The City’s installation of a sewerage pipeline constructed over a Hout Bay property was declared unlawful in the Western Cape High Court this week.
The high court has ordered that the current sewer line which crosses the property, and is described by land owner Rosevean Investments as an “unsightly pipe”, is to be removed within 15 months.
According to the judgment handed down by Acting Judge Paul Farlam, the sewer line located on the slope of a mountain was installed during 2020 due to the disposal of sewerage from its location being “difficult”.
The City’s Mayco member for Water and Sanitation, Zahid Badroodien, said the City’s legal team was studying the judgment.
The judgment detailed that in October 2020, the City installed a sewerage pipeline over the Rosevean property, which connected a number of properties to the pipeline which ran from the Rosevean property into the municipal sewer.
“The new pipeline – while of considerable benefit to (two properties), whose properties had previously not been connected to the municipal sewerage system, and also useful to neighbouring properties – has been constructed above ground on the Rosevean property and snakes across a portion of the property, affixed to the top of wooden poles (about 1.5 metres above the soil), clad in what appears to be a brown wrapping. It was therefore not welcomed by Rosevean, which also alleges that it impedes the future expansion of its buildings,” the judgment read.
The installation of the contentious pipeline was predominantly due to sewerage problems at two properties that were not initially connected to the municipal sewerage system and were therefore reliant on a company collecting raw sewerage from tanks on their properties.
The sole director of the Rosevean property, who lives in Arizona, was represented by her foster son in a meeting held by neighbours, in the absence of a City official in October 2020 where the owner of a hotel, a respondent in the matter, gave an overview of the sewerage issue and his proposed solution and impressed upon those present the need to solve the sewerage problem.
“There is nothing to indicate that the City notified Rosevean before installing the contentious sewerage pipeline. That was also doubtless why the City officials and (the external contractor) entered the Rosevean property via a neighbouring property, rather than via the (Rosevean property’s) front entrance.
“Whether deliberately or otherwise, the City officials did not contact Rosevean during September and October 2020 and were not even able to be reached by Rosevean’s representatives (who made various outreaches) until after the pipeline had been constructed.
“The high-water mark of the City’s position is that Rosevean should supposedly have been aware that the City’s contractor, had entered its property via a neighbouring erf and was constructing a sewerage pipeline, but did not object.
“That is clearly insufficient to meet the notification and consultation requirements,” the judgment read.
Legal counsel for the Rosevean property owner, Arlene Duval, said: "Our client feels vindicated following the judgment ordering the City to remove a sewer line unlawfully installed across its property and relieved at the imminent restoration of its property rights and values following a lengthy and costly Court battle.
“This judgment is undoubtedly a victory and will be of benefit to all property owners in that it entrenches Constitutionally guaranteed rights to protection of property to prevent arbitrary deprivation and enforces principles of fairness, particularly those of respect and due caution.”
Cape Times