Dirk Leonardus Ehlers and Others v Rand Water Board

The respondent (Rand Water Board) instituted action against twenty-seven defendants who were owners of units in Klub 40, a Sectional Titles Scheme built on part of the farm Anniesrus in the Sasolburg district, riparian to the Vaal River. The respondent sought demolition of habitable buildings erected below the defined flood control line without its written consent. The members of Klub 40 were originally tenants who decided to convert to a sectional title scheme, registered on 30 January 1997. At a meeting on 7 May 1996, agreement was reached regarding illegal structures. Du Plessis, the respondent's legal adviser, granted conditional approval on 5 June 1996 and placed an approval stamp on the plan. The first appellant acquired unit 18 on 8 October 1998 and unit 19 on 2 August 2002. The property fell within the Vaal River Barrage area governed by the Vaal River Complex Guide Plan, deemed to be a Regional Structure Plan under s 37(2)(a)(i) and (ii) of the Physical Planning Act 125 of 1991. Annexure C clause 2.2 required written consent from Rand Water Board for any habitable buildings or structures below the flood control line. Most defendants settled; only the first appellant and others persisted in resistance.

• Whether the approval stamp placed on the sectional title plan by du Plessis constituted the requisite written consent of the respondent for habitable buildings below the defined flood control line
• Whether the conditional approval satisfied the statutory requirement for consent under Annexure C clause 2.2 of the Regional Structure Plan
• Whether s 48(1)(a) of the Sectional Titles Act 95 of 1986 prevented demolition of structures indicated on the sectional title plan
• Whether removal of illegal structures rendering the Sectional Title Plan incorrect absolved the appellants from obtaining the respondent's consent
• Whether the costs of two counsel should be awarded

The appeal was dismissed with costs. The order of the court a quo requiring the first appellant to remove all habitable buildings and structures (including toilets and drains) on units 18 and 19 within 120 days was upheld. The costs order against the second, third and fourth appellants (limited to costs incurred prior to preparation for trial) was also upheld. Costs of only one counsel were allowed.

The binding legal principles established are: (1) An approval stamp on a sectional title plan that is expressly conditional does not constitute the requisite written consent required by a Regional Structure Plan for the erection of habitable buildings below a defined flood control line; (2) In the absence of the requisite statutory consent, sectional title holders are directly bound by obligations contained in a Guide Plan deemed to be a Regional Structure Plan under s 37(2)(a)(i) and (ii) of the Physical Planning Act 125 of 1991; (3) Successors in title to property are bound by statutory obligations to obtain consent for habitable structures, regardless of when they acquired their units; (4) Section 48 of the Sectional Titles Act 95 of 1986 (dealing with destruction and reinstatement of sections) does not apply to circumstances where removal of structures is required for non-compliance with planning legislation, and even if applicable, cannot override statutory consent requirements under planning legislation; (5) The fact that removal of illegal structures may render a Sectional Title Plan incorrect does not absolve owners from their statutory obligation to obtain the necessary consent for habitable structures below flood control lines.

The court made non-binding observations that: (1) It was possible to alter structures suitably to the satisfaction of the respondent by removing walls but leaving concrete slabs in place, suggesting some flexibility in compliance methods; (2) The witnesses Malan and du Plessis stated that concrete slabs were shown on the Sectional Title Plan as structures, providing practical context for potential compliance solutions; (3) On the issue of costs, the court observed that the appeal was not one of undue complexity warranting the employment of two counsel by the respondent, thereby declining to award costs for two counsel on appeal despite the court a quo having awarded costs for only one counsel.

This case is significant in South African law for establishing the binding nature of regional structure plans and guide plans made under the Physical Planning Act 125 of 1991, particularly in relation to environmental and flood control requirements. It confirms that sectional title ownership does not exempt owners from compliance with statutory planning requirements, including obtaining necessary consents for habitable structures in environmentally sensitive areas. The judgment reinforces that conditional approvals do not satisfy statutory consent requirements, and that successors in title are bound by planning obligations imposed on their predecessors. It also clarifies that the Sectional Titles Act provisions regarding destruction and reinstatement of sections cannot override substantive planning law requirements. The case demonstrates the primacy of environmental protection and flood control measures over private property rights in sectional title schemes.