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TODAY'S ALERTS

4 December 2024

2 December 2024

BHOOPCHAND AJ

CIVIL LAW – Church and Mosque – Validity of board meetings – Whether board was properly constituted – Constitution’s requirement that board must include at least two persons who are spiritual leaders – Board had only one such member at meeting – Board not properly constituted – Failed to comply with obligatory prescripts of constitution – Board remained improperly constituted until obligation was resolved – Decisions and resolutions taken at meeting are invalid, null and void.

Facts and issue: The applicant seeks orders declaring that two meetings held by the board of the Church were invalid and that all decisions and resolutions adopted at those meetings are void. The applicant seeks ancillary relief against the respondents. They are to attend a meeting to be called by the applicant to enable the appointment of two spiritual leaders from KCI-UK, alternatively one, to the board and to pay the costs of this application. The parties agreed that the declaratory relief sought depended upon whether the board was properly constituted.


Discussion: The court interpreted the clauses material to the adjudication of this application according to the established principles of interpreting legal documents. It considered the case cited by the applicant as authority for the situation where the number of church council members fell below the minimum threshold. The 2011 case permitted the remaining council members to overcome an obligatory clause in its constitution without reverting to its congregation, provided that the constitution allowed for the substitution of members once a vacancy arose. The legal principles applied to this application meant that the board comprising the applicant and the respondents had a duty to appoint a qualified member, i.e., a spiritual leader from KCI-UK, to its board before it could conduct the business of the Church. The constitution of the Church contained a clause to members after the inaugural appointees.


Findings: The proper interpretation of the 2017 constitution leads to the ineluctable finding that the meeting held by the respondents was not properly constituted as it did not comply with the obligatory prescripts of the constitution. Clause 8.2 required appointing two spiritual leaders from KCI-UK to the Board. It stood as an insurmountable obstacle to the respondents. The board remained improperly constituted until the obligation was resolved. The respondents were a group of individuals meeting and not a meeting of the Church Board. As long as the board was improperly constituted, the decisions the group of individuals made had no legal force or effect. The court finds that the board convened by the respondents on 22 June 2022 and the decisions and resolutions taken at that meeting and those taken at the 15 November 2022 meeting are invalid, null and void.


Order: It is declared that the purported meeting of the board of the Church held by the first to third respondents was invalid and a nullity and that all decisions and resolutions adopted at that meeting are invalid and null and void. It is declared that all decisions and resolutions adopted at the purported meeting of the board of the Church on 16 November 2022 are invalid and null and void.

25 November 2024

MAZIBUKO AJ

CIVIL PROCEDURE – Organs of state – Notice – Debt arises when creditor acquires a complete cause of action for recovery of debt – Prescription commenced running after appellants were released from custody following Constitutional Court’s vitiating of their conviction and sentences – Not when appellants were first detained – Appeal upheld – Order of court a quo set aside and replaced – Cross-appeal of prescription dismissed – Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3.

Facts and issue: The appellants instituted an action against the respondent (the Minister) for their wrongful detention and deprivation of liberty between 2004 and 2012; alternatively, 2006 and 2012, in consequence of the failure of the Minister to provide them with a complete record of the criminal trial proceedings. The Constitutional Court subsequently upheld their appeals and set aside both their convictions and sentences. The Minister raised two special pleas. The first was one of prescription, and the second was one of non-compliance with the provisions of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.


Discussion: Since the court a quo was hearing issues relating to the trial, it had jurisdiction. It was competent and obligated to hear the appellants' condonation application and determine the issue of liability. There is no legal impediment against a trial court hearing an application for condonation in circumstances such as the present. Furthermore, in regard to the argument that different courts should hear the condonation application and determine the liability, there is no obstacle to both being heard by the same court. It is a matter of convenience and efficiency and subject to the rights of all being respected. A court must conduct itself in the determination of disputes in an efficient manner. In this regard, the court a quo misdirected itself. The Minister argued that the debt arose in October 2012 when the appellants were provided with the complete record of trial proceedings. Therefore, the summons issued in October 2016 was issued after a three-year lapse. This is incorrect.


Findings: Had the court a quo considered the application, it would not have ignored the fact that the first appellant's notice, which contained all the relevant information necessary for the investigation of the matter, was delivered to it timeously. The Minister was a party to the litigation before the Constitutional Court, knew the facts and circumstances as they unfolded in the lead-up to the hearing before that court, and was conversant with the entirety of that record before that court. It could never have been argued, and it was not, that the Minister was prejudiced in any way. The special plea was raised at the 11th hour to derail the proceedings, much in the same way as the rule 30 notice was raised before this court. There was no prejudice to the Minister in consequence of the delivery of the section 3 notice by the second and third appellants 2 months and 25 days out of time.


Order: The appeal is upheld, and the cross-appeal is dismissed. The plaintiff's application for condonation is granted with costs.

22 November 2024

NHARMURAVATE AJ

COMPANY – Winding up – Disposition – High Court confirmed that company was engaged in an unlawful Ponzi scheme – Decision meant that all payments made by company to respondent became due and payable – Respondent was indebted to liquidators when transactions were made – Disposition was made using illegal payments received from company – Monies transferred for purposes of purchasing farm amounted to disposition without value – Transactions are impeachable – Payments set side – Insolvency Act 24 of 1936, s 26(1).

Facts and issue: This is an opposed application brought by the applicants in their capacity as joint liquidators of the Joshua Iginla Ministries NPC (JIM NPC) who are seeking to set aside the payments amounting to R3,986,869.25 which were used to purchase a farm in the respondents name as a disposition without value as contemplated in terms of section 26 of the Insolvency Act 24 of 1936. Alternatively, a set aside of these  payments is sought in terms of section 31 of the Insolvency Act as they amount to collusive transactions.


Discussion: JIM NPO was finally liquidated in terms of the court order, and it had a history of receiving various sums of money from an entity known as the Supreme National Stock holdings Pvt (SNS) Ltd which was also liquidated finally by the court order issued by the KwaZulu Natal division in Pietermaritzburg High Court. SNS defrauded unsuspecting members of the public approximately R650 million by conducting a Ponzi scheme as declared by the KwaZulu Natal High Court. Due to the  High Court’s findings a provisional winding up order of JIM NPC was brought by the liquidators of SNS on the basis that it was unable to pay its debt commercially, it was insolvent. This was due to the reason that it had to repay the R8, 2 million which was received from SNS as per the court order due to it being a voidable disposition. After the applicant’s appointment as joint liquidators they then found that Jim NPC was not retaining any monies received from SNS the various funds were allegedly splurged by the entity on all kinds of people, entities and items. These funds were simply dissipated in total as per the records, some of the funds were also utilized by the respondent to purchase the immovable property as the said monies were gifted to him by JIM NPC.


Findings: When the High Court confirmed that SNS was engaged in an unlawful Ponzi scheme, that decision meant that all payments made by SNS to JIM NPO retrospectively became due and payable. Accordingly, when the transactions were made, JIM NPC was indebted to SNS liquidators for R8,2 million. The respondents were not able to prove by any documentary evidence that when the money was transferred to purchase the farm JIM NPC was solvent or immediately thereafter JIM NPC was solvent. The disposition was made using illegal payments received from SNS. Subsequent to that a farm is bought without adding any value to JIM NPC which is not denied by the respondents. The transfers which were transferred for the purposes of purchasing the farm amounted to a disposition without value which falls with section 26(1)(a) of the Insolvency Act. These transactions are impeachable as envisaged in the insolvency Act. The respondents could not demonstrate the value received by JIM NPC in exchange of the purchase therefore these amounts stand to be set aside with costs.


Order: The payments made by the liquidated entity Joshua Iginla Ministries NPC for the benefit of the first respondent amounting to R3,986,869 in purchasing the farm are set side in terms of section 26(1) of the Insolvency Act of 1936. The first respondent alternatively the respondents are ordered to pay the sum of R3,986,869.25 to the applicants with interest at 7.25 per annum until date of final payment.

22 November 2024

MATSEMELA AJ

CONSTITUTION – Constitutional damages – Delictual claim available – Seeking constitutional damages for violation of rights – Constitutional damages are not appropriate relief where a claimant could be compensated by delictual damages – Applicants can pursue a delictual claim to vindicate constitutional rights – Must prove all elements of a delict before being compensated – Claim not appropriate where delict can be remedied by common law – Application dismissed – Constitution, s 38.

Facts and issue: This action is an application for a declaratory order to declare that the respondents have failed to comply with the remedial action of the public protector; the court to direct that the respondents be ordered to comply with the remedial action of the Public Protector; the court to order that the respondents to “make an offer of an ex- gratia payment’’ as appropriate relief to compensate the applicants. The applicant seeks that the court award constitutional damages for violation of rights. He seeks an ‘’appropriate’ ’relief as a result of alleged financial prejudice suffered by the applicant.


Discussion: The applicant alleges financial prejudice of +-R140,000 and loss of opportunity to tune of R2,000,000. The Public Protector issued remedial action which can be found on page 77 of the Public Protector’s Report. The first remedial action says that within 60 days Seda was to make an ex-gratia payment to the complainant as compensation. The Public Protector quantified the loss suffered by the applicants to R35,450. Seda proposed a settlement with the applicants and drafted a settlement agreement for the amount as quantified by the Public Protector. The applicants rejected the settlement offer. There was compliance with the remedial action proposed by the Public Protector and the applicants rejected the offer. The concept of appropriate relief in terms of section 38 of the Constitution includes an award for constitutional damages. Constitutional damages are not appropriate relief where a claimant could be compensated by delictual damages because that, is a powerful vindication of constitutional rights.


Findings: Where a violation of a constitutional right involves the commission of delict, an award of constitutional damages in addition to those available under the common law will seldom be available. If a common law remedy exists, a claimant must first have recourse to that remedy. The applicants herein can pursue a delictual claim to vindicate their constitutional rights, they must prove all the elements of a delict before being compensated. A delictual claim does not cease to be a remedy simply because it may be onerous to prove. The respondent has fully complied with the remedial action on the public protector. The Public Protector has not issued any non-compliance notice or taken steps against Seda for non-compliance. There is no merit in the applicants’ claim.


Order: The applicants’ claim is dismissed with costs.

29 November 2024

BHOOPCHAND AJ

EVICTION – Risk of homelessness – Delays caused by occupant – Repeatedly waived right to emergency or alternative accommodation – Repeatedly declined to complete questionnaire – Appellant failed to raise any valid defence against application for eviction – Procedural requirements were satisfied – Lease was terminated – Failed to pay rent over prolonged period – Received notice to vacate – Magistrate gave appellant eight weeks to vacate – Appeal has no merit – Appeal dismissed.

Facts and issue: This is an appeal against the order of the Magistrate’s Court. The magistrate ordered the eviction of the appellant under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. The appellant, with her two daughters, aged 6 and 12, unlawfully occupied a fully furnished holiday apartment over a protracted period. She paid the rent for the first week on a seven-day short-term lease, then the rent for the second week, and secured a longer-term lease from the respondent. The appellant did not pay any further rent.


Discussion: The appellant has occupied the apartment with her two minor daughters since 17 August 2022 and in unlawful occupation since December 2022. The appellant has, by deduction, not paid any rent for the whole period of occupation except for the first two weeks. The longer-term lease has since been cancelled. There were two applications for eviction, the second being the subject of this appeal. The appellant, in addition, charged one of the respondents for harassment. The magistrate was informed that the appellant’s previous attorney had withdrawn as the appellant would not cooperate in complying with the court’s orders, including completing the housing questionnaire. The applicant’s disinclination to complete the questionnaire featured largely in the questioning that led to the magistrate denying her a postponement for want of legal representation. An assessment of the circumstances leading to the appellant being unrepresented, the conduct of the hearings where the appellant was unrepresented, the interests of the respondents and ultimately that this was not raised as a ground of appeal, or a review leads the court to conclude that absence of legal representation did not amount to a miscarriage of justice.


Findings: The magistrate complied with section 4(8) of PIE. The appellant did not raise any valid defence against the application for her eviction. She could not, as the procedural requirements were satisfied, the lease was terminated, she had not paid rent over a prolonged period, she received notice to vacate the apartment, and there were no defects in the procedure followed to evict her legally. This was the second application for an eviction, the first ending in a technicality that may have been decided incorrectly against the respondent as it had from being in charge of the apartment, the necessary locus standi under PIE to seek the eviction of the appellant. The magistrate gave the appellant eight weeks to vacate the apartment, failing which, she would have been evicted by the Sheriff a week later. These periods are eminently reasonable. Almost nine months have elapsed since the eviction order was granted. The appellant has had ample time to secure employment and can attend to her children's schooling if they need to be relocated to another school.


Order: The appeal is dismissed with costs.

28 November 2024

PRINSLOO J

LABOUR – Private arbitration – Review – Applicable test considered – Grounds of review relate to manner in which arbitrator functioned, not to outcome of arbitration – Applicant seeks to attack result of arbitration when such is not permissible in private arbitration proceedings – Applicant failed to show there was complete misconception of enquiry – Arbitrator exceeded powers when ordering applicant to pay administrative costs – Award partially reviewed and set aside – Arbitration Act 42 of 1965, s 33.

Facts and issue: The applicant seeks to review and set aside a private arbitration award issued in consequence of private arbitration proceedings agreed to between the applicant and the employer respondent. The parties concluded an arbitration agreement in which they agreed to the terms of reference for the conduct of the arbitration proceedings, which was conducted by the arbitrator. The applicant seeks an order to the effect that the arbitration award be reviewed and set aside and be substituted with one which finds that his dismissal was procedurally and substantively unfair and that he be reinstated with retrospective effect.


Discussion: By agreeing to refer their dispute to private arbitration the parties limit interference by court to the grounds of procedural irregularities as set out in section 33(1) of the Arbitration Act 42 of 1965. The consequence of agreeing to refer the matter to private arbitration is that the parties waive the right to rely on any further ground of review be it 'common law' or otherwise. The first three grounds of review relate to the manner in which the arbitrator functioned, not to the outcome of the arbitration. The fourth ground, i.e where the award has been improperly obtained, is also a ground which relates to function. The applicant stated that the arbitrator arrived at conclusions and made findings that no reasonable commissioner could have arrived at and that his conclusions constituted gross irregularities in the proceedings. It is ill-conceived, the test of reasonableness finds no application and a gross irregularity as provided for in the Arbitration Act is different from the applicant’s understanding as to what would constitute such irregularity. The applicant evidently seeks to attack the result of the arbitration when such is not permissible in private arbitration proceedings.


Findings: The second ground for review is premised on the outcome of the arbitration proceedings and the findings or conclusions made by the arbitrator. This is not permissible in the review of a private arbitration award. The third ground for review relates to the arbitrator’s incorrect application of the legal principles pertaining to cost orders in employment related disputes when he arrived at a punitive cost order against the applicant, which resulted in a failure to exercise his discretion judicially. The arbitrator exceeded his powers when he ordered the applicant to pay the administrative costs. The issue of administrative costs was agreed upon between the parties and it was specifically excluded from the issues the arbitrator had to decide. The arbitrator’s order that the applicant should pay the administrative costs is to be reviewed and set aside.


Order: The arbitration award is reviewed and set aside only in respect of the arbitrator’s order that the applicant is to pay the administrative costs. The remainder of the arbitration award is not reviewed.

26 November 2024

WHITCHER J

LABOUR – Suspension – Six month limit – SALGBC Disciplinary Procedure Collective Agreement – Ruling directed that suspension must not be extended beyond six month limit – Municipal manager ignored chairperson’s ruling – Extended applicant’s suspension – SALGBC issued a compliance order – Also ignored – Alleged contempt – Evidence established that award was complied with when applicant returned to work – Failed to prove contempt – Application dismissed.

Facts and issue: The applicant seeks an order declaring the respondents are in contempt of an arbitration award issued by the commissioner. The applicant was served with notice to attend a disciplinary hearing. The applicant moved for his suspension to be lifted. The presiding officer found that the applicant’s must not be extended any further than 20 March 2023. The municipal manager decided to ignore this ruling, because in his view the chairperson had acted “ultra vires”, and instead extended the applicant’s suspension.


Discussion: The SALGBC issued a compliance order directing the respondents to comply with the ruling and lift the suspension. This order was also ignored. By then the applicant had in effect being on precautionary suspension for 10 months. The municipal manager addressed to the applicant a notice of intention to place him on precautionary suspension and invited him to show cause why it should not be implemented. The applicant responded that the suspension would amount to contempt of the arbitration award. The municipal manager contended that the respondents had complied with the award when the applicant returned to work and that the intended suspension was a new and separate one and necessitated by the circumstances described in the earlier notice. The municipal manager submitted to this court he is not in contempt of the arbitration award. He reasoned that the suspension implemented on 20 September 2022 was the subject of the arbitration award and that that suspension was lifted on 2 November 2023 when the applicant was permitted to return to work; the suspension implemented on 12 February 2024 was a ‘‘new’ suspension necessitated by “new facts” explained in the notice to the applicant and it is not the subject of the arbitration award.


Findings: Clearly, the municipal manager did not comply with the ruling on 20 March 2023 or soon thereafter and in fact did the opposite when he commenced an extension of the suspension on 22 March 2023. However, these contempt proceedings relate to the award issued on 20 October 2023 and the evidence established that the award was complied with on 2 November 2023 when the applicant returned to work. On the facts, the suspension that was the subject matter of the ruling made on 20 March 2023 and 20 October 2023 was lifted on 2 November 2023. The applicant has therefore failed to prove the Municipal Manager is guilty of contempt of court.


Order: The application is dismissed.

27 November 2024

MALINDI AJA

LABOUR – Jurisdiction – CCMA – Section 186 claim for unfair labour practice – Disputed issues were subject of a lock-out – Appellants’ contracts were reinstated fully, save for substitution of medical aid – Negotiations reached maturity with employer issuing lockout notice – Labour Court found that CCMA lacked jurisdiction to entertain a section 186 claim for unfair labour practice – Judgment is unassailable – Employer’s lockout meets requirements – Labour Relations Act 66 of 1995, s 186.

Facts and issue: The issue in this appeal is whether the CCMA lacked the jurisdiction to arbitrate an unfair labour practice dispute in circumstances where the issues in dispute were the subject of a lock-out. The commissioner issued a ruling under the auspices of the CCMA holding that the dispute concerned an unfair labour practice and thus, that the CCMA had jurisdiction to arbitrate the dispute between the parties. Woolworths approached the Labour Court seeking an order to review and set aside the ruling issued by the commissioner on various grounds. The Labour Court issued a judgment reviewing and setting aside the ruling of the CCMA and substituting it with an order that the referral was dismissed for want of jurisdiction.


Discussion: This appeal has to be considered in the context of the Constitutional Court having urged the parties to enter negotiations regarding whether the parties can reach an agreement on the implementation of the flexi 40 contract. The flexi 40 which has been accepted by the employees after the retrenchment process in 2012 would constitute terms of remuneration and benefits to the appellants which have not yet accrued to them. At this stage, the appellants referred to an ULP in respect of benefits which they enjoyed under the pre-existing contracts in the form of a medical aid scheme. They also sought the benefit of an extended retirement age of 63 which did not exist in the pre-existing contract but does under the Flexi 40. The key findings of the Labour Court were that on the objective facts, the dispute between the parties was Woolworths’ refusal to continue to pay the employees on the pre-existing contract of a 45-hour week remunerating them on the flexi 40 contracts like the rest of the employees. Woolworths did this by issuing a lockout notice in terms of section 64(1) of the Labour Relations Act 66 of 1995 as it considered negotiations to have failed on the flexi 40 between November 2018 when the Constitutional Court issued its order and December 2020, some two years later.


Findings: The appellants’ contracts were reinstated fully, save for the substitution of Wooltru Medical Aid with Discovery Medical Aid. Since all other employees were employed in terms of the flexi 40 contract and the Constitutional Court had urged the parties to start where they had stopped in 2012 when the appellants were dismissed after a section 189 of the LRA retrenchment process and that these negotiations reached maturity with the employer issuing a lockout notice, the Labour Court found that the CCMA lacked jurisdiction to entertain a section 186 of the LRA claim for unfair labour practice. This judgment is unassailable, and the employer’s lockout meets the requirements of the LRA.


Order: The appellant’s appeal is dismissed.

19 November 2024

MNCUBE AJ

MUNICIPALITY – Electricity – Disconnection – Urgency – Requirements – Contention that because matter involves supply of electricity it is inherently urgent – Unconvincing – Averment that applicant has contractual obligation to tenants not sufficient to render matter urgent – Account has fallen into arrears – Provides respondents with legal recourse to embark on credit control – Failed to prove urgency – Has substantial redress in terms of section 5.4 of Credit Control By-laws – Application is struck from roll for lack of urgency.

Facts and issue: The applicant is a registered owner of the premises which is currently leased. The applicant did not immediately open an account with the respondents which led to an adjustment being done on his account during. There is a contractual agreement between the applicant and the respondents in respect of services to the premises. The applicant’s account is in arrears to the sum of R131,038,56. The respondents disconnected electricity supply to the applicant’s premises which caused the applicant to launch an urgent application declaring the disconnection unlawful and directing the respondents to reconnect the electricity supply to the premises.


Discussion: The contention is that the applicant has a constitutional right to access to electricity which is being infringed by the respondents. A concession is made that the respondent has a right to disconnect the supply of electricity for unpaid rates and services only as governed by section 21 of the Standard Electricity Supply By-laws. The contention that counsel for the applicant makes is that because this matter involves the supply of electricity it is inherently urgent and warrants it to be heard as a matter of urgency. The applicant’s averments on why he claims that the matter is urgent is with respect unconvincing. The applicant’s averment that he has a contractual obligation to his tenants is not a sufficient reason to render the matter urgent. The contention that the amounts that the applicant owes is not for determination therefore immaterial is not correct. The arrears on the account is interlinked to the matter. If his account had not been overdue, then there would have been no legal basis for the Respondent to disconnect his electricity. To now cite his contractual obligations to his tenants does not constitute urgency as envisaged by Rule 6 (12).


Findings: The applicant avers that he has a right to the supply of electricity. Accepting for a moment that he has such a right, it is conditional to the payment for the services rendered by the respondents. On the facts, the applicant’s account with the respondents is in arrears. The fact that the account has fallen into arrears provides the respondents with the legal recourse to embark on credit control. The fact that there is provision in the By-laws for a consumer to make payment arrangement with the respondents means that there is a constitutional duty on the respondents to consider any payment proposals in a fair and reasonable manner to assist the consumer to settle overdue accounts. It is on this basis that the court is not persuaded that the averment of lack of subsequent redress is correct. The applicant has failed to prove urgency as he failed the test that he cannot be afforded substantial redress at a hearing in due course. He has substantial redress in terms of section 5.4 of the Credit Control By-laws as well as any other relief available in law.


Order: The application is struck from the roll for lack of urgency.

3 December 2024

FARLAM AJ

PROPERTY – Servitude – Sewerage pipeline – Constructed over applicant’s property – Whether irregularly or unlawfully constructed – City’s conduct involved administrative action – City could not enter private property to do work without expressly notifying owners – Failed to meet notification and consultation requirements – Could not proceed on that basis – Installation of sewerage pipeline over property was therefore unlawful – Removal directed – Order suspended for 15 months.

Facts and issue: This case is, at its essence, about a sewerage pipeline, which the City constructed over the property of the applicant (Rosevean), and which has been described by Rosevean as the “unsightly Pipe”, and by the City as the “secluded pipe”. The key questions are whether the City constructed the sewerage pipeline across Rosevean’s property in Hout Bay irregularly or unlawfully; and if so, what should be done about that at this stage, slightly more than four years’ later.


Discussion: The requirement of sufficient notification of and consultation with the landowner is consistent with the fact that the City’s decision to instal a sewerage pipeline over the Rosevean property would appear to constitute administrative action, with the result that the procedural fairness requirements in section 3 (and potentially, too, section 4) of the Promotion of Administrative Justice Act, 3 of 2000 would be applicable. There is nothing to indicate that the City notified Rosevean before installing the contentious sewerage pipeline. That was also doubtless why the City officials and Nejeni entered the Rosevean property via a neighbouring property, rather than via the front entrance. There can consequently also be no suggestion that Rosevean was advised by the City of what it was proposing to do. Whether deliberately or otherwise, the City officials did not contact Rosevean during September and October 2020 and were not even able to be reached by Rosevean’s representatives (who made various outreaches) until after the pipeline had been constructed.


Findings: The high-water mark of the City’s position is that Rosevean should supposedly have been aware that the City’s contractor, Nejeni, had entered its property via a neighbouring erf and was constructing a sewerage pipeline, but did not object. That is insufficient to meet the notification and consultation requirements. Notwithstanding its powers under clause 3.5.1 of the subdivision conditions, the City could not proceed on that basis. Its installation of the sewerage pipeline over the Rosevean property between 8 and 20 October 2020 was therefore unlawful. Rosevean is entitled to declaratory and directory relief against the City in respect of the contentious sewerage pipeline, albeit that this relief is to be suspended to avoid the prejudice that would otherwise ensue to the properties in and around Military Road.


Order: It is declared that the installation of a sewer line across the property of the applicant was unlawful. The order is suspended for a period of fifteen months from the date of this order. The first respondent is directed to remove the current sewer line from the applicant’s property by the end of the period of suspension.

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