The litigation concerned neighbouring properties in Summerstrand, Port Elizabeth. The Hobie Trust owned erf 104, while the Shan Trust owned the adjoining erf 105, on which it operated a guest house. Title deed restrictive conditions limited erf 105 to a single residential dwelling for a single family. Despite this, the Shan Trust expanded and altered buildings on erf 105, often without prior municipal approval, and operated a guest house beyond the permitted scope. The Municipality granted zoning departures and approved building plans ex post facto, but these were successfully challenged by the Hobie Trust. In 2007, Froneman J set aside the municipal approvals, ordered demolition of unlawful structures, and enforced the restrictive conditions. After failed appeals, the Shan Trust applied to the MEC to remove the restrictive conditions. The MEC purported to do so without considering the Hobie Trust’s written objections. Relying on the MEC’s decision, the Shan Trust obtained an order from Van der Byl AJ declaring parts of Froneman J’s order ineffective and suspending demolition. The Hobie Trust then successfully reviewed the MEC’s decision before Dambuza J, who set it aside. Two linked appeals to the Supreme Court of Appeal followed.
In case no 155/09, the appeal was upheld and the order of Van der Byl AJ was set aside and replaced with an order dismissing the Shan Trust’s application with costs. In case no 455/09, the appeal was dismissed and the order reviewing and setting aside the MEC’s decision was confirmed. The Shan Trust’s legal representatives were barred from recovering a portion of the costs relating to unnecessary duplication in the record.
The case reaffirms the primacy of restrictive title deed conditions over zoning schemes in South African property law, clarifies that such conditions confer enforceable real rights on neighbouring owners, and confirms that their removal constitutes administrative action subject to PAJA. It also underscores limits on the powers of High Courts of equal jurisdiction to interfere with final orders and strengthens procedural fairness requirements in land-use decision-making by provincial authorities.