Johlene Wasserman<\/a>, Director of Community Schemes and Compliance at law firm Van Deventer Dowlath & Marx Incorporated.<\/p>\n\u201cStructural interdicts of this nature – compelling multiple state organs to act jointly – are rare in South African law and typically reserved for systemic governance failures,\u201d Wasserman says.<\/p>\n
She adds that the judgment sets an important national precedent for community schemes facing overlapping municipal and departmental inaction. \u201cFinally, residents have the outcome they\u2019ve been waiting for since the estate first approached the courts in May 2020,” she says.<\/p>\n
She explains that a river runs through Featherbrooke Country Estate, on the western edge of Mogale City. It is called the Muldersdrift se Loop, and somewhere on its way to the Hartbeespoort Dam, it stopped behaving like a stream.<\/p>\n
\u201cIt forms part of the ecological system that flows directly from the Walter Sisulu National Botanical Gardens – one of Gauteng\u2019s most important public natural assets. The deterioration of the river therefore posed not only a threat to a private estate but a broader environmental risk to a protected ecological corridor,” she says.<\/p>\n
Since around 2010, it has flooded the estate most years, eroding embankments and exposing sewer lines and underground power cables, and leaving residents to weigh the risk of electrocution against the risk of raw sewage.<\/p>\n
Wasserman says at one point, the estate\u2019s multi-million-rand perimeter security fence was practically hanging by a thread over the collapsing riverbank. \u201cThe erosion had eaten so deeply into the embankment that the fence\u2019s foundations were suspended in mid-air, creating a serious security risk for residents.”<\/p>\n
Court papers also revealed that a major sewer line had been dislodged and was running about one metre from the estate\u2019s boundary fence – a proximity that Wasserman says posed a serious ecological and public health danger if the line failed.<\/p>\n
For more than a decade, the homeowners\u2019 association tried in vain for the Department of Water and Sanitation, Mogale City, and the City of Johannesburg to assist by shifting the blame.<\/p>\n
\u201cIn 2020, the estate launched an application to address stormwater failures dating back to 2010. What followed was a sequence of setbacks: a wrongful dismissal, a remittal, a near-catastrophic cost order, and years of state inaction while the river system deteriorated.”<\/p>\n
Wasserman says a critical turning point came in March 2024 when the Supreme Court of Appeal (SCA) intervened. It set aside a previous Full Court ruling that had dismissed Featherbrooke’s entire application, keeping the lawsuit alive.<\/p>\n
The high court recently made it clear in a judgment that constitutional accountability cannot be avoided through technicalities. \u201cYou can\u2019t acknowledge a disaster risk and then hide behind licensing processes to escape responsibility,\u201d Wasserman says.<\/p>\n
Her lessons for trustees, HOA directors, bodies corporate, and managing agents include that infrastructure failures are legal risks. Stormwater, roads, riverbanks, and servitudes are not \u201coperational issues\u201d \u2013 they are governance and liability issues.<\/p>\n
She advises community schemes to act early. Problems that begin as maintenance concerns can escalate into constitutional disputes if they are not addressed.<\/p>\n
\u201cFeatherbrooke Estate has dry ground beneath its feet at last, but they had to survive years of litigation and multiple rainy seasons before they could get the state to execute its basic municipal functions,\u201d Wasserman says.<\/p>\n
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