The upmarket Featherbrooke estate on Johannesburg’s West Rand has won a court round in a protracted fight with the local municipality over a river, a boundary fence and a storm water drain.
But this is not the end of the road, as the Mogale City municipality says it plans to appeal a high court judgment in the estate’s favour.
It believes the river in question is not its responsibility.
The Featherbrooke Estate boundary fence in flood last week as the Mid Crocodile river in the West Rand burst its banks. Experts predict more rain across the country. pic.twitter.com/9woMSlsXOz
— Alex Patrick (@AlexPPatrick) February 5, 2021
Last month, judge Maletsatsi Mahalelo ruled in favour of the estate, saying the homeowners’ rights had been infringed upon and there was a risk to life and limb, human health and security.
This after Mogale City failed to convince the high court that it was the developer’s responsibility to ensure an adequate storm water infrastructure was provided when the complex was developed in 2002.
“There is prospective financial harm with every day that passes. The applicant has no other satisfactory remedy ... other than the respondents finding funds internally or externally to try to mitigate the risky condition of the river in question,” said the judge.
She ordered that the municipality immediately and in future do everything necessary to repair and manage the stream beds adjacent to the Featherbrooke security fence.
The municipality also needs to update the estate on its work within 30 days of the order on January 25.
Lawyer Hans Badenhorst, who lives on the estate, took on the case on behalf of the Featherbrooke Homeowners Association NPC.
Badenhorst said the problem was a lack of service delivery in the area.
He said the developments upstream of the Witpoortjie Falls — which lay in the Walter Sisulu National Botanical Gardens, and flows into the Crocodile River — prevented water from being absorbed into the soil. That increased the overflow into the Muldersdrift Se Loop river around the estate.
“The volume of the river has doubled in 10 years — and it was already bad then. Each time a new house is developed upstream, the ground is covered with paving or foundations so water cannot seep into the ground. Instead it goes into the stormwater drains upstream and ends up in the river.
“What should happen is that that water should be dammed and released slowly.
“After 10 years of complaints we just couldn’t take it any more and we had to turn to the courts.”
The estate had over the years lost up to 30m of its boundary fence in places, and its costs of repair were more than R6.5m.
“The total cost for the municipality to fix it now is about R60m and climbing every day. Whereas if they had fixed it 10 years ago [when Featherbrooke first complained] it would have been affordable,” said another resident closely involved in the process.
The recent flash floods exposed a main sewer system and power lines downstream were flooded.
“People are going to get hurt ... especially if we get another big storm,” he said.
Featherbrooke Estate part of the Mogale City Local Municipality has experienced severe flooding for the past ten years. This video from 2014 helped them win a case against the municipality to have the river infrastructure repaired so it doesn't happen again this year. pic.twitter.com/rDHwDpOvM5
— Alex Patrick (@AlexPPatrick) February 5, 2021
Badenhorst said the order was an interim one, which meant the municipality had to comply.
“We don’t expect much from them. We will now have to wait and see what happens.”
He said the excuse that the developers should have built better infrastructure was a farce because it was the Mogale City local municipality that had approved the development [in February 1996] in the first place.
“We feel exonerated. This needs to be an example to local government.”
But the municipality has not begun work on the river because it will contest the judgment, Mogale City Legal Division assistant manager Vincent Mashosho told Sunday Times Daily.
It planned to appeal for several reasons, including a question around the ownership of the river.
“The learned judge made a finding that the river, Muldersdrift Se Loop, is owned by the minister. Ownership of the river creates certain statutory and legal obligations on its owner, in this case the minister.
“For reasons unclear to us, the learned judge then made an order that directed the municipality to remediate the flooding which is caused by the flow of water into the river — the river which the court found is not owned by the municipality but by the minister.”
