The Supreme Court of Appeal disallowed the appeal after holding that the municipal council’s resolution was valid and binding despite the failure of a council official to communicate the resolution correctly. The official was not empowered to make decisions on behalf of the council and his act was merely an administrative error and did not amount to any administrative action.Plover’s Nest Investment v De Haan (20590/2014) [2015] ZASCA 193 (30 November 2015) per Mhlantla JA (Lewis, Leach, Tshiqi and Majiedt JJA concurring):
Plover’s Nest Investment v De Haan (20590/2014) [2015] ZASCA 193 (30 November 2015) per Mhlantla JA (Lewis, Leach, Tshiqi and Majiedt JJA concurring):
Excerpts without footnotes
[1] This appeal concerns the approval by the second respondent, Bitou Local Municipality, formerly known as the Plettenberg Bay Municipality (the municipality), of building plans submitted by the appellant, Plover’s Nest Investments (Pty) Ltd (Plover’s Nest). The plans were in respect of extensions and additions onto in an area over which a neighbouring property had a servitude. The first respondent, Mr J W De Haan (De Haan), is currently the owner of the dominant tenement. He claims that the building extension plan approved by the municipality interfere with his rights of ownership in two main respects. He thus applied, amongst other things, for an order setting aside the municipality’s approval of the extensions on the basis that the decision to approve the building plans was unlawful. His application succeeded and the approval was set aside by the Western Cape Division of the High Court (Griesel J).
[2] The primary issue both before the court a quo and this court on appeal is whether conditions imposed on owners of unimproved erven, which were not communicated to them, and not registered against the title deeds of the respective properties, were binding on the owners. The other issue is whether De Haan’s rights under the servitude are impeded by the building that was approved. These rights include access to a pedestrian path to the public beach, which Plover’s Nest’s property faces, obtained by means of a right of way over it registered in favour of De Haan’s property in terms of a Notarial Deed of Servitude K 715/98 and a right to a view of the sea.