THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 155/09

WILMA EMMERENTIA VAN RENSBURG NO

First Appellant
PHILLIPUS STEPHANUS VAN RENSBURG NO

Second Appellant
(in their capacities as trustees for the time being of the Hobie Trust)

and

PERAPANJAKAM NAIDOO NO

First Respondent
PURSOTHAM NAIDOO NO

Second Respondent
SHASHI NAIDOO NO

Third Respondent
ANTHOSH NAIDOO NO

Fourth Respondent
(in their capacities as trustees for the time being of the Shan Trust)

_________________________________________________________________________________________________

Case no: 455/09

PERAPANJAKAM NAIDOO NO

First Appellant
PURSOTHAM NAIDOO NO

Second Appellant
SHASHI NAIDOO NO

Third Appellant
SESHAMMA MOODLEY NO

Fourth Appellant
ANTHOSH NAIDOO NO

Fifth Appellant
(in their capacities as trustees for the time being of the Shan Trust)

and

WILMA EMMERENTIA VAN RENSBURG NO

First Respondent
PHILLIPUS STEPHANUS VAN RENSBURG NO

Second Respondent
MEC FOR HOUSING, LOCAL GOVERNMENT AND TRADITIONAL AFFAIRS

Third Respondent
EASTERN CAPE PROVINCE
NELSON MANDELA METROPOLITAN MUNICIPALITY

Fourth Respondent
THE REGISTRAR OF DEEDS

Fifth Respondent
_________________________________________________________________________________________________
Neutral citation:
Van Rensburg NO v Naidoo NO  (155/09); Naidoo NO v Van Rensburg NO  (455/09) [2010] ZASCA
68  (26 May 2010)

CORAM:
Navsa, Heher, Van Heerden, Mhlantla JJA and Saldulker AJA
HEARD:
3 May 2010
DELIVERED:
26 May 2010
SUMMARY:
Two linked appeals ─ nature of rights derived from restrictive conditions in title deed stated to
be subject to alteration discussed ─ zoning regulations and town planning schemes not overriding restrictive
conditions ─ the Removal of Restrictions Act 84 of 1967 not applicable ─ power of Member of the Executive
Council of the Eastern Cape Province to alter or amend restrictive conditions ─ delegation not properly proved ─
decision made without reference to written objections in any event liable to be set aside ─ power of court of the
same division and of equal jurisdiction to set aside or otherwise interfere with order intended to be final in effect

discussed ─ held that in the prevailing circumstances the court had no such power either by way of inherent
jurisdiction or in terms of the Uniform rules of court ─ held that justice required the prior order to be executed.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from:
Eastern Cape High Court, Port Elizabeth (Van der Byl AJ
and Dambuza J, each sitting as court of first instance in two separate but related
matters).
1.
In Wilma van Rensburg NO & another v Perapanjakam Naidoo NO &
others (case no 155/09):
(a)
the appeal is upheld with costs including the costs of two counsel.
(b)
the order of the court below is set aside in its entirety and substituted as
follows:
‘The application is dismissed with costs including the costs of two counsel.’
2.
In Perapanjakam Naidoo NO & others v Wilma van Rensburg NO &
another (case no 455/09):
(a)
the appeal is dismissed with costs including the costs of two counsel.
(b)
the appellants’ legal representatives are precluded from recovering any
costs from the appellants related to the unnecessary and duplicated parts of the
record (one third thereof).
________________________________________________________________
JUDGMENT
________________________________________________________________

NAVSA et MHLANTLA JJA: (Heher, Van Heerden JJA and Saldulker AJA
concurring)

[1] These two linked appeals, which are before us with the leave of this court
have been consolidated, and are the culmination of protracted litigation between
feuding neighbours. The two appeals necessitate consideration of three
judgments of the Port Elizabeth High Court. In the first, Froneman J had ordered

that approvals granted by the Municipality, to legitimise construction work, which
had already been completed in the north eastern corner of an erf in
Summerstrand Township, Port Elizabeth, be set aside and that the entire
northern building on that erf be demolished, as well as the top storey and
staircase leading to it of another building situated in the north-western corner of
the erf, within 60 days of the date of the order. He also ordered an abatement of
a nuisance emanating from that erf.1 In the second high court judgment,
delivered on 8 July 2008, which is the subject of the first appeal before us under
case number 155/2009, Van der Byl AJ, purported to declare parts of Froneman
J’s judgment, delivered on 30 March 2007, to be of no force and effect and made
certain allied orders. In the third judgment, delivered on 2 June 2009, which is the
subject of the second appeal under case number 455/2009, Dambuza J reviewed
and set aside a decision of the Member of the Executive Council of Local
Government & Traditional Affairs, Eastern Cape Province (the MEC) to remove
restrictive title deed conditions in relation to the erf referred to above.

[2] In the first appeal, the power of a high court, not sitting as a court of
appeal, to suspend or nullify final orders granted in the same division, in relation
to the issues referred to in the preceding paragraph and to make related orders,
falls to be considered. In the second appeal the question is whether the MEC’s
decision was rightly reviewed and set aside. The appeal against the order of Van
der Byl AJ is referred to as the suspension appeal. The appeal against the order
of Dambuza J is referred to as the review appeal.

[3] The opposing litigating trustees are as follows. The trustees for the time
being of the Shan Trust are Perapanjakam Naidoo, her husband Purshotam
Naidoo and three other members of their family. The trustees for the time being
of the Hobie Trust are Phillippus and Wilma Van Rensburg, who are husband

1 The judgment of Froneman J is reported as Van Rensburg NO v Nelson Mandela Metropolitan
Municipality 2008 (2) SA 8 (SE).

and wife. The litigating parties are referred to as the Shan and Hobie Trusts
respectively.

[4] The Hobie Trust is the owner of erf 104, situated at 4 Sixth Avenue,
Summerstrand, Port Elizabeth. The Shan Trust owns erf 105, situated at
3 Seventh Avenue, Summerstrand, Port Elizabeth. The Hobie Trust property
abuts the northern boundary of the Shan Trust erf.  The Shan Trust conducts the
business of a guest house on erf 105.

[5] The litigation between the parties relates to certain structures on erf 105
that were constructed, extended and renovated over time by the Shan Trust, in
furtherance of the guest house business it conducts on the premises. The
following issues arise:
(a)
whether erf 105 could be used for purposes other than that of a private
residential dwelling;
(b)
the legality of authorisations to conduct a guest house business, granted
by the Nelson Mandela Metropolitan Municipality (the Municipality);
(c)
the legality of approvals of building plans by the Municipality to regularise
buildings already constructed on erf 105; and
(d)
the power of the MEC, to alter or amend restrictive conditions in a title
deed, more particularly in relation to erf 105.

[6] As will become apparent, chronology and sequence are crucial to a
proper appreciation of the issues in both matters. At the outset it is necessary to
deal with the history of Summerstrand, the township in Port Elizabeth in which
the properties in question are located. Although there appears to be some
confusion about the date of the establishment of Summerstrand Township, there
is force in the submissions on behalf of the Hobie Trust, that relevant
documentary evidence tends to show that the township was established by the
Administrator of the then Cape Province at a time when the Townships
Ordinance 13 of 1927 was in force. The Townships Ordinance 33 of 1934

repealed the earlier Ordinance, with effect from 1 January 1935. Section 63 of
the 1934 Ordinance provided that any matter pending under the 1927 Ordinance
and uncompleted should be completed in terms of that earlier Ordinance.

[7] At the time of the establishment of Summerstrand Township the following
restrictive conditions were inserted in title deeds in favour of all erf-holders:
‘C. SUBJECT FURTHER to the following conditions contained in Deed of Transfer T999/1944
imposed by the Municipality of the City of Port Elizabeth in terms of the provisions of Township
Ordinance No 13 of 1927 in favour of itself and any erf-holder in the Summerstrand Extension
Township (and subject to alteration and amendment by the Administrator):
(a)
That this erf shall be for residential purposes only.
(b)
That only one house designed for the use as a dwelling for a single family, together with
such outbuildings as are ordinarily required to be used therewith, be erected on this erf.
(c)
That no more than half the area of this erf shall be built on.
(d)
That no building or structure or any portion thereof except boundary walls and fences
shall be erected nearer to the street line which forms a boundary of this erf than the building
indicated on the diagram of this erf.’ (Our emphasis.)

[8] It is now necessary to deal with the history of material events in relation to
erf 105, which regrettably, is lengthy and complex. The Hobie Trust became
owner of erf 104 in 1989. The Shan Trust became owner of erf 105 in 1996 and
at that stage there was only one main dwelling situated on its southern boundary
with a double garage outbuilding on the western edge.

[9] The Shan Trust conducted the business of a guest house on erf 105 by
virtue of a special consent given to it by the Municipality, ostensibly in terms of its
Zoning Scheme Regulations. The first consent was provided on 28 March 1996
and limited the Shan Trust to a maximum of four bedrooms for hire. On
17 September 2002 the Shan Trust applied for a further departure from the
Zoning Scheme Regulations to operate a guest house with a total of 11 rooms for
hire. The Hobie Trust, together with five other owners and residents in the
vicinity, objected to the application. Almost two years later, on 28 July 2004, the
Municipality resolved to grant the Shan Trust’s application, subject to certain

conditions. An appeal by the Hobie Trust to the MEC against that decision was
unsuccessful.

[10] Extensive improvements on erf 105 were embarked on by the Shan Trust
from the time that it became owner. These were effected in three phases. It
appears that at almost every stage of the development the plans and approvals
followed the construction work on the premises. In respect of improvements
effected during 2000 it is admitted by the Shan Trust that no building plans were
approved by the Municipality until 2004. The Shan Trust’s contention that it
effected the improvements in the bona fide belief that the plans had been
approved before construction commenced has an unconvincing and hollow ring
to it.

[11] An outside staircase extending an existing one, in a building on the north-
western side of the erf leading to the roof of a second storey, was not depicted on
the approved plan. Once again, the Shan Trust’s explanation that this was an
oversight on the part of the architect, in our view, is too glib. In 2006, and after
much litigation, the Shan Trust sought to overcome this problem by submitting a
site development plan in pursuit of ex post facto approval.

[12] It is also clear that, prior to the special consent granted to it by the
Municipality to extend its guest house facilities from four rooms to 11, the Shan
Trust had already been letting and hiring 11 rooms. It is disingenuous to suggest,
as the Shan Trust does, that it had lodgers in the additional rooms rather than
guests.

[13] During 2004, after an application was launched in the Port Elizabeth High
Court by the Hobie Trust to interdict the Shan Trust from using erf 105 unlawfully,
officials of the Municipality inspected the property and found that rooms were
unlawfully used on a permanent basis as accommodation for post-graduate
students, that a staircase extended beyond the building line and that a number of

kitchens had been installed within the existing buildings, contrary to the zoning
regulations. The Municipality demanded that the Shan Trust cease the unlawful
use of the property and ensure that the construction work complied with zoning
regulations within 30 days.

[14] As a result of the attitude adopted by the Municipality, and in the hope that
the matter would be resolved to its satisfaction, the Hobie Trust withdrew its
application for an interdict. The Shan Trust did not, however, satisfy all of the
demands made upon it by the Municipality. This led to a further application by the
Hobie Trust in the Port Elizabeth High Court, in which it sought, inter alia, an
order for the demolition of the offending buildings on erf 105.

[15] The Municipality initially opposed the application and the Shan Trust
decided in the light thereof, not to do so. However, one day before the answering
affidavit by the Municipality was due to be filed, it made a demand upon the Shan
Trust, similar to its previous demand referred to in para 13 above. According to
the Shan Trust it responded by submitting new plans in an attempt to legitimise
the buildings already constructed. The Municipality denied having received those
plans.

[16] During February 2007, and before the application was heard, the
Municipality withdrew its special consent to a departure from the zoning
regulations, in terms of which it had granted the Shan Trust permission to
conduct a guest house with 11 rooms. It subsequently also withdrew its
opposition to the application by the Hobie Trust. In response, the Shan Trust
entered the fray and sought a postponement from Froneman J, in order to do the
following:
(a)
to take the necessary steps to review the Municipality’s withdrawal of its
special consent;
(b)
to make an application for the removal of the restrictive conditions from the
title deed of Erf 105 Summerstrand;

(c)
to resubmit a detailed site development plan and building plans in respect
of improvements to Erf 105 Summerstrand.
At the same time the Shan Trust undertook, in an apparent attempt at
appeasement, to abate the nuisance complained of.

[17] Froneman J, characterised the purpose of the postponement application
as follows:
‘[It] is in essence to give it time to construct a defence to the claims in the main application.’
The learned judge stated that the Shan Trust was required to show that it prima
facie had a bona fide defence. He took the view that, even though the Hobie
Trust had raised the restrictive title conditions in the main application set out in
para 8 above as a ground for relief for the first time in supplementary affidavits at
the end of October 2006,2 the Shan Trust had done nothing in this regard until it
sought a postponement in March 2007. Froneman J also took into account that
the Shan Trust had failed to provide any legal or factual basis for the proposed
review of the Municipality’s decision to withdraw its special consent and for the
setting aside of the restrictive title conditions. Consequently, the learned judge
refused the postponement and ordered the Shan Trust to pay the costs, including
the costs of two counsel.

[18] In the main application, Froneman J had regard to the relevant restrictive
conditions. In essence they provide that the erf be used for residential purposes
only, that only one single house dwelling for use by a single family and ordinary
outbuildings required for such use may be built on the erf, and that no garage
other than for ordinary use for persons residing on the erf may be erected. The
learned judge stated that these kinds of restrictive conditions took precedence
over the Municipality’s zoning and planning schemes and that this followed from
their characterisation in our case law as praedial servitudes in favour of other erf

2 Initially the grounds on which the Hobie Trust relied were: (a) the non-compliance with the
National Building Regulations and Standards Act 103 of 1977, (b) contraventions of Zoning
Scheme and Land Use Planning regulations and (c) the irregular granting by the municipality of
special consent to use the buildings as part of a guest house.

holders.3 He concluded that any possible permission by the Municipality to build
or use buildings contrary to the restrictive conditions could not be lawful.
Froneman J went on to make the orders referred to in para 5 above. He refused
leave to appeal against his judgment.

[19] An application for leave to appeal against the judgment of Froneman J
was refused by this court on 25 September 2007 and in due course by the
Constitutional Court on 1 November 2007.

[20] In the meanwhile on 27 June 2007, approximately three months after the
judgment of Froneman J, the Shan Trust applied to the Premier of the Eastern
Cape for the removal of the applicable restrictive conditions. On 17 July 2007 the
Hobie Trust objected in writing to the application by the Shan Trust and
substantiated its opposition.

[21] On 11 October 2007, the MEC, purporting to act under delegated authority
from the Premier of the Eastern Cape Province (the successor to the erstwhile
Administrator), granted consent for the removal of Condition C (a), (b), (c) and (d)
from Title Deed No T26430/1996 in respect of erf 1054 and substituted therefor
the following condition:
'That this erf shall be used for residential purposes, including for a guesthouse, only, subject to
the Provisions of the municipality's guesthouse policy and applicable zoning scheme.'
It is common cause that when the MEC made the decision to remove the
restrictive conditions, she did not have before her the written objection by the
Hobie Trust.

[22] On 7 November 2007 the Hobie Trust requested reasons for the MEC’s
decision to remove the restrictive conditions. Reasons were supplied on
1 February 2008.

3 Op cit note 1 at para 8.
4 Set out in para 7.

[23] The Shan Trust resorted to yet further litigation. On 8 January 2008 an
application was launched in the Port Elizabeth High Court, in terms of which it
sought an order setting aside parts of the order of Froneman J, alternatively an
order that parts of his order be declared to be of no force and effect.
Furthermore, an order was sought suspending that part of Froneman J’s order in
terms of which the Shan Trust was required to demolish and remove the top
storey and the accompanying staircase of the building in the north western corner
of erf 105, pending a decision of the Municipality in relation to the site
development plan that it intended presenting for approval. From the perspective
of the Shan Trust this would legitimise the offending structures, ex post facto.
Further relief, irrelevant for present purposes, was also sought. This application
was heard by Van der Byl AJ.

[24] On 26 March 2008, before the Shan Trust’s application was ripe for
hearing, the Hobie Trust instituted proceedings in the Port Elizabeth High Court
to have the MEC's decision reviewed and set aside, inter alia, on the grounds
that:
(a)
the decision amounted to an abrogation of the real and registered praedial
servitude rights of the Hobie Trust as well as of other residents in Summerstrand;
(b)
the decision was not properly made in terms of the Removal of
Restrictions Act 84 of 1967 (the Act);
(c)
the decision constituted administrative action as defined in the Promotion
of Administrative Justice Act 3 of 2000 (PAJA) and fell to be set aside on the
bases set out above as well as it having been taken without hearing the affected
parties, including the Hobie Trust and other residents in Summerstrand;
(d)
the objections of the Hobie Trust and other affected residents were not
considered;
(e)
the MEC lacked statutory authority to make the decision removing the
restrictive conditions.

[25] Before the Hobie Trust’s application was heard, judgment was delivered in
the Shan Trust application referred to in para 23 above. Van der Byl AJ made the
following orders:
‘1.
It is declared that, because of the removal of the restrictive conditions contained in
paragraph C of Title Deed No. T 26430/1996 in respect of Erf 105, Summerstrand, Port Elizabeth,
by virtue of a decision of the [MEC] taken on 11 October 2007, paragraphs 1 and 2 of the order
granted in Case No. 1668/06 on 30 March 2007 have become of no force and effect.
2.
The [Municipality] is ordered to consider and process the site development plan and
building plans, Annexure R to the founding affidavit, submitted to it by the Applicants on 7 June
2006 (of which copies have been submitted to it on 20 March 2007).
3.
Paragraph 3 of the order granted by Froneman J on 30 March 2007 is suspended in
terms of Rule 45A until such time as the [Municipality] has finally considered and processed the
site development plan and building plans referred to in paragraph 2 of this order, whereafter the
parties, depending on the outcome of such consideration and processing, are granted leave to
approach this Court on the same papers, supplemented as the circumstances may require, for
further appropriate relief.
4.
The [Hobie Trust] is ordered to pay the costs of this application including the costs
attendant upon the employment of two counsel.’

[26] Van der Byl AJ took into account that the Hobie Trust’s review application
was pending. He noted, with dismay that the Hobie Trust had refused to agree to
a postponement of the Shan Trust’s suspension application to allow for the
finalisation of the review application. In dealing with the merits of the application,
the learned judge had regard to numerous decided cases dealing with the maxim
cessante ratione legis cessat ipsa lex, which literally translated reads as follows:
‘If the reason for a law falls away, the law itself falls away.’
He considered whether it applied to interpretation of statutes only or whether it
could be applied in relation to judgments and orders of court and concluded that
a judgment and order may fall away if the causa fell away.

[27] Van der Byl AJ said the following in relation to the orders issued by

Froneman J:
‘I am in grave doubt whether Froneman J would have, had the existence of the restrictive
conditions been the only issue on which he was called upon to consider the demolition of the
northern building, issued the orders in question if the restrictive conditions had at the time of his
judgment already been removed, albeit after the northern building had already been erected.’

[28] The learned judge concluded that the removal of the restrictive conditions
removed the causa on which the orders were based and that the execution of the
orders had become unenforceable. He traversed ground already covered in the
application before Froneman J and, unlike the latter, was readily accepting of the
Shan Trust’s assertion that subsequent to the demand by the Municipality during
2006 it had taken all the neccessary steps to regularise the situation in relation to
offending structures on erf 105. It was for that reason that Van der Byl AJ made
the orders compelling the Municipality to consider the plans set out in the orders
made by him. In relation to paragraph 3 of Froneman J’s order, he held that
Uniform rule 45A entitled him to suspend it in the terms set out earlier.

[29] Subsequent to the order by Van der Byl AJ, the Hobie Trust’s review
application was heard and judgment was delivered. Dambuza J held that the
decision by the MEC, removing the restrictive conditions, was administrative
action in terms of PAJA and that it fell to be reviewed and set aside for failure,
inter alia, to have regard to the submissions made by the Hobie Trust. She held
further that there had been no proper delegation to the MEC and that the latter
had no power to remove the restrictive conditions. Dambuza J accordingly
ordered the Registrar of Deeds to reinstate the restrictive conditions to Title Deed
No T26430/1996 in respect of Erf 105, Summerstrand.

Conclusions

[30] We intend to deal first with the review appeal. Counsel representing the
Shan Trust rightly conceded that he could not contend that the decision by the

MEC was not ‘administrative action’ as defined in PAJA.5 He focused on the
nature of the rights derived from the restrictive title deed conditions. He sought to
characterise them as rights which, from inception, were always subject to
alteration or amendment and submitted that residents including the Hobie Trust
could not now complain when those restrictive conditions were altered or
amended. He relied on the decisions of this court in Rossmaur Mansions (Pty)
Ltd v Briley Court (Pty) Ltd 1945 AD 217 and Ronnie’s Motors (Pty) Ltd v Van der
Walt 1962 (4) SA 660 (A) and on Garden Cities v Registrar of Deeds 1950 (3) SA
239 (C).

[31] In Rossmaur an application to the then Administrator of the Province for
the removal of restrictive conditions was unopposed and the Administrator
subsequently removed them. The respondent applied to court to have the
Administrator’s decision declared ultra vires. The court of first instance and this
court had regard to the Ordinance in terms of which the Administrator purported
to act and concluded that the Administrator had no power to deprive erf-holders
of their rights. At pp 228-229 of Rossmaur the following appears:
‘Where an application to establish a township has been granted subject to a requirement,
imposed on the recommendation of the Townships Board, that restrictive conditions as to the use
of lots are to be included in the titles, such conditions, when once included in the titles of the
lotholders, if not framed in terms which expressly render them subject to future cancellation or
variation, must be regarded as conferring rights of a permanent nature, which cannot be
cancelled or varied either by the Townships Board itself, or by any other authority, by virtue of
powers of “administration” exerciseable over the township concerned.’

[32] The Shan Trust’s reliance on Rossmaur is misplaced. That case dealt with
the Administrator’s power to deprive erf-holders of their right. The dictum in the
preceding paragraph is no authority for the proposition that an affected erf-holder

5 The MEC is a public authority. When she makes decisions affecting particular holders of title
deeds and residents in a township generally she is exercising public power. Her decisions in this
regard have a direct external effect.

should not be afforded a hearing. In the present constitutional structure such a
proposition is untenable.6

[33] It is true that in Garden Cities the high court held that owners were not
entitled to be consulted on an Administrator’s decision to amend or alter
restrictive conditions. That case was decided by a provincial division almost 60
years ago. It is unsustainable under the current constitutional dispensation and
perhaps even wrongly decided then.7

[34] It is necessary to address the MEC and the Municipality’s attitude towards
the rights of land owners, derived from restrictive conditions in their title deeds.
The Municipality and the MEC appear to adopt the position that the Municipality’s
policies and zoning regulations trump the rights of owners derived from their title
deeds. This is unacceptable.

[35] In Malan & another v Ardconnel Investments (Pty) Ltd 1988 (2) SA 12 (A)
at 40E-G this court said the following:
‘[I]t must be borne in mind that a town planning scheme does not overrule registered restrictive
conditions in title deeds. Moreover, a consent by a local authority in terms of a town planning
scheme does not per se authorise the user of an erf contrary to its registered restrictive title
conditions. See Ex parte Nader Tuis (Edms) Bpk 1962 (1) SA 751 (T) at 752B-D; Kleyn v Theron
1966 (3) SA 264 (T) at 272; Enslin v Vereeniging Town Council 1976 (3) SA 443 (T) at 447B-D.’

[36] Froneman J, in arriving at the conclusions referred to above, stated (at
para 8):
‘It is common cause that this kind of restrictive condition takes precedence over the municipality’s
zoning and planning schemes. Generally this follows from their characterisation in our case law
as praedial servitudes in favour of other erf holders (Ex parte Rovian Trust (Pty) Ltd 1983 (3) SA
209 (D) at 212E-213F; Malan and Another v Ardconnel Investments (Pty) Ltd 1988 (2) SA 12 (A)
at 40B-I) and in this case also, particularly, from the express wording of clause 1.6.5 of the

6 See in this regard s 6(2)(c) of PAJA. That Act was promulgated in furtherance of the
fundamental right to administrative action that is lawful, reasonable and procedurally fair.
7 Buffalo City Municipality v Gauss and Another 2005 (4) SA 498 (SCA) at paras 7 and 8.

Council Zoning Scheme Regulations. Consequently, any possible permission by the municipality
to build or use buildings contrary to the conditions cannot be lawful.’
See also Camps Bay Ratepayers and Residents Association and others v
Minister of Planning, Culture and Administration, Western Cape and others 2001
(4) SA 294 (C) at 324E-G.

[37] 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.

[38] Section 84 of the Act provides for notice to be given to affected persons in
the event of a contemplated removal of restrictive conditions. In the present case
the MEC and the Municipality disavowed any reliance on the Act and relied solely
on the right reserved to the Administrator to alter or amend the restrictive
conditions, as provided for in the title deed.

[39] Furthermore, the MEC’s reliance on a delegation by the Premier is
misplaced. First, the title deed itself does not provide for delegation. Second, no
delegation was proved. In this regard the onus rested on the MEC. See
Chairman, Board on Tariffs and Trade & others v Teltron (Pty) Ltd 1997 (2) SA
25 (A) at 31F-H. The MEC relied on a proclamation in terms of which the
administration of the Act was assigned to her.8 Given that the MEC and the
Municipality disavowed reliance on the Act it is of no assistance to them.

8 Proclamation No 6 of 1998, Provincial Gazette No 323 31 July 1998.

[40] The two grounds referred to above, separately and together, are fatal to
the Shan Trust case. There also appears to be force in the submissions on behalf
of the Hobie Trust, that the power to alter or amend does not include the power to
remove or delete. Further, since restrictive conditions are usually inserted to
preserve the identity of an area, the Municipality might be required to engage
with other neighbours and owners in the area. Even if the area has undergone
some change, it does not necessarily follow that further change is warranted or
unchallengeable. Steps have apparently been taken by the Municipality in an
attempt to engineer a blanket removal of restrictive conditions in the
Summerstrand area. As far as is known, no progress has yet been made.  It is,
however, for the reasons aforesaid, not necessary for any further discussion on
these or any other issues in respect of the review appeal.

[41] For the reasons set out above, the conclusions of Dambuza J cannot be
faulted.

[42] We turn to deal with the suspension appeal. In interpreting a judgment the
court’s intention is to be ascertained primarily from the language of the judgment
or order as construed according to the usual well-known rules relating to
documents. As in the case of any document, the judgment or order and the
Court’s reasons for giving it must be read as a whole to ascertain its intention. In
this regard see Administrator, Cape & another v Ntshwaqela & others 1990 (1)
SA 705 (AD) at 715F-H.9

[43] It is necessary to place Froneman J’s judgment and conclusions in proper
perspective. First, Froneman J was apprised of the Shan Trust’s intention to
apply to have the restrictive conditions removed and he clearly and rightly did not
think it would be of any consequence. Second, the learned judge very carefully
considered the conduct of the Shan Trust over the years and concluded as

9 Drawn from Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A).

follows (at para 10):
‘On the papers before me the Shan Trust has shown a flagrant and sustained  disregard, not only
for the legitimate interests of its neighbours, but also for the local authority requirements, over a
very long period of time.’

[44] Froneman J went on to consider whether a damages claim rather than a
demolition order might meet the exigencies of the situation. He took into account
the diminution in value of the Hobie Trust property as a result of the Shan Trust’s
conduct. He reasoned that although a damages claim was viable, it was
important to bear in mind that the continued enjoyment of the privacy of those
living as neighbours to erf 105 would be destroyed if he failed to order demolition.
He took into consideration that the title conditions sought to preserve the
character of the suburb and that developments at erf 105 undermine it.10

[45] It should be borne in mind that in the application heard by Froneman J, the
Shan Trust was aware of the allegations made against it by the Hobie Trust. It is
clear that the repeated offending conduct of the Shan Trust, set out above, was
traversed in the affidavits filed by the Hobie Trust. The Shan Trust chose, at its
peril, to leave opposition to the Municipality.

[46] It is not surprising that Froneman J was unwilling to grant the Shan Trust
the postponement sought. He had rightly concluded in the main application, that
the Shan Trust had lagged behind the law once too often and that enough was
enough! Thus, Froneman J’s orders were intended to have immediate effect. The
60 day period within which the demolition order was to be effected was stipulated
for practical purposes, namely to enable the owners and demolishers to do the
necessary within a time frame. There can be no doubt that he intended that
immediate steps be taken to ensure execution of the relevant orders.

10 See para 12 of the judgment.

[47] It is against that background that the application before Van der Byl AJ
should be seen. Van der Byl AJ failed to appreciate the full import of Froneman
J’s judgement. It re-engaged on issues decided finally by Froneman J, namely,
whether the offending conduct by the Shan Trust should continue to be
countenanced. It will be recalled that Van der Byl AJ directed the Municipality to
consider plans which, if approved, would ostensibly legitimise the contravening
structures. Van der Byl AJ did what he was not empowered to do, namely,
declaring in final terms, an order made by a court of equal jurisdiction to be of no
force and effect.11 He was not sitting as a court of appeal or review in respect of
Froneman J’s judgment and yet his reasoning reflects hallmarks of those
procedures.

[48] The cases relied upon by the court below, dealing with the rationale for
court orders falling away because of subsequent events, are distinguishable. In S
v Mujee 1981 (3) SA 800 (Z) an accused had been convicted of failing to make
payments under a contribution order to a named certified institution in
contravention of provisions of the applicable Maintenance Act. On review it
appeared that the child concerned had previously been discharged from the
institution and that the contribution order should therefore have been discharged.
The court held that since a contravention of the applicable statutory provision
was dependent on the contribution validly being in force, it could not have been
the law’s intention to treat as valid, a maintenance order when the entire object of
the order had fallen away. Put differently, the court had intended that
contributions be made for as long as the child was in an institution. That scenario
is a far cry from the facts of the suspension appeal. Froneman J had intended the
orders he made to be final and to be executed. As far as he was concerned the
Shan Trust had come to the end of the road.

11 As appears from what is set out in para 25 above Van der Byl AJ nullified Froneman J’s order
setting aside any building plan approvals granted by the Municipality in relation to the building
that had already been constructed in the north eastern corner of erf 105.

[49] Ras & andere v Sand River Citrus Estates (Pty) Ltd 1972 (4) SA 504 (T),
Le Roux v Yskor Landgoed (Edms) Bpk 1984 (4) SA 252 (T) and Bekker NO v
Total South Africa (Pty) Ltd 1990 (3) SA 159 (T) were all concerned with the
question whether the causae for writs of execution remained extant. These cases
do not assist the Shan Trust.

[50] Purporting to act according to the provisions of Uniform rule 45A,12 Van
der Byl AJ suspended Froneman J’s order, in terms of which the Shan Trust was
required to take the necessary steps to demolish the offending structures on erf
105. He did so even before the stated reason for nullifying it had materialised,
and without proper appreciation of what Froneman J had intended.

[51] Apart from the provisions of Uniform rule 45A a court has inherent
jurisdiction, in appropriate circumstances, to order a stay of execution or to
suspend an order. It might, for example, stay a sale in execution or suspend an
ejectment order. Such discretion must be exercised judicially. As a general rule, a
court will only do so where injustice will otherwise ensue.13

[52] A court will grant a stay of execution in terms of Uniform rule 45A where
the underlying causa of a judgment debt is being disputed, or no longer exists, or
when an attempt is made to use the levying of execution for ulterior purposes. As
a general rule, courts acting in terms of this rule will suspend the execution of an
order where real and substantial justice compels such action.14

[53] Froneman J had regard to whether justice would be done by ordering the
demolition. He considered an alternative measure, namely damages, but
importantly, thought that the conduct of the Shan Trust over the years had been
flagrantly disrespectful of the law and the rights of others. Seen from this

12 Uniform rule 45A reads as follows:
‘The court may suspend the execution of any order for such period as it may deem fit.’
13See Farlam, Fichardt, Van Loggerenberg Erasmus Superior Court Practice B1-330.
14 Erasmus Superior Court Practice B1-330 to B1-330A.

perspective Van der Byl AJ erred in suspending the relevant order. Even though
he may have taken a different view it was not appropriate for him to prefer his
view to that of Froneman J.

[54] There certainly was no case to be made at any stage for a rescission of
any part of Froneman J’s judgment. The learned judge had correctly concluded
that insofar as the offending structures were concerned and having regard to the
unlawful conduct of the Shan Trust over the years, the time for finality had come.
The principle of legality, a cornerstone of the Constitution, applies to government
and governed alike. Repeat transgressors such as the Shan Trust are
undeserving of the protection afforded by Van der Byl AJ.  Froneman J intended
finality. The effect of Van der Byl AJ’s judgment is recrudescence.

[55] One remaining aspect calls for attention. The record in the review matter
was prepared by the Shan Trust’s legal representatives. It contains a great deal
of irrelevant and duplicated matter. The Hobie Trust’s representatives were not
approached timeously to avoid this unfortunate result. Counsel representing the
Shan Trust conceded that fault could rightly be attributed to his attorneys and
was unable to provide a basis for resisting an order that his attorney should be
precluded from recovering from his/her client such costs incurred in consequence
of those unnecessary portions being incorporated into the record. In our view, at
least a third of the record was unnecessary.

[56] For all the reasons set out above, the following order is made:
1.
In Wilma van Rensburg NO & another v Perapanjakam Naidoo NO &
others (case no 155/09):
(a)
the appeal is upheld with costs including the costs of two counsel.
(b)
the order of the court below is set aside in its entirety and substituted as
follows:
‘The application is dismissed with costs including the costs of two counsel.’

2.
In Perapanjakam Naidoo NO & others v Wilma van Rensburg NO &
another (case no 455/09):
(a)
the appeal is dismissed with costs including the costs of two counsel.
(b)
the appellants’ legal representatives are precluded from recovering any
costs from the appellants related to the unnecessary and duplicated parts of the
record (one third thereof).

_________________
M S NAVSA
JUDGE OF APPEAL

_________________
N Z MHLANTLA
JUDGE OF APPEAL

APPEARANCES:

Case no 455/09
For Appellant:
H J Van der Linde SC

J D Huisamen

Instructed by:
Greyvensteins Nortier Inc, Port Elizabeth

E G Cooper Majiedt Inc, Bloemfontein

For Respondent:
O Rogers SC

M Euijen

Instructed by:
De Villiers & Partners, Port Elizabeth

Honey Attorneys, Bloemfontein

Case no 155/09
For Appellant:
O Rogers SC

M Euijen

Instructed by:
De Villiers & Partners, Port Elizabeth

Honey Attorneys, Bloemfontein

For Respondent:
H J Van der Linde SC

J D Huisamen

Instructed by:
1st – 5th  Respondents:
Greyvensteins Nortier Inc, Port Elizabeth
E G Cooper Majiedt Inc, Bloemfontein

6th & 8th Respondents:
Rushmere Noach Inc, Port Elizabeth
(Abiding with the decision of the Court.)

7th Respondent:
State Attorney, Port Elizabeth
State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

26 May 2010

STATUS: Immediate

Wilma van Rensburg NO & Another v Perapanjakam Naidoo NO &
Others; Perapanjakam Naidoo NO & Others v Wilma van Rensburg NO
& Another

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today handed down judgment in two related
appeals. First, it upheld an appeal against an order of Van der Byl AJ (Eastern
Cape High Court), in terms of which he purported to declare parts of a
judgment of Froneman J, in the same division of the high court, to be of no
force and effect and made certain allied orders. Second, the SCA dismissed an
appeal against an order of Dambuza J, in terms of which she reviewed and set
aside a decision of the Member of the Executive Council of Local Government
and Traditional Affairs, Eastern Cape Province (MEC) granting consent for the
amendment of certain title conditions in respect of Erf 105, Summerstrand, Port
Elizabeth, the property of the Shan Trust.

The opposing litigating parties are trustees of the Hobie Trust and the Shan
Trust respectively. The Hobie Trust and Shan Trust are abutting neighbours in
Summerstrand Township, Port Elizabeth. The Hobie Trust acquired erf 104 in
1989, whilst the Shan Trust acquired erf 105 in 1996. Both properties were
subject to the restrictive conditions which in turn were subject to alteration and

amendment by the then Administrator of the Cape Province. The restrictive
conditions were to the effect that the properties were to be used only for private
residential purposes.

At the time of acquisition of Erf 105, the only improvements were a main
building and a double garage. The Shan Trust thereafter started effecting a
number of improvements and erecting additional buildings on the property in
three phases in furtherance of its guest house business. The municipality had
granted the Shan Trust special consent to operate a guest house – initially four
rooms for hire – later 11 rooms, subject to certain conditions. The Shan Trust
did not adhere to the conditions imposed and the municipality withdrew the
special use consent in 2007. The improvements, referred to above, were more
often than not effected without the necessary approvals of the municipality.

The Hobie Trust subsequently launched an application against the municipality
and the Shan Trust for an order to demolish the offending buildings and for the
Shan Trust to cease operating business unlawfully. The application was heard
by Froneman J, who, on 30 March 2007, after considering restrictive conditions
and repeated transgressions by the Shan Trust ordered it to demolish the
offending structures within 60 days of the order. The Shan Trust applied for
leave to appeal the decision. The application was dismissed by the SCA and the
Constitutional Court. This rendered Froneman J’s judgment final. The Shan
Trust however failed to comply with the order.

On 27 June 2007 the Shan Trust applied to the Premier of the Eastern Cape
Province, for the removal of the restrictive conditions. On 16 October 2007, the
MEC purported to grant the said application.

The Shan Trust subsequently applied for an order to declare certain parts of
Froneman J's orders to be of no force or effect and to suspend the remaining
orders. In the meantime, the Hobie Trust instituted review proceedings to have
the MEC's decision set aside.

Van der Byl AJ, who heard that application, sitting as a court of first instance,
suspended and nullified the orders granted by Froneman J. The review
application referred to above in terms of which the decision by the
Administrator to remove the restrictive conditions was sought to be reviewed,
was subsequently heard and the MEC's decision was set aside by Dambuza J.
The decision was reviewed and set aside.

In regard to that decision, the SCA held that the decision by the MEC
constituted administrative action as defined in the Promotion of Administrative

Justice Act 3 of 2000 (PAJA) and that the MEC was obliged to consider the
objections of the Hobie Trust and other affected residents before making the
decision in that regard ─ the MEC had made the decision without reference to
the written objections of the Hobie Trust. This court held further that the MEC
lacked the statutory authority to make the decision as there had been no proper
delegation from the Premier of the Province, the successor to the Administrator.
The SCA thus held that the MEC's decision was rightly reviewed and set aside.
It dismissed the appeal by the Shan Trust.

In regard to the decision of Van der Byl AJ the SCA found that the learned
judge had failed to appreciate the full import of Froneman J's judgment and re-
engaged on issues already decided by the latter. It held that Van der Byl AJ did
what he was not empowered to do when he declared an order of equal
jurisdiction to be of no force and effect. The court held that although a court has
inherent jurisdiction to order a stay of execution or to suspend an order, such
discretion must be exercised judicially and that in this case Van der Byl AJ
erred in suspending the order. The SCA thus upheld the appeal by the Hobie
Trust and set aside the order by Van der Byl AJ.

--- ends ---