De Freitas v Somerset West Municipality

• Jurisdiction: South Africa
• Judge: Farlam J
• Judgment Date: 02 August 1995
• Hearing Date: 30 March 1995
• Docket Number: 16185/93
• Citation: 1997 (3) SA 1080 (C)
• Court: Cape Provincial Division
• Counsel: T Tockar for the applicant J A Le Roux for the respondent

Farlam J:

Applicant in this case seeks an order against the respondent declaring that he has properly complied with all respondent's requirements for the incorporation of C erf 4698 into the Somerset West municipal area, the subdivision of the property into erven as demarcated on an annexure to the founding affidavit and the rezoning of the property for single residential, open space and road purposes.

Respondent's opposition to the application is based on the contention that one of the conditions to which its approval was subject, namely that plans for proposed internal D services to be constructed on the property had to be approved by its Town Engineer, has not been satisfied because, so it avers, the plans submitted were not in fact approved by the Town Engineer. In the alternative respondent submits that if the Town Engineer did approve the plans he was entitled thereafter to change his mind and E withdraw his approval, which he did. In the further alternative, respondent contends that if the Town Engineer was functus officio and not entitled to withdraw his approval this Court should set his approval aside, insofar as it relates to five of the erven in the subdivision, viz erven 9786, 9788, 9789, 9790 and 9791 because it was given as a result of a factual assumption he mistakenly made, viz that the stormwater F drainage system was so designed that it could accommodate peak storm water runoff such as is experienced once in every 50 years (in the argument this was described as a 1:50 year flood).

Applicant opposes respondent's application for the setting aside of the Town Engineer's approval of the plans on various grounds which I shall summarise later in this judgment. G

It is common cause that applicant's engineer, Mr L de Beer, submitted a revised plan in respect of the stormwater drainage system to respondent on 11 May 1992. From that time the plans were dealt with as if there were no further outstanding problems in H regard thereto. It is also common cause that applicant and Mr De Beer were brought under the impression that the plans were passed. Although respondent's Town Engineer, Mr H W Roux, says at one point in his affidavit that he never officially and/or in writing approved the plans, he admits that he treated them as if they were approved.

After a meeting held on 4 February 1993, attended by, inter alios, the Town Clerk I and Mr Roux, a letter was written, on 23 February 1993, by the Town Clerk to applicant's attorneys in which it was stated that Mr Roux took notice of the plans. In response to a query from applicant's attorneys as to what was meant by the statement that Mr Roux took notice of the plans, the Town Clerk replied that the plans were not disapproved ('nie afgekeur is nie'). J

Farlam J

At p 60 of the papers Mr Roux himself concedes that he did approve of the plans A because he refers to the 'gebeure rondom die indiening van die stormwater dreineringsplanne en my goedkeuring daarvan'. (My emphasis.)

It is also common cause that rates clearance certificates have been issued by B respondent in respect of some of the subdivided erven which have in fact been sold by applicant and transferred to...