THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
CASE NO. 484/2004
In the matter between

DIRK LEONARDUS EHLERS
First Appellant
A W WESSELS N.O.
Second Appellant
M F C WESSELS N.O.
Third Appellant
G L BISHOP N.O.
Fourth Appellant

and

RAND WATER BOARD
Respondent
____________________________________________________________

CORAM:
MPATI DP, ZULMAN, CAMERON, NUGENT JJA and
COMBRINCK AJA

HEARD:
18 NOVEMBER 2005
DELIVERED:
30 NOVEMBER 2005
____________________________________________________________
Summary: Removal of habitable buildings and structures in a Sectional
Titles Scheme deemed to be a Regional Structure Plan in terms of s
37(2)(a)(i) and (ii) of the Physical Planning Act 125 of 1991 requiring,
inter alia, written consent for habitable buildings or structures to be
permitted below the defined flood control line.

______________________________________________________________________

JUDGMENT
____________________________________________________________

ZULMAN  JA

[1] This is an appeal against a judgment ordering:
1.1
The first appellant (the fifteenth defendant in the court a quo) to
remove all habitable buildings and structures, including toilets and drains,
on units 18 and 19 of the Sectional Titles Scheme known as Klub 40 (the
Scheme) within 120 days of the order.
1.2
The appellants to pay the costs of the action (limited in the case of
the second, third and fourth appellants (the tenth, eleventh and twelth
defendants in the court a quo) to the costs incurred prior to the preparation
for trial).
The appeal is with the leave of the court a quo (Van Coppenhagen J).
[2] The first appellant is the owner of two sectional title units in the
Scheme. The second, third and fourth appellants, are parties to the appeal in
their capacities as trustees of the AWW Trust (the Trust), which owns unit
14 in the Scheme. The Scheme was built on a part of the farm Anniesrus
763 in the district of Sasolburg and falls within the Vaal River Barrage area
and is riparian to the Vaal River.
[3] The respondent instituted action in the court a quo against twenty

seven defendants, including the appellants, who were all owners, or who
represented owners, of units in Klub 40, for the demolition of the habitable
buildings on their respective units. The basis of the relief claimed was that
the defendants, or their predecessors in title, had erected buildings below
the defined flood control line, without the written consent of the
respondent.
[4] When the matter was heard by Van Coppenhagen J all the
defendants, except the appellants and the thirteenth defendant, concluded
settlements with the respondent, which were made orders of court. In terms
of the settlements they conceded the substantive relief claimed by the
respondent. Default judgment was granted against the thirteenth defendant.
Only the first appellant persisted in his resistance to the relief claimed by
the respondent. As the Trust had altered the buildings on its unit, to the
satisfaction of the respondent, before the trial started, only a limited costs
order was granted against the second, third and fourth appellants.
[5] The members of Klub 40 were originally tenants of the farm owner,
Mr P J Malan, who let parts of the river front to them. Malan in turn
transferred the land on which the units were situated to a company,
Anniesrus Ontwikkelings (Pty) Limited (the Company), of which he was
the only shareholder and director. The Company was cited as the fourth
defendant. The Company sold units indicated to various persons.
6.1
Since 1992 there were numerous problems with regard to structures

erected below the defined flood control line. Several meetings were held,
and much correspondence passed between representatives of the
respondent and Malan.
6.2
Malan and the tenants who were members of Klub 40 decided to
convert the Klub into the Scheme. The Scheme was registered on 30
January 1997.
6.3
The Surveyor General (the third defendant) required proof of
permission granted by the respondent for the erection of buildings on the
Sectional Title Plan submitted before registration of the Scheme.
6.4
A meeting was held on 7 May 1996 between the respondent,
represented inter alia by Mr F P du Plessis (du Plessis) who was a legal
adviser employed by the respondent who had dealt with the Klub 40
problem since 1991, and Malan, the latter accompanied by his attorney Mr
Bouwman, to discuss the illegal structures and plans for the proposed
sectional title development.
6.5
At the meeting agreement was reached with regard to which
structures were considered to be illegal by the respondent and which had to
be removed. This is evidenced in a letter dated 7 May 1996 sent by
Bouwman to the respondent which attached the proposed Sectional Title
Plan to it for approval.
6.6
Du Plessis replied in a letter dated 5 June 1996 and granted approval
for the proposed sectional scheme development. The condition was that the

scheme had to comply with the requirements of Annexure C to a Guide
Plan, to which I will refer presently, and that the undertakings set out in
Bouwman’s letter had to be executed.
6.7
A stamp of approval was placed on the plan and signed by
du Plessis. Such approval was intended to be conditional on behalf of the
respondent and was accepted to be conditional by Malan.
7.1
The Scheme is laid out within a strip of land 500 metres wide
measured from the edge of the water course (the relevant base line) and
which is situated on the Orange Free State side of the Vaal River between
the wall of the Vaal Dam and the north eastern boundary of Richmond
Village.
7.2
The property falls within the Vaal River Barrage area as defined in s
6A(a) of the Physical Planning Act1 by the Vaal River Complex Guide Plan
(the Guide Plan)
7.3
After the repeal of s 6A by s 36(1)(a) read with schedules 1, 2, 3 and
4 of the Physical Planning Act, the Guide Plan remained in force by virtue
of s 37(1) of the subsequent Physical Planning Act. 2
7.4
On 9 February 19963 the Deputy Minister of Land Affairs declared
in terms of s 37(2)(a)(i) and (ii) of the Physical Planning Act, that sections
37(1)(c) and (d) of that Act would no longer apply to the Guide Plan and
that the Guide Plan would be deemed to be a Regional Structure Plan with

Act 88 of 1967
Act 125 of 1991
Government Notice 169

effect from that date (the Regional Structure Plan).
7.5
In terms of clause 5.4.1 of the Regional Structure Plan the area
where the Scheme is laid out falls within an area that must be protected
against injudicious use on account of ecological, aesthetic or recreational
value.
7.6
Clause 5.13 of the Regional Structure Plan reads as follows:
‘THAT the requirements for development, as set out in annexure  “C” shall apply to any
development in the riparian areas of the Vaal Dam and the Vaal River Barrage area;
THAT the Administrators, where at all possible, include those requirements for
development in all town planning or planning schemes in the area;
THAT the Minister of Health and Welfare, where at all possible make these
requirements for development applicable to the area by means of regulations in terms of
the Health Act, 1977 (Act 63 of 1977); and
THAT the Minister of Environmental Affairs take the initiative in the co-ordination of
action in order to combat pollution in the area as far as possible.’
7.7
Clause 2.2 of Annexure C reads as follows:
‘Except with the written consent of the Rand Water Board no habitable buildings or
structures, toilets, french drains, conservancy or septic tanks, sewage pumping
installations or sewage works shall be permitted below the flood control line, as
defined.’
7.8
In terms of clause 5.12 of the Regional Structure Plan the February
1975 flood line as determined by the respondent serves as the flood control
line as defined in the Vaal River Barrage area.
7.9
The first appellant acquired ownership of unit 18 from the Company

on 8 October 1998 and of unit 19 on 2 August 2002 from the Trust the
latter having acquired the unit from Lusanda van der Merwe who in turn
acquired it from the Company.
[8] The appellants contend that the requisite written consent of the
respondent is contained in a stamp on the plan referred to in du Plessis’
letter of 5 June 1996. The stamp reads as follows:

APPROVED on behalf of the
RAND WATER BOARD
IN TERMS OF ANNEXURE C
OF THE GUIDE PLAN FOR THE
VAAL RIVER COMPLEX 1982
Date/Datum 6/6/1996

GOEDGEKEUR namens die
RANDWATERRAAD
INGEVOLGE BYLAE C VAN DIE
GIDSPLAN
VIR
DIE
VAALRIVIER-
KOMPLEKS, 1982
(Get) ? du Plessis …………….
CHIEF EXECUTIVE /
UITVOERENDE
HOOF
RAND
WATER
BOARD
/
RANDWATERRAAD

[9] The objective evidence placed before the court a quo makes it clear
that no inference can be drawn other than that the approval of the plans was
conditional, as was correctly found by the court a quo. Accordingly, the
Company was not given the requisite consent by the respondent to have
habitable buildings on its land below the defined flood control line.
[10] The Company was bound by the statute to which I have referred and
so is its successors in title. Simply put the appellants did not have the
consent of the respondent to have any habitable buildings on the land
below the defined flood control line.

[11] In the absence of consent, and there was avowedly none, the
sectional title holders were themselves directly bound by the obligation in
the Guide Plan.
[12] The appellants also invoke the provisions of s 48(1)(a) of the
Sectional Titles Act4 by contending that any condition requiring demolition
of structures indicated on the Guide Plan would have rendered approval
and registration of the Sectional Title Plan ‘nonsensical’. It would
contemplate, from the outset, so the argument ran, the destruction of certain
sections as envisaged in s 48(1)(a) of the Act. This would require
rebuilding and re-instatement of the transfer of the interests of owners of
sections that had been destroyed to other owners, in terms of section 48(3)
of the Act. In my view the court a quo correctly found that section 48 of the
Sectional Titles Act does not apply to the circumstances which pertain in
this matter and that reliance thereon is accordingly inappropriate.
Furthermore even if s 48 were applicable this cannot override the statutory
consent required to be given by the respondent for the erection of habitable
structures below the defined flood control line.
[13] Finally the appellants submit that if the illegal structures were
removed this would cause the Sectional Title Plan to be incorrect, because
the plan would indicate structures no longer in existence. The witnesses
Malan and du Plessis stated that concrete slabs were shown on the

95 of 1986

Sectional Title Plan as structures. It was possible to alter the structures
suitably and to the satisfaction of the respondent, by removing walls, but
leaving the concrete slabs in place. Even if the Sectional Title Plan became
incorrect, this did not absolve the Company from its obligation to obtain
the respondent’s consent to erect habitable structures below the defined
flood control line.
[14] Counsel for the respondent submitted that costs consequent upon the
employment of two counsel by the respondent should be allowed in the
event of the appeal being dismissed. The court a quo awarded only the
costs of one counsel. In my view the costs of two counsel on appeal are not
warranted. The appeal is not one of undue complexity warranting the
employment of two counsel by the respondent.
[15] The appeal is accordingly dismissed with costs.

---------------------------------------

R H ZULMAN

JUDGE OF APPEAL

MPATI DP

)
CONCUR
CAMERON JA
)
NUGENT JA

)
COMBRINCK AJA
)