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[2019] ZAGPPHC 73
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Dobson v City of Tshwane Metropolitan Municipality (2016/3335) [2019] ZAGPPHC 73 (15 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED
CASE
NO
:
2016/3335
DATE
:
15
TH
MARCH 2019
In
the matter between:
DOBSON,
AUBREY
Applicant
and
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
Respondent
JUDGMENT
ADAMS
J:
[1].
This is an opposed application by the applicant for a mandatory
interdict against the respondent
which would have the effect of
compelling the respondent to remove a sewerage pipe which runs across
the property of the applicant
and to relocate same so as to accord
with the conditions contained in the Title Deed relating to the
applicant's property. In the
alternative, the applicant applies for a
declaratory order that the existence of the sewerage pipe across his
property constitutes
an unlawful infringement by the respondent of
the applicant's property rights relative to the said property. The
applicant also
asks for ancillary relief aimed at a claim for damages
which result, according to the applicant, from the respondent's
alleged
unlawful infringement.
[2].
The application is opposed by the respondent on the basis that, if
regard is had to the
applicable legislative framework, the
applicant's property is lawfully subject to a servitude for purposes
of sewerage and other
Municipal services.
[3].
The applicant is the registered owner of a property in Lynnwood Manor
Extension 1. During
April 2007 he commenced the process of
subdividing his property, and this he did with the assistance of a
firm of land surveyors.
On 28 June 2007 the applicant obtained
official approval for the subdivision from the respondent. This
approval was granted to
the applicant by the respondent in terms of
the provisions of section 92 (2) of the Town Planning and Townships
Ordinance, 15 of
1986. The approval of the subdivision was subject to
a number of extensive conditions, which were set out in writing as an
attachment
to the letter of approval from the respondent. In his
founding affidavit the applicant confirms that he intended complying
with
the conditions imposed by the respondent for the subdivision, as
he intended building on the remaining extent of the property.
[4].
As part of the conditions applicable to the subdivision of the
applicant's property, the
respondent required applicant to register,
at his costs, a servitude over the property to cover the sewer pipe
crossing the applicant's
property, which had been
in situ
for
at least 30 years. It is the case of the applicant that he only
became aware of the existence of a sewerage pipeline across
his
property on 15 June 2015, at which point in time he had escalated the
finalization of the subdivision of his property. He says
that he was
not aware of the existence of the sewerage pipeline as it is not
recorded on the title deed relating to his property.
He thereupon
contacted the respondent who, according to the applicant, accepted
that the failure to register a servitude to cover
the sewerage
pipeline was as a result of a fault on the part of its predecessors.
The respondent again reiterated that his approval
of the subdivision
was subject to the registration of a servitude on the applicant's
property to cover the area traversed by the
pipeline.
[5].
There are no municipal records relating to the sewerage pipeline,
which is also not reflected
on the title deed of the applicant's
property.
[6].
The applicant refused to comply with the condition that he registers,
at his expense, a
servitude to cover the sewerage pipeline, which
would traverse a portion of his property, making that part of the
property unusable
and of very little monetary value. This, according
to the applicant, also resulted in the cancellation of the sale of
the property,
which caused him damages.
[7].
It is the applicant's case that the existing sewerage pipeline is an
infringement of his
property rights. He therefore requires the court
to order the respondent to remove the existing sewerage pipe, which
dissects a
portion of his property, and to relocate same to one of
the boundaries of the Erf, as provided for in the title deed of the
property.
[8].
The case of the respondent is that, at all relevant times, it acted
within the framework
of its legislative power and authority and at no
stage did it act unlawfully. The respondent denies that it infringes
on the applicant's
property rights. In terms of the applicable
Ordinance, the owner of land, who wishes to subdivide his property,
shall comply with
any requirements imposed by a Municipality in
relation to the approval of the subdivision. The applicant has failed
to comply with
the conditions imposed. This means, so the respondent
submits, that it has not acted unlawfully. In fact, in imposing the
condition
applicable to the subdivision, it acted well with in its
power and authority, which means that the applicant was obliged to
comply
with the condition so imposed.
[9].
I find myself in agreement with the respondent's submissions. I am
not satisfied that the
applicant has made out a proper case for the
relief sought in this application.
[10]. His
application therefore stands to be dismissed.
Costs
(5)
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See:
Myers
v Abramson,
1951(3) SA 438 (C) at
455.
(6)
I can think of no reason why I should
deviate from this general rule.
(7)
I therefore intend awarding cost against
the first respondent in favour of the applicant.
Order
Accordingly,
I make the following order:-
1.
The applicant's application
against the respondent be and is hereby dismissed.
2.
The respondent shall pay the
applicant's cost of this opposed application.
LR ADAMS
Judge of the High Court
Gauteng Division, Pretoria
HEARD
ON:
12
th
March 2019
JUDGMENT
DATE:
15
th
March 2019
FOR
THE APPLICANT:
Adv A Van der Westhuizen
INSTRUCTED
BY:
Jacques
Classen Attorneys
FOR THE RESPONDENT:
Adv W W Geyser
INSTRUCTED
BY:
Dyson Incorporated