the exercise
of the court’s jurisdiction in relation
to the removal of a restrictive condition of title in the light of
the provisions
of the Spatial Planning and Land Use Management Act,
Act 16 of 2013 which came into effect on 1 July 2015. When that case
came
to be argued several other matters, of a similar nature, had
been enrolled for hearing. As a result Plasket J and Roberson J
referred
each of the matters to a full court of this division in
order that the issue of jurisdiction be determined.
[1]
The cases were enrolled for hearing on 3 February 2017.
2. At
the hearing of the matter it was established that publication of the
order referring the matters to this court had not been
carried into
effect by the office of the Registrar. Notwithstanding this the court
considered that, in the circumstances, it was
not debarred from
adjudicating the issues raised and accordingly proceeded to hear
submissions on behalf of the applicants. Ms
Bands
appeared on
behalf of five of the applicants and Ms
Potgieter
appeared on
behalf of one of the applicants. A further applicant abided the
decision and did not appoint counsel to appear. Each
application is
to be determined on its own merits. We have however prepared a single
judgment addressing the essential legal question
relating to
jurisdiction but will deal with each of the applications under
separate headings hereunder.
3.
We begin with a consideration of the ambit of
this court’s jurisdiction to remove or vary a restrictive
condition of title
as it has been articulated in a long line of cases
prior to the commencement of the new legislation. Thereafter
we
consider
whether the provisions of the Spatial Planning
and Land Use Management Act, Act 16 of 2013
[2]
(hereinafter to be referred to “the Spatial Planning Act”)
have in any manner altered either the ambit of the court’s
authority, or defined the circumstances in which it may be exercised.
We will then turn to the particular matters before
us.
4. It
has long been settled that the High Court has no inherent
jurisdiction to remove, vary or suspend a restrictive condition
of
title to land. The rationale lies in the nature of a restrictive
condition which, in its essence, is a form of contractual stipulation
in terms of which a transferor of land regulates the exercise of the
transferee’s dominium over the property. The condition
of
transfer of the land to the successor in title is endorsed upon the
title deeds and, by reason thereof, restricts the use to
which the
property may be put by succeeding successors in title. Such
conditions may also confer rights upon the holders of title
to other
properties by defining the relationship between portions of land or
by conferring upon such other lot holders a right
to enforce the
restrictive condition applicable to the property in question. In this
respect such conditions are in the nature
of servitudes. Given the
nature of these conditions of title and the rights that are thereby
conferred they cannot be removed,
varied or suspended except with the
consent of all of the parties whose rights and interests are
regulated thereby.
5.
In
Ex parte Gold
[3]
Ramsbottom, J expressed this principle in the
following terms:
A
vendor and a purchaser may, in their contract of sale, agree that the
user of the land sold is to be subject to a restrictive
condition.
The restriction can be registered against the title of the land
affected and when registered it constitutes a servitude.
If the
agreement was one between the vendors and the purchaser only, and was
not one which enures for the benefit of other land
or other persons,
the vendors alone can enforce it. If, in those circumstances, the
person who is entitled to enforce the servitude
and the person whose
land is burdened agree that the servitude should be cancelled, the
servitude is brought to an end. But since
it has been registered in
the Registrar of Deeds the intervention of the Court is required for
authority to be given for the alteration
of the register and the
title deeds of the property burdened. That is the simplest case.
Servitudes
of this kind can be created which enure for the benefit of other
parties, as is explained in
Alexander v. Johns
,
1912 A.D. 431
,
Dadoo Ltd. v. Krugersdorp Municipality
,
1920 A.D. 530
(see the
judgment of Wessels, J. at p. 532, where the principle is very
clearly stated),
Ex parte Johannesburg Diocesan Trustees
,
1936
T.P.D. 21
,
Eiffel Mansions (Pty.) Ltd. v. Cohen
,
1945 W.L.D.
200
, and numerous other cases. In such a case too, all the persons
who are entitled to enforce the servitude may consent to its
cancellation.
If they do so, the Court may give effect to their
consent by authorising the Registrar of Deeds to alter the register
and the applicant’s
title deeds.
6.
In the
Gold
matter
the court was concerned with a condition imposed in terms of the
Townships
and
Town
Planning
Ordinance
[4]
i.e.,
in
the
exercise
of
statutory
powers in the public interest. The court held that even in such
circumstances a court may grant a declarator authorising
the
Registrar of Deeds to remove,
amend
or vary the condition, provided that the administrative or statutory
body which imposed the condition in the public interest
consents
thereto.
[5]
7.
In
Ex parte Rovian Trust
(Pty) Ltd
[6]
the court described the ambit of the
authority exercised by a court in such matters as follows:
The Supreme Court, unlike the Administrator, has no
independent overriding power to delete or curtail a restrictive
condition in
a title deed on good cause shown. Rights, after all, are
created when restrictive conditions of this kind are imposed and
registered.
These rights are both contractual and servitudal in
character. The transferor of a property may agree with the transferee
that
the restrictive condition is to benefit him or his property
alone. He alone may then enforce it. Or he may agree separately with
the transferee of every lot that the restrictive condition will enure
to the benefit of every other lot holder in the township
concerned.
Each such agreement is constructed as a contract in favour of third
parties. The transferee, in terms of his own contract,
is a debtor
vis à vis
the transferor and every other lot holder. By
the same token, in respect of every other contract which the
transferor enters into
with every other lot-holder, he is considered
to have accepted the benefit and is therefore a creditor. Every
lot-holder thus becomes
contractually obliged to observe but also
entitled to enforce the restrictive conditions.
Upon registration these rights become real rights and
their operation is extended to the successors of the original
contracting
parties, regardless of whether they were aware of the
existence of these conditions or not. Every property is at once a
servient
and a dominant tenement. The third parties in whose favour
the condition was originally imposed, or their successors in title,
are qualified to enforce the terms of the servitude against the
offending owner of the servient tenement. Outsiders may perhaps
derive peripheral or incidental benefits from the operation of the
servitude, but they alone are entitled to enforce it. They,
par
excellence
, are also the “interested persons” who can
object if the deletion of the restrictive condition is sought.
The Court is not empowered to interfere with these
rights by deleting the restrictive conditions of its own accord. The
most the
Court can do is to declare that these rights, for some
extraneous reason, no longer exist. Any means by which rights are
extinguished
in law would qualify as a sufficient extraneous reason.
The Court exercises no discretion, it functions solely as a body of
enquiry.
One such extraneous reason may be that the right has
been terminated by bilateral consent; another is that it has been
waived unilaterally.
But of course, only the holder of the right can
agree to cancel or can waive it. If the right is enjoyed by more than
one person,
each holder must consent to its deletion before the Court
can make a declaration to that effect.
(emphasis
added)
8.
In that matter the court went on to explain the procedure adopted in
circumstances where practical considerations render it difficult
to
obtain the prior consent of all interested parties. In those
circumstances the “expedient of constructive consent”
is
achieved by issuing a rule
nisi
and requiring publication of
the proposed order, thereby creating a duty upon interested parties
to speak. In these circumstances,
silence may be regarded as being as
good as consent.
9.
With these principles in mind Leach J (as he then
was) set out the practice as it applies in this division in
Ex
parte Saiga Properties (Pty) Ltd
[7]
as follows:
The practice of issuing a rule
nisi
in a case
such as this has developed as a result of the difficulty of
identifying substantial numbers of interested parties, the
probable
impossibility of securing the express consent of all such parties and
the high cost of serving the application on all
of them, even if
identified. This would particularly be the case where, for example, a
property is situated in a township where
there are numerous lot
holders (which seems may well here be the case) – see, for
example,
Ex parte Krynauw
1948 (3) SA 622
(W) at 624 –
5, and
Ex parte Millsite Investment Co (Pty) Ltd
(
supra
).
But that practice does not obviate the necessity for steps to be
taken to obtain the consent of parties clearly interested and
readily
identifiable: for example, the owners of land immediately adjacent to
the property in question, the local authority or
the relevant
township board. Nor does it do away with the necessity of giving such
interested parties notice of the application
so as to enable them to
oppose the relief sought, if so inclined.
Furthermore, an applicant who seeks relief is not
entitled merely to approach this Court and obtain a rule
nisi
as
of right without setting out the relevant facts and explaining why it
is impossible or impractical to obtain the consent of other
interested parties. There is no reason why any person should expect
the Court through its process to obtain the consent of other
interested persons on his behalf when he could reasonably have
obtained such consent. An applicant should, therefore, at the very
least, put the Court into the picture as far as he can by providing
details of where the property is situated, the size of the
township,
who the other interested parties may be, whether he has been able to
identify such other parties, whether the attitude
of such parties to
the proposed deletion has been canvassed and, if so, their attitude
to the proposed variation or deletion of
conditions. The applicant
should also outline as far as possible the history of the property,
why the condition is now sought to
be removed were initially
registered against the title deeds, why such removal is desirable and
why other interested parties are
likely to consent thereto. After
all, a rule
nisi
is not without consequences and, in a case
such as this, should only be granted where,
prima facie
, final
relief will probably be granted.
10.
What these authorities demonstrate clearly, in my
view, is that the jurisdiction of the court to authorise a deletion,
variation
or suspension of a restrictive condition arises from the
fact
that interested
parties are vested with a common law right to waive, vary or abandon
their rights coupled with the
fact
of
the exercise of such right by the parties concerned. The court does
no more than enquire into and establish that such common
law right
has been properly exercised by the parties who are entitled to
exercise it. And, once it is satisfied in this regard,
it issues a
declarator which authorises the Registrar of Deeds to effect an
appropriate endorsement of the title deeds in accordance
with the
provisions of the Deeds Registries Act.
[8]
The only authority which is entitled to endorse any alteration upon a
registered deed is the Registrar whose authority is determined
by the
Deeds Registries Act.
11. The
question which arises in relation to the present matter is whether
the provisions of the Spatial Planning Act have in any
manner limited
the court’s authority to give effect to the exercise by
interested parties of their common law right to waive,
or amend, or
vary their rights. The answer to this question requires an outline of
the background to and a brief exposition of
the relevant provisions
of the Spatial Planning Act.
12.
The enactment of the Spatial Planning Act marks a
significant development in planning law in South Africa. Prior to its
enactment,
as the preamble records, land use management and spatial
planning was characterised by a multiplicity of laws
at different spheres of government originating
from a pre-1994 spatial planning regime based on racial inequality
and segregation.
The consequence for planning law was fragmentation,
duplication and unfair discrimination. Although previous legislative
efforts,
most
notably
in
the form of
the
Development Facilitation
Act
[9]
had sought to create
a
sustainable and constitutional framework for
spatial planning and land use planning these did not achieve the
alignment required
between the different spheres of government and
the integration of the multitude of land use planning laws which
applied.
13.
Following the Constitutional Court’s
confirmation of the order declaring chapters V and VI of the
Development Facilitation
Act invalid
[10]
,
the legislature undertook the task of preparing what has now been
enacted as the Spatial Planning Act. This Act takes the form
of
framework legislation which seeks to facilitate the establishment of
what the preamble describes as
“
a uniform, recognisable and comprehensive system
of spatial planning and land use management….throughout the
Republic, to
maintain economic unity, equal opportunity and equal
access to government services”
and
which
“…
promotes social and economic inclusion.”
14. It
sets out to define spatial planning functions at municipal,
provincial and national levels and to provide for the exercise
of
such functions by the appropriate spheres of government as envisaged
by the Constitution, thereby addressing the principal issue
giving
rise to the Constitutional Court’s ruling in the
Johannesburg
Metropolitan Municipality
matter.
15. The
Spatial Planning Act introduces important innovations in relation to
planning and land use management at municipal level.
The key
innovation involves the establishment of municipal planning
tribunals. These tribunals, which can also be established as
joint
tribunals for more than one municipality, are to consist of municipal
officials and independent experts. Elected councillors
are
specifically excluded.
16.
The Act sets out the objects to be achieved in
spatial planning and land use management
[11]
and
provides
a
set
of
principles
to
guide
the
adjudication
of
land
development
applications.
[12]
“ Land
development”
is
defined
by
the
Act
to
mean ‘the erection of buildings or
structures on land, or the change of use of land, including township
development, the subdivision
or consolidation of land or any
deviation from the land use or uses permitted in terms of an
applicable land use scheme’.
“Land use”, in turn,
is defined to mean ‘the purpose for which land is
or may be used lawfully in terms of a land use
scheme, existing scheme or in terms of any other authorisation,
permit or consent
issued by a competent authority, and includes any
conditions related to such land use purposes’. This latter
phrase of the
definition appears to include reference to registered
conditions of
title.
17. A
further important change brought about by the Spatial Planning Act
concerns the alignment of administrative decision-making
in relation
to the removal or variation of restrictive conditions of title with
that in relation to spatial planning and land use
management. Whereas
prior to the Spatial Planning Act spatial planning and land use
management at municipal level was separated
from the decision making
in relation to the removal of restrictive conditions, the Act now
locates the decision-making in relation
to restrictive conditions at
the level of the municipal sphere. The obvious consequence of this is
that decisions in relation to
restrictive conditions of title are now
to be taken by the same authority that is responsible for land use
management at municipal
level thereby ensuring that such decisions
accord with the broader objects of spatial planning and land use
management as determined
by a municipality in terms of the Spatial
Planning Act.
18.
Section 41 provides that:
(1) The Municipal Planning Tribunal, upon application in
the prescribed manner, may
(a) change the use, form or function of land; or
(b) remove, amend or suspend a restrictive condition.
(2) An application contemplated in subsection (1)
includes an application for –
(a) township establishment;
(b) the subdivision of land;
(c) the consolidation of different pieces of land;
(d) the amendment of a land use or town planning scheme,
except any change affecting the scheme regulations in terms of
section
25 (2) (a); or
(e) the removal, amendment or suspension of a
restrictive condition.
19.
Whether an application made to the Municipal Planning Tribunal for
the removal, amendment or suspension of a restrictive condition
of
title is a “land development application” (assuming that
any significance attaches to such designation) need not
be decided.
What is clear is that a Municipal Planning Tribunal may decide one or
more applications in relation to land including
an application for
the removal, amendment or suspension of a restrictive condition of
title.
20.
Section 42 provides the framework for adjudication of applications
made to a Municipal Planning Tribunal. Subsection (1) sets
out the
factors to be considered in the following terms:
(1) In considering in deciding an application a
Municipal Planning Tribunal must –
(a) be guided by the development principles set out in
Chapter 2;
(b) make a decision which is consistent with norms and
standards, measures designed to protect and promote the sustainable
use of
agricultural land, national and provincial government policies
and the municipal spatial development framework; and
(c) take into account –
(i) the public interest;
(ii) the constitutional transformation imperatives and
the related duties of the State;
(iii) the facts and circumstances relevant to the
application;
(iv) the respective rights and obligations of all those
affected;
(v) the state and impact of engineering services, social
infrastructure and open space requirements; and
(vi) any factors that may be prescribed, including
timeframes for making decisions.
21. The
section further provides that an application may be approved in whole
or in part, or be rejected. There is no requirement
that parties
whose rights are affected by the removal or variation of a
restrictive condition of title must consent to such removal
or
variation.
22.
What this suggests is that the basis upon which an application to
remove a restrictive condition is to be decided is, in essence,
the
same as that which applies in relation to any other land development
application. The Act however, deals further with restrictive
conditions of title.
23.
Section 45 (6) states that:
Where a condition of title, a condition of establishment
of a township or an existing scheme provides for a purpose with the
consent
or approval of the administrator, a Premier, the townships
board, or any controlling authority, such consent may be granted by
the municipality, and such a reference to the administrator, a
Premier, the townships board or controlling authority is deemed to
be
a reference to the municipality.
24.
Section 47 further provides that:
(1) A restrictive condition may, with the approval of a
Municipal Planning Tribunal and in the prescribed manner, be removed,
amended
or suspended.
(2) a removal, amendment or suspension of a restrictive
condition contemplated in subsection (1) must, in the absence of the
contemplated
written consent, be effected –
(a)
in accordance with section 25 of the Constitution and this Act;
(b)
with due regard to the respective rights of all those effect affected
and to the public interest; and
(c)
in the prescribed manner,
if such removal, amendment or suspension will deprive
any person of property as contemplated in section 25 of the
constitution.
(3) A Municipal Planning Tribunal considering an
application to remove, amend or suspend a restrictive condition is
not liable to
compensate any person for any loss arising from or
related to a decision made in good faith and in terms of this Act to
remove,
amend or suspend a restrictive condition.
(4) Notice of an application to remove, amend or suspend
a restrictive condition, which operates for the benefit of the State
must
be in writing and given in the prescribed manner to the organ of
state, which is responsible for the administration of the law or
the
performance of the function to which such condition relates.
(5) An applicant at whose instance, a restrictive
condition is removed, amended or suspended in terms of this Act,
must, within
the prescribed period, and in the prescribed manner,
apply to the Registrar of Deeds concerned for the appropriate
recording of
such removal, amendment or suspension, and the Registrar
of Deeds must, in the prescribed manner record such removal,
amendment
or suspension.
25.
Before turning to the interpretation of the
relevant provisions it is appropriate to record that the “prescribed
manner”
of an application for the removal of restrictive
condition is set out, in framework form, in the Spatial Planning and
Land Use
Management Regulations.
[13]
Chapter 3 of the Regulations deals with land development and land use
applications. Regulation 14 requires a municipality to determine
the
manner and format of applications, the fees payable and
the timeframes applicable to each component of an
application. Regulation 15 provides that in the event that a
municipality does
not designate a municipal official to decide
certain land development and land use applications (as may occur in
terms of s 35
(2) of the Spatial Planning Act), then all applications
are to be decided by the Municipal Planning Tribunal. The Regulation
further
provides for the designation of categories of land
development and land use applications by a municipality. Schedule 5
to the Regulations
provides for standard categories of land
development and land use applications. A Category 1 application is
one for “any
consent or approval required in terms of a
condition of title, a condition of establishment of a township or
condition of an existing
scheme or land use scheme”. A Category
2 application includes an application for “the removal,
amendment or suspension
of a restrictive condition of title relating
to the density of residential development on a specific erf where the
residential
density is regulated by a land use scheme in operation”.
The Schedule further provides that all Category 1 applications and
all opposed Category 2 applications are to be decided by the Tribunal
and that unopposed Category 2 applications are to be decided
by the
designated municipal official. It must be emphasised that this
categorisation serves as a guide to the determination of
categories
by a
municipality. However
what the guide points to is that applications relating to the
removal, amendment or suspension of restrictive
conditions of title
are to be processed in accordance with the set of procedures
determined by a municipality or as regulated and
are to be
adjudicated in the context of land use planning and management
principles set out in the Spatial Planning Act. The removal,
amendment or suspension of restrictive conditions of title must
accordingly align with the broader objects and principles set out
in
the Act.
26. The
Spatial Planning Act does not deal with the removal, variation or
suspension of a restrictive condition pursuant to a Court
order to
such effect. There is accordingly no provision which stipulates the
circumstances in which such Court order may be made.
This, in my
view, is not surprising given the nature and ambit of the Court’s
authority as set out above.
27.
The now repealed Removal of Restrictions Act
[14]
also did not address the Court’s authority to issue a
declarator authorizing the Registrar of Deeds to give effect to the
consent of parties whose rights were regulated by a restrictive
condition of title. The Court’s authority was in no way
constrained by the statutory regime regulating the circumstances in
and procedure by which a restrictive condition could be removed
or
varied or suspended in terms of the Removal of Restrictions
Act.
28. The
Spatial Planning Act establishes a new administrative procedure for
the removal of a restrictive condition. It does so by
placing the
authority in the hands of the Municipal Planning Tribunal or
designated municipal official as the case may be. It further
seeks to
establish criteria for the exercise of such authority which are
consonant with the criteria to be applied in relation
to spatial
planning and land use management decisions generally.
29. The
fact that the Spatial Planning Act does not specifically address the
ambit of Court’s authority, in my view, militates
against a
finding that the Court’s authority is in any manner altered. If
the legislature had intended to exclude a Court
from issuing a
declaratory to the effect that the rights conferred by a registered
condition of title have been extinguished, either
by bilateral
consent or by unilateral waiver (cf.
Ex parte Rovian Trust (supra)
at 213C), then it would undoubtedly have done so in express
terms.
30.
Having said this it is nevertheless necessary to deal with the
meaning and effect of section 47 of the Spatial Planning Act.
Subsection (1) states that a restrictive condition may be removed or
amended
with
the consent
of the Municipal
Planning Tribunal. In subsection (2) it is provided that a removal,
amendment or suspension of a restrictive condition
must,
in
the
absence
of
the
contemplated
consent
, be effected in
accordance,
inter alia,
with section 25 of the Constitution.
It is not immediately apparent to what the phrase ‘contemplated
consent’ refers.
If it refers to the consent of the Municipal
Planning Tribunal to which reference is made in subsection (1) then
it is difficult
to conceive of how and upon whose authority a
restrictive condition could be removed or amended in such
circumstances, since there
is no statutory body other than a
Municipal Planning Tribunal which has the authority to remove, amend
or suspend a restrictive
condition. The authority to remove, amend or
suspend a restrictive condition is conferred upon a Municipal
Planning Tribunal by
s 41(1).
31.
Section 47 must be read as the statutory framework regulating the
removal of restrictive conditions. A registered deed may only
be
endorsed by the Registrar of Deeds acting in accordance with the
Deeds Act and in terms of any other law authorizing such act.
The
Deeds Act makes no specific provision for the removal, amendment or
suspension of a registered restrictive condition of title.
The now
repealed Removal of Restrictions Act provided, in section 2, for the
alteration, suspension or removal of restrictive conditions
upon
certain criteria by the Administrator (later Premier of a province)
by publication of a notice to that effect in a Provincial
Gazette.
Section 6 of that Act in turn placed upon the Registrar of Deeds the
obligation to effect endorsements upon the relevant
deeds as soon as
possible after publication of the notice. Section 47(5) of the
Spatial Planning Act now provides that an applicant
for the removal
of a restrictive condition must, within a prescribed period and in
accordance with a prescribed manner, apply to
the Registrar of Deeds
for the ‘appropriate recording of such removal, amendment or
suspension’ of the restrictive
condition. No doubt the
Registrar will only act upon such application where the Municipal
Planning Tribunal has consented as contemplated
in Section 47(1).
This subsection therefor is to be read as the statutory basis upon
which effect may be given to the removal,
amendment or suspension of
restrictive conditions.
32. We
need not decide what meaning to attach to the phrase ‘contemplated
consent’ in s 47(2) for present purposes.
That is so because a
Court has no authority to grant a declaratory order relating to the
removal of a restrictive condition of
title in the absence of the
consent of an interested party. In deciding whether or not to grant
such declaratory relief it exercises
no discretion and acts as a
court of enquiry. Section 47(2) finds no application in matters such
as those with which this judgment
is concerned.
33. The
only question is whether s 47 (1) precludes a Court from authorizing
the removal of a restrictive condition unless the Municipal
Planning
Tribunal has consented thereto. It was argued that the use of the
word ‘may’ in the subsection is to be understood
as being
discretionary rather than peremptory in nature and that the
subsection is to be understood as leaving – unaltered
- the
Court’s authority to authorise the removal of a restrictive
condition. The argument, it seems to me, is misdirected.
The issue is
not whether restrictive conditions may only be removed, amended or
suspended by a Municipal Planning Tribunal. Rather
it is whether the
consent of a Municipal Planning Tribunal must be obtained before a
Court will grant a declarator authorizing
such removal.
34.
Section 47 must be read in conjunction with s 41. The latter section
confers upon a municipal planning tribunal the power to
remove, amend
or suspend a restrictive condition of title. The former section
regulates that power. Section 47, it should be said,
is rather
clumsily formulated. Subsection (1) refers to the consent of a
municipal planning tribunal whereas it has the power to
remove a
restrictive condition in terms of s 41. Subsection (2) then
references an application as contemplated by subsection (1)
and,
furthermore, refers to the absence of ‘the contemplated written
consent’. At first blush this appears to refer
to the consent
of the municipal planning tribunal dealt with in subsection (1) but
on closer reading that cannot be so, since it
is the municipal
planning tribunal which has the power to remove a restrictive
condition and it can hardly do so if it does not
consent thereto.
35.
If section 47 is read as regulating the power to remove a restrictive
condition
by
a municipal planning tribunal
, then
the section makes sense. Seen in this light subsection (1) confirms
that a restrictive condition may be removed with the
consent of a
municipal planning tribunal whereas subsection (2) provides that the
provisions of section 25 of the Constitution
apply in circumstances
where the removal will have the effect of depriving a person of a
right to property. The reference to the
absence of ‘contemplated
consent’ can only refer to the consent of a party whose rights
are or may be affected by the
removal of a restrictive condition.
36.
Section 47(2) can have no application in circumstances where a Court
is moved to authorise the removal of a restrictive condition.
That is
so because a Court has no power to grant such order in the absence of
consent of all interested parties. The Court, as
has already been
pointed out, serves merely as a court of enquiry to establish whether
all interested parties have by mutual agreement
or unilateral waiver
abandoned their rights. If it is satisfied that this is so it may
issue a declaratory to that effect.
37. Is
section 47(1) to be understood as requiring the consent of a
municipal planning tribunal in all circumstances where a court
is
moved to authorise the removal of a restrictive condition? In our
view, no. Section 47(1) says no more than that a restrictive
condition may, pursuant to the Spatial Planning Act, be removed with
the consent of a municipal planning tribunal. Such consent
is to be
obtained in the prescribed manner, i.e. by way of an application made
to the municipal planning tribunal and is to be
granted subject to ss
42 and 47(2).
38.
Section 47 does not deal with the circumstances
in which a Court may grant an order authorizing the removal of a
restrictive condition.
The Act does not confer upon a municipal
planning tribunal a general power in relation to restrictive
conditions which it may exercise
of its own volition. It may only
exercise its powers upon application made by parties who are
specified in terms of section 45,
which includes an owner of the land
concerned. The fact that a municipal planning tribunal has the power
to remove a restrictive
condition upon application does not mean that
it has
any legal
interest
in
the removal of a particular restrictive condition. Thus in the
simplest of cases to which Ramsbottom J referred in
Ex
parte Gold
[15]
where a restrictive condition in the
form of a servitude enures solely for the benefit of the transferor
and transferee, it
is difficult to conceive that, in addition to the
consent
of both
of those parties,
the
consent
of a municipal
planning
tribunal
would also be required before a Court would
authorise the removal of the restrictive condition. There can of
course be no doubt
that the parties to such a restrictive condition
would be entitled to make application to a municipal planning
tribunal to remove
the restrictive condition just as they would be
entitled to seek a Court order to similar effect.
39.
There is a further consideration. Section 45(6) provides that where a
condition of title provides for a purpose with the consent
of the
Administrator, Premier, townships board or controlling authority then
such consent may be granted by the municipality concerned.
The
Regulations make provision for the procedure by which such consent of
the municipality is to be obtained. They provide, in
Schedule 5, for
certain standard categories of land development and land use
applications. An application for consent or approval
which may be
required in terms of a condition of title is defined as a category 1
application which must be referred to a municipal
planning tribunal.
The stipulation of a procedure to be followed does not alter the fact
that the power to consent vests in the
municipality.
40. In
summary therefore: a Court’s power to grant an order
authorizing the removal or amendment of a restrictive condition
of
title upon proof that all interested parties have consented thereto
is not affected by the provisions of the Spatial Planning
Act. In
each instance it will be necessary to establish that all interested
parties have indeed consented thereto.
41.
We turn now to deal with each of the applications before us in turn.
Ex
parte Whitfield: Case No 2500/2015
42.
Following the launch of the application on 30 June 2015 it was
postponed on several occasions. Ultimately on 29 March 2016 Cossie
AJ
granted a rule nisi returnable on 24 May 2016. On the return day the
matter was again postponed and the rule was extended. On
6 September
2016 Eksteen J made the order referred to in the introduction to this
judgment. On that occasion the matter was removed
from the roll. As a
consequence the
rule nisi
lapsed. It appears from the court
file that the matter was enrolled on 22 September when the rule was
reinstated and the matter
was then postponed to the date when these
matters were heard by this Court. It therefore falls to this Court to
consider whether
to confirm the rule nisi.
43. The
restrictive condition sought to be removed is contained in Clause F2
of the title deed and reads as follows:
F. SUBJECT FURTHER to the following conditions contained
in Deed of Transfer T3597/1968 imposed by the Controlling Authority
in
terms of Section 11(6) of Act 21 / 1940:
1. …….
2. Not more than one dwelling house together with such
outbuildings as are ordinarily required to be used in connection
therewith
shall be erected on the land except with the written
approval of the Controlling Authority as defined in Act 21/1940.
44. The
reason for seeking the removal of the restrictive condition is to
bring the permitted use of the property, which is described
as
agricultural property, in line with fact, inasmuch as more than one
dwelling has been erected on the property. In this regard
the
applicants state that the second dwelling was erected at a stage
“when it was not known that building plan approval need
be
sought”.
45.
Leaving aside for the moment the reasons as articulated by the
applicants, the further allegations made by the applicants bear
repeating.
13.[The applicants are] unable to state with any
authority the reason for the imposition of the aforesaid restrictive
condition.
However, as is apparent from the Title Deed in question,
the restrictive condition dates back to a time when there was no
zoning
scheme to regulate town planning and town planning was
accordingly regulated by way of conditions contained in Title Deeds.
14. It is further apparent from the Title Deed that the
condition is not registered in anyone’s favour but is instead
registered
against the property.
15. Since the imposition of the restrictive condition,
and more particularly in the last number of years, numerous property
owners
in the Farm Port Elizabeth area have undertaken substantial
renovations to their properties, including the erection of second
residential
dwellings, and accordingly same will not be out of
character for the area in which the property is located.
16. In the circumstances, I respectfully submit that
there is no particular necessity for the retention of the restrictive
conditions
on the Title Deed for the property.
46.
It is necessary to make two comments about these
allegations. Firstly they reflect
a
widespread tendency, in applications of this nature, to assume that
restrictive conditions are quaint, somewhat old fashioned
devices
which preclude ‘modern’ approaches to land development
and that they serve little or no purpose. On this basis
such
conditions can, without more, be deleted. This assumption is of
course entirely without substance or merit. As was stated
in
Van
Rensburg and Another NNO
v
Naidoo
and
Others
NNO;
Naidoo
and
Others
NNO
v
Van
Rensburg
NO
and Others
[16]
,
Restrictive conditions of the kind in question enure for
the benefit of all other erven in a township, unless there are
indications
to the contrary. They are inserted for the public benefit
and, in general terms, to preserve the essential character of a
township.
In this regard see
Malan
at 38B-C and 39F-G. If
landowners across the length and breadth of South Africa, who
presently enjoy the benefits of restrictive
conditions, were to be
told that their rights, flowing from these conditions, could be
removed at the whim of a repository of power,
without hearing them or
providing an opportunity for them to object, they would rightly be in
a state of shock.
47. The
second comment relates to the paucity of consideration given to the
particular condition sought to be removed. The bald
assertion is made
that the applicants do not know why the condition was inserted. Yet
there is no reference in the founding affidavit
to the relevant
legislation referred to in the condition itself.
48. The
relevant legislation is the Advertising on roads and Ribbon
Development Act, Act 21 of 1940. It remains extant on the statute
book. Its purpose is twofold, as its long title suggests, namely to
regulate the display of advertisements outside urban areas
at places
visible from public roads and, inter alia, to regulate the erection,
construction or laying of structures near certain
pubic roads.
49.
Section 11 of that Act extensively regulates the restrictions which
may be imposed in relation to the establishment or extension
of
townships situated wholly or partially outside of an urban area. The
area where the property in question is situated is such
an area.
50. The
Act also defines a ‘controlling authority’ which, in
relation to a road is defined to mean “the administrator
concerned: Provided that in relation to any road within the region of
a Regional Services Council in the province of the Eastern
Cape ….
The said Council shall be the controlling authority….”.
51. The
Regional Services Councils no longer exist. Their functions have been
taken over by District Councils or by Metropolitan
Councils in
respect of property which falls within the jurisdiction of such a
Metropolitan Council.
52.
There are no allegations in the papers which deal with this aspect.
There are also no allegations which address the question
as to what
steps have been taken to obtain the consent of the controlling
authority.
53.
Section 11 (6), (7) and (8) of Act 21 of 1940 makes it clear that the
condition may only be removed or cancelled with the consent
of the
controlling authority.
54.
This is one of those instances referred to in
Ex Parte Gold
where
the consent of the statutory body is a necessary jurisdictional fact
for the exercise of the court’s authority to authorise
the
removal of a restrictive condition.
55. It
bears mentioning that the provisions of s 45(6) of the Spatial
Planning Act may well apply, thereby requiring that consent
be
obtained from the municipality (in this case the Nelson Mandela Bay
municipality). In that event the provisions of the Spatial
Planning
Act regulate the mechanism by which such consent is to be obtained.
This requires that an application be made to the municipal
planning
tribunal.
56.
Whilst it is accepted that the application papers have been served
upon the municipality and that publication of the
rule nisi
has
occurred, I do not consider that the expedient of ‘constructive
consent’ can be applied in circumstances where the
consent of a
statutory body is specifically required and where there exists a
legislated mechanism by which such consent is to
be obtained.
57.
In
Rovian Trust
Nienaber J expressed the view that,
I am in some doubts as to whether the notion of
constructive consent can be stretched to the point where the
Administrator is believed
by the applicant to have consented by
silence when in another context he expressly informed the applicant
that he was unable to
express consent until the matter had been
advertised and aired and all interested parties had been afforded an
opportunity of objecting.
[17]
58.
This view was expressed in the context of the applicant in that
matter having first sought the consent of the Administrator
and being
told by the Administrator that his consent could not be given upon
consideration of an application to remove the restrictive
condition.
It was argued in that matter that the particular condition did not
enure to the benefit of other lot-holders and that
the Administrator
and local authority should be taken to have consented by reason of
their failure to oppose the application made
to court. The case was
decided on the basis that the restrictive condition did enure to the
benefit of other lot-holders and that
the lack of consent of other
lot-holders was fatal to the application.
59.
The remarks of Nienaber J
nevertheless suggest that where the process of
obtaining the
consent
of
the
municipality
requires
adherence
to
a
regulated
application procedure it is doubtful that
constructive consent can be inferred from mere failure to oppose. It
is not necessary
however to decide the matter. As already indicated
the applicant does not address the question of obtaining the consent
of the
‘controlling authority’ in any manner at all. In
this respect the application is defective.
As
pointed
out
in
Ex
parte
Saiga
[18]
an
applicant
is
required
to
set
out relevant facts and to explain why it is
impossible or impractical to obtain the consent of interested
parties.
60. In
the circumstances the
rule nisi
cannot be confirmed. The
application falls to be dismissed. The applicants are possessed of
statutory mechanisms and procedures
by which to secure that which
they seek in this application. Those mechanisms, in my view, permit
the appropriate and relevant
authorities to take into account the
broad set of criteria now provided in the applicable legislation and
to decide such application
having full and proper regard to the
public interest where the consent of all affected parties cannot be
or has not been obtained.
Ex
parte Dala: Case No. 2373/2016
61. The
applicant seeks the removal of three conditions of title registered
against the title deed of a residential property situated
in Mount
Croix, Port Elizabeth. The first concerns a restriction that not more
than one dwelling together with the necessary outbuildings
shall be
erected on the property. The second concerns a restriction relating
to the area of the land upon which buildings may be
erected and the
third concerns an encroachment restriction prohibiting the erection
of a building or part of a building within
twenty feet of the street
line which forms the boundary of the erf.
62. The
application however suffers from a material defect. The application
proceeds upon the basis that the administrative procedure
provided
for in the Removal of Restrictions Act is unduly cumbersome and that
it will occasion the applicant prejudice because
of undue delay. No
reference is made to the fact that that legislation has been repealed
and that the authority to deal with land
use applications, including
the removal of restrictive conditions now vests in the municipal
planning tribunal.
63. The
application is motivated on the basis that the removal of the
restrictive conditions is necessary because the applicant
wishes to
erect a further dwelling on the property. No allegations are set out
in the papers to justify the removal of the second
and third
restrictive conditions.
64. The
provisions of the Spatial Planning Act are plainly applicable. That
Act now confers the authority to make decisions relating
to the
zoning of land, its subdivision and the removal of restrictions upon
a municipal planning tribunal. In circumstances where
a land use
application, for example to obtain authorisation to erect a second
dwelling, will be required to be made to the municipal
planning
tribunal, no real reason exits to engage the Courts in order to have
a restrictive condition of title removed. Such an
application can be
determined by the municipal planning tribunal simultaneously with
other land use applications made in respect
of the subject property.
65. In
this instance, it appears that the restriction relating to a single
residential dwelling is one that enures for the benefit
of all
lot-holders in the township and was one introduced in the public
interest. The Spatial Planning Act seeks, as has been explained
hereinabove, to facilitate integrated administrative decision-making
in relation to land development in order to achieve the objects
of
the Act. In these circumstances, particularly where such land
development issues will of necessity have to be considered by
the
municipal planning tribunal in relation to the property concerned,
this Court will be astute not to interfere with the proper
exercise
of those powers by authorizing the deletion of a restrictive
condition based on the consent of a limited number of interested
parties and the constructive consent of others.
66.
In the circumstances it follows that the application must be refused.
Ex
parte Kitching NO: Case No 4082/2016
67. In
this matter similar considerations to those raised in respect of Case
no 2373/2016 apply. Here too the applicants seek the
removal of a
restrictive condition in order to proceed with a land development
application by which they seek to obtain the rezoning
of the property
from residential use to business use.
68. The
applicant states that it was advised by a municipal official that it
would first be necessary to have the restrictive condition
of title,
which restricts the use to that of a single residential dwelling,
removed before the applicants can proceed with their
rezoning
application.
69.
This advice is plainly wrong. The provisions of the Spatial Planning
Act now provide for a range of land use and land development
applications to be considered by the relevant municipal planning
tribunal. There is no suggestion in that Act that such applications
cannot be dealt with simultaneously by a municipal planning tribunal.
Indeed the contrary appears to be contemplated since all
such
applications are to be adjudicated on the basis of the principles
enumerated in Chapter 2 of the Act and the factors set out
in s 42.
70. The
applicants also point out that it seeks the removal of the
restrictive condition in order to bring the use of the property
in
line with its current use, namely for business purposes. That
allegation does not avail the applicants. The removal of a
restrictive
condition serves merely to remove an impediment to use it
does not confer any use rights upon the owner of the property. Such
use
rights are conferred by approval of a defined land use pursuant
to a land development application made in terms of the Spatial
Planning Act. Accordingly the present application will not
‘regularize’ the use of the property.
71. For
the reasons set out in relation to case no 2373/2016 this application
must also be refused.
Ex
parte Tania Schaeffer: Case No 3782/2016
72.
This application is brought by and in the name of the attorney acting
for the Bosch Property Trust which is the registered owner
of erf 24
Mill Park, Port Elizabeth. The applicant claims
locus standi
on
the basis that the Trust has authorised the firm of attorneys by
resolution to commence an application for the removal of a
restrictive condition of title applicable to the Trust’s
property.
73.
Reliance is placed upon,
inter alia
, clause 9 of the Trust
Deed which provides that:
Subject
to giving effect to the terms and conditions of this Trust Deed, the
Trustees shall in administering the Trust, adopt such
procedures and
take such administrative steps as shall from time be deemed necessary
or desireable, including the appointment of
any person/s (including
and Trustee/s) to render any services or assistance as the Trustees
consider necessary for the purposes
and administration of the Trust
for such remuneration as the Trustees may from time to time
determine.
74.
This provision of the Trust Deed provides no support for the claim to
locus standi
made by the attorney. To the contrary it serves
merely to confirm that the Trustees are entitled to appoint persons
to render services
to the Trust. The appointment of an attorney to
render professional services to a party does not confer upon the
attorney
locus standi
to litigate in the attorney’s own
name nor even in a representative capacity.
75. The
other provisions of the Trust Deed upon which reliance is placed also
do not assist. Clause 30 confirms that the Trustees
have the power to
obtain such legal and other professional advice as may be required
and Clause 32 confers upon the Trustees the
power to institute or
defend legal proceedings. The fact that the Trustees may have taken a
resolution authorizing the firm of
attorneys too act in the matter
also does not assist.
76. The
resolution provides that Schaeffer Attorneys commence a High Court
Application for the removal of the restrictive condition.
It also
states that the attorneys are ‘mandated’ to launch the
application. The fact that Tania Schaeffer is authorised
to sign
documents to give effect to the resolution can in no way be construed
to mean that the attorney acquires
locus standi
to institute
proceedings in her own name.
77. We
were not referred to any authority, nor am I aware of any, which
suggest that in circumstances such as these an attorney
who is
instructed to bring an application on behalf of a Trust acquires
thereby the right to institute proceedings in its own name.
In these
circumstances the application is fatally defective and falls to be
dismissed.
Ex
parte Wright: Case No 3406/2016
78. In
this application a
rule nisi
was issued by Chetty J on 4
October 2016. On the return date, 25 October 2016, Lowe j postponed
the matter and extended the rule
too allow for service of a notice of
application for the removal of a restrictive condition to be
delivered on all property owners
residing in the Fernglen Township.
79. On
the further return date the rule was extended to 22 November 2016 and
thereafter to the date of hearing before the full Court.
80.
The rue
nisi
envisaged the deletion of the restrictions set
out in Clauses B. 6 (b), (d) and C. (1), (2), (3), (4) and (5) of the
Title Deed.
The service of the notice upon all property owners in the
Fernglen Township gave rise to 10 letters of objection being received
by the applicant’s attorneys. In consequence of these
objections the applicant’s attorney engaged in discussions with
each of the objectors. The objections raised by them, as is indicated
in the papers, relate to the removal of certain restrictions
only. In
consequence of this the applicant undertook to abandon its
application for the removal of those restrictions to which
objection
was raised. The objectors then indicated their consent. This is
confirmed by affidavit filed on behalf of the applicant.
81. The
applicant only seeks the confirmation of the rule
nisi
in
respect of the deletion of Clauses B. 6 (d), and C. (2) and (3), to
which the interested parties have consented. These Clauses
read as
follows:
B.6(d) No building or structure or any portion thereof,
except boundary walls and fences shall be erected nearer than 7,87
metres
to the street line which forms a boundary of this erf, nor
within 3,15 metres of the rear or 1,57 metres of the lateral boundary
common to any adjoining erf, provided that, with the consent of the
local authority an outbuilding not exceeding 3,05metres in
height,
measured from the floor to the wall plate and no portion of which;
will be used for human habitation, may be erected within
the
prescribed rear space. On consolidation of any two or more erven this
condition shall apply to the consolidated area as one
erf.
C. (2) That no building shall be erected upon the Erf
until the plans and specifications have been submitted to the Company
and
the said Company or duly qualified architect appointed by the
Company for that purpose, has approved of the siting, elevation plans
and specifications of such building. The decision of the Company
and/or Company’s architect shall be final and binding
notwithstanding
the value of the property to be erected. The walls of
any such building shall be of brick and/or stone and/or concrete and
the
roof of tiles, thatch, slate, shingles or other material approved
by the Company.
C. (3) That every erf shall on its street boundary or
boundaries be enclosed by a wall of brick, stone and /or concrete of
a design
approved by the Company architect.
82. In
the light of the abandonment of the relief sought I relation to the
other restrictive conditions in the Title Deed no further
impediment
to the confirmation of the
rule nisi
, suitably amended to
reflect the consent to the order, exists and accordingly the rule
will be confirmed to that extent.
Ex
parte Libele Holdings Trust: Case No. 3654/2016
83. In
this application a
rule nisi
was issued on 25 October 2016.
That rule was duly extended on 15 November 2016 to 22 November 2016
whereafter it was extended to
make provision for the hearing of these
matters by a full court.
84. The
requirements for service and publication of the Rule have been
complied with as have the provisions of s 97 of the Deeds
Registries
Act. There is, in this matter, no impediment to the granting of a
final order.
Ex
parte Ross: Case No 4044/2016
85. The
applicant seeks an order for the removal of three restrictive
conditions contained in Deed of Transfer No. T60312/2016 in
respect
of Erf 263, Sunridge Park, Port Elizabeth. The conditions sought to
be removed read as follows:
B.5 (d) No building or structure or any portion thereof,
except boundary walls and fences shall be erected nearer than 9,45
metres
to the street line which forms a boundary of this erf, nor
within 3,15 metres of the lateral boundary common to any adjoining
erf,
provided that, with the consent of the local authority an
outbuilding not exceeding 3,05metres in height, measured from the
floor
to the wall plate may be erected within the above prescribed
lateral space of 9,45 metres reckoned from the rear boundary. On
consolidation
of any two or more erven this condition shall apply to
the consolidated area as one erf.
C.(iii) No building shall be erected upon this erf until
the plans and specifications have been submitted to the W.E Londt
Family
Trust and the W.E Londt Family Trust, or a duly qualified
Architect appointed by it for that purpose has approved of the
siting,
elevation plans and specifications of such building. The
decision of the W.E Londt Family Trust and/or its Architect shall be
final
and binding notwithstanding the value of the property t be
erected. The walls of any such building shall be of brick and/or
stone
and/or concrete and the roof of tiles, thatch, slate, shingles
or other material approved by the W.E Londt Family Trust.
C.(iv) Every erf shall on its street boundary or
boundaries be enclosed by a wall of brick, stone and/or concrete of a
design approved
by the W.E Londt Family Trust’s Architect.
86. The
application is founded upon a need to deal with an existing
non-compliance with the conditions contained in the title deed.
In
this regard the applicant states that a prior owner conducted
building operations on the property with the approval of the
municipality by way of approved building plans which resulted in an
encroachment on the property contrary to the restrictive building
lines set out above. The applicant wishes to undertake further
alterations and ins only able to obtain building plan approval when
one the restrictive conditions are removed.
87. The
applicant has undertaken extensive research in order to locate the
W.E Londt Family Trust. The supporting affidavit of the
applicant’s
attorney details these efforts which have included internet searches
and the like and communication with those
descendants of the original
Trust founder whom the attorneys have been able to trace.
88.
Furthermore notice of the application has been given to property
owners of adjacent erven and to property owners in the immediate
vicinity of the subject property.
89.
There is, in our view, no impediment to the granting of a rule
nisi
which will allow for notice of the application to be given to as
yet unidentified interested parties and to members of the public
at
large.
The
Orders
90.
I the result the following orders will issue:
Ex parte Whitfield: Case No 2500/2015
The application is dismissed.
Ex parte Dala: Case No. 2373/2016
The application is dismissed.
Ex parte Kitching NO: Case No 4082/2016
The application is dismissed.
Ex parte Tania Schaeffer: Case No 3782/2016
The application is dismissed.
Ex parte Wright: Case No 3406/2016
The rule
nisi
in relation to the deletion of the
restrictions set out in Clauses B 6 (d), C2 and C3 of Title Deed No T
95801/1996 is confirmed.
Ex parte Libele Holdings Trust: Case No. 3654/2016
The rule
nisi
is confirmed.
Ex parte Ross: Case No 4044/2016
1. A rule
nisi
shall issue calling upon all
interested parties to show cause to this Court on 25 April 2017 at
09h30, or so soon thereafter as
the matter may be heard, why an Order
in the following terms should not be made:
1.1 That clauses B.5 (d), C (iii) and C (iv), as set out
in deed of Transfer No. T60312/2016 in respect of Erf 263, Sunridge
Park,
reading as follows:
B.5 (d) No building or structure or any portion thereof,
except boundary walls and fences shall be erected nearer than 9,45
metres
to the street line which forms a boundary of this erf, nor
within 3,15 metres of the lateral boundary common to any adjoining
erf,
provided that, with the consent of the local authority an
outbuilding not exceeding 3,05metres in height, measured from the
floor
to the wall plate may be erected within the above prescribed
lateral space of 9,45 metres reckoned from the rear boundary. On
consolidation
of any two or more erven this condition shall apply to
the consolidated area as one erf.
C.(iii) No building shall be erected upon this erf until
the plans and specifications have been submitted to the W.E Londt
Family
Trust and the W.E Londt Family Trust, or a duly qualified
Architect appointed by it for that purpose has approved of the
siting,
elevation plans and specifications of such building. The
decision of the W.E Londt Family Trust and/or its Architect shall be
final
and binding notwithstanding the value of the property t be
erected. The walls of any such building shall be of brick and/or
stone
and/or concrete and the roof of tiles, thatch, slate, shingles
or other material approved by the W.E Londt Family Trust.
C.(iv) Every erf shall on its street boundary or
boundaries be enclosed by a wall of brick, stone and /or concrete of
a design approved
by the W.E Londt Family Trust’s Architect.
1.2 That the Registrar of deeds, cape Town is authorised
to give effect to this Order by endorsing the Deed of Transfer and
effecting
such endorsements of the Deeds as may be required.
2. Service of the rule
nisi
shall be effected:
2.1 By prepaid registered mail upon the registerd owners
of erven 147, 148, 259, 260, 261, 262, 264 and 277 Sunridge Park;
2.2 By sheriff upon the Municipal Manager of the Nelson
Mandela Metropolitan Municipality;
2.3 By sheriff upon the Registrar of Deeds, Cape Town.
3. Publication of the Order shall effected:
3.1 Once in English and isiXhosa in the Herald
newspaper; and
3.2 Once in Afrikaans and isiXhosa in Die Burger
newspaper.
_______________________
G. G.
GOOSEN
JUDGE
OF THE HIGH COURT
REVELAS,
J.
I
agree.
________________________
E.
REVELAS
JUDGE
OF THE HIGH COURT
ROBERSON,
J.
I
agree.
_______________________
J. M.
ROBERSON
JUDGE
OF THE HIGH COURT
Appearances:
For the
Applicant in Case No. 2500/2015
Adv. I.
Bands
Instructed
by Laubscher Attorneys
For the
Applicants in Case Nos. 3406/2016; 3654/2016 and 4044/2016
Adv. I.
Bands
Instructed
by BLC Attorneys
For the
Applicant in Case No. 4082/2016
Adv I.
Bands
Instructed
by Pierre Kitching Attorneys
For the
applicant in Case No. 3782/2016
Adv. S.
Potgieter
Instructed
by Schaeffer Attorneys
For the
Applicant in Case No.2373/2016
No
appearance
[1]
Plasket J and Roberson J issued an order requiring that the
Registrar cause service of the court order referring the matter to
a
full court for determination of the identified issues to be effected
on the Nelson Mandela Metropolitan Municipality, the local
Attorneys
Association and the Society of Advocates and that the order be
published in newspapers circulating in the area of jurisdiction
of
the court.
[2]
The commencement date is 1 July 2015 (Proclamation No. 26, Gazette
No. 38828 dated 27 May 2015).
[3]
1956 (2) SA 642
(T) at 646 C-G
[4]
Ordinance 11 of 1931 (T)
[5]
Gold at p. 649 D-E
[6]
1983 (3) SA 209
(D&CLD) at 212 E – 213 C
[7]
1997 (4) SA 716
(E) at 720 A–E
[8]
Act 47 of 1937
[9]
Act 67 of 1995
[10]
Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and others 2010 (6) SA 182 (CC)
[11]
Section 3
[12]
Section 42
[13]
Promulgated in Government Notice R239, Government Gazette 38594
dated 23 March 2015. Commencement date 13 November 2015 [Government
Notice 1126, Gazette No. 39415 dated 13 November 2015]
[14]
Act 84 of 1967
[15]
See paragraph 5 above
[16]
2011 (4) SA 149
(SCA) at par 37
[17]
Rovian Trust (supra) at 216H
[18]
Supra