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[2016] ZASCA 58
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BSB International Link CC v Readam South Africa (Pty) Ltd (279/2015) [2016] ZASCA 58; [2016] 2 All SA 633 (SCA); 2016 (4) SA 83 (SCA) (13 April 2016)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 279/2015
DATE: 13 APRIL
2016
Reportable
In
the matter between:
BSB
INTERNATIONAL LINK
CC
.................................................................................
APPELLANT
And
READAM
SOUTH AFRICA (PTY)
LTD
........................................................
FIRST
RESPONDENT
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
.........................................................
SECOND
RESPONDENT
Neutral
citation
:
BSB
International Link CC v Readam South Africa (Pty) Ltd
(279/2015)
[2016] ZASCA 58
(13 April 2016)
Coram
:
Ponnan, Majiedt and Swain JJA and Victor and Kathree-Setiloane AJJA
Heard
:
3 March 2016
Delivered:
13 April 2016
Summary:
Review – municipality –
illegal building – sections 7 and 21 National Building
Regulations and Building Standards
Act 103 of 1977 (the NBSA) –
adjacent property owner – locus standi at common law –
demolition order –
exercise of discretion – stark
dichotomy between discretion at common law and discretion in terms of
s 21 of the NBSA.
Order
On
appeal from:
Gauteng Local Division of the High Court,
Johannesburg (Mayat J sitting as court of first instance).
1
The order of the court a quo is amended in the following respects:
(a)
Paragraph 1 is deleted and replaced by:
‘
The
purported decision taken by the first respondent on or about 5 March
2013 in terms of s 7 of the National Building Regulations
and
Building Standards Act 103 of 1977 (the NBSA) to approve the building
plan or plans submitted to it under Reference No 2012/12/0397
in
respect of Erf 426, Parkmore Township, Registration Division IR,
Province of Gauteng, measuring 991m² is reviewed and set
aside.’
(b)
Paragraph 4 is amended by the addition of:
‘
and
a suitably qualified engineer has certified that the partial
demolition of the building will not compromise the structural
integrity and safety of the building or adjacent buildings.’
2.
Save to the extent set out above the appeal is dismissed with costs.
Judgment
Ponnan
and Swain JJA
(Victor
and Kathree-Setiloane AJJA concurring):
[1]
This is an appeal against an order granted
by the Gauteng Local Division, Johannesburg (Mayat J) at the instance
of the first respondent,
Readam South Africa (Pty) Ltd (Readam),
directing that a building owned and constructed by the appellant, BSB
International Link
CC (BSB), be demolished to the extent necessary to
ensure compliance with the Sandton Town Planning Scheme (the scheme).
The order
granted reads as follows:
‘
1.
It is declared that the building erected on ERF 426, PARKMORE
TOWNSHIP, REGISTRATION DIVISION IR, PROVINCE OF GAUTENG, measuring
991 metres square (“the property”), has been erected and
continues to be erected without the prior approval of building
plans
by the First Respondent [the City of Johannesburg Metropolitan
Municipality] in terms of section 7 of the National Building
Regulations and Building Standards Act 103 of 1977 (“the
NBSA”), as required by section 4 of the NBSA, and is
accordingly
unlawful.
2.
It is further declared that the building erected on the property and
presently being erected on the property, has been erected
and
continues to be erected in contravention of the provisions of the
Sandton Town Planning Scheme, 1980 (“the Scheme”),
and is
accordingly unlawful.
3.
The Second Respondent [BSB] and / or its successors in title to the
property is / are directed to partially demolish the building
erected
on the property so as to ensure that such building shall be fully
compliant with
3.1
the coverage limit of 60% imposed by the Scheme;
3.2
the parking requirements imposed by the Scheme; and
3.3
the remaining provisions of the Scheme.
4.
It is declared that no such partial demolition of the building on the
property in terms of paragraph 3 above shall take place
unless and
until building plans have been approved by the First Respondent in
terms of section 7 of the NBSA.
5.
It is declared that no such partial demolition of the building on the
property in terms of paragraph 3 above shall take place
unless and
until the First Respondent has satisfied itself that the building
plans and all buildings depicted therein are compliant
with the 60%
maximum coverage limitation imposed by the Scheme, and also compliant
with the requirements of the Scheme relating
to on-site parking for
motor cars as well as other applicable provisions of the Scheme.
6.
Irrespective of whether or not the building on the property has been
partially demolished and modified in terms of 3 above, the
building
on the property shall not be used in contravention of the Scheme, nor
shall the property be occupied until a valid certificate
of occupancy
has been issued by the First Respondent in terms of section 14(1)
(a)
of the NBSA.
7.
The Second Respondent is interdicted from occupying or permitting
occupation of any building on the property until such time
as a valid
certificate of occupancy in terms of section 14(1)
(a)
of the
NBSA has been issued by the First Respondent in respect of such
building.
8. The Second
Respondent is directed to pay the Applicant’s costs.’
[2]
Although the City of Johannesburg
Metropolitan Municipality (the municipality) was cited as the first
respondent, it filed no answering
affidavit and took no part in the
proceedings. This was despite the fact that the primary relief sought
by Readam in terms of Rule
53 of the Uniform Rules of Court, was
directed at reviewing and setting aside the building plans approved
by the municipality in
terms of s 7 of the National Building
Regulations and Building Standards Act 103 of 1977 (the NBSA).
[3]
The supine and uncooperative attitude of
the municipality made the task of the court a quo in resolving the
dispute between BSB
and Readam all the more difficult. It also
resulted in an incomplete record being produced by the municipality
as required in terms
of Rule 53.
[4]
It is clear from the evidence that BSB has
also played no small part in frustrating Readam’s attempts to
obtain details of
the approval of the building plans by the
municipality. It also exploited the ineptitude of the municipality,
with the clear objective
of obfuscating and delaying matters to
enable the building to be completed prior to the court adjudicating
the dispute between
the parties. The goal being, no doubt, to present
the court with a fait accompli, in the form of a completed building.
Against
this background it comes as no surprise that BSB, in response
to Readam’s application, launched a counter-application founded
on the complaint that it was prejudiced in its defence of the main
application, by the inadequate record furnished by the municipality.
BSB also sought orders against Readam and the municipality directing
Readam to itemise all documents and other information which
Readam
contended were missing from the record filed by the municipality.
Unsurprisingly, an order was also sought staying
the review
proceedings pending the municipality’s furnishing of the
missing portions of the record.
[5]
In support of its counter-application BSB
also relied upon an agreement reached between BSB and Readam at a
case management meeting
held before Claassen J, where the learned
judge directed that the provisions of Rule 35 relating to discovery,
inspection and the
production of documents, would serve as the basis
for obtaining the missing portions of the record allegedly required
by BSB.
[6]
The counter-application was correctly
dismissed on the facts. Somewhat surprisingly BSB thereafter sought
leave to appeal primarily
on the basis that the court a quo had erred
in dismissing its counter-application (for discovery of the full
record). BSB asserted
that it had accordingly been denied a proper
opportunity to be heard and defend itself against the challenges made
by Readam. The
present appeal is with the leave of this court.
[7]
The
relief sought by BSB on appeal is that as a consequence of the
inadequate record the order of the court a quo falls to be set
aside
in its entirety and replaced with one compelling discovery by the
municipality. According to BSB, the matter should thereafter
only be
enrolled when the municipality has complied with that order. Assuming
in favour of BSB (without deciding) that the dismissal
of the
counter-application is appealable,
[1]
as
we shall show it is clearly without merit.
[8]
BSB submits that there is a dispute of fact
on the papers as to whether the requirements of the scheme have been
contravened as
regards: (a) the permissible coverage of the building
on the site and (b) the provision of adequate parking. Each of those
requirements
will be considered in turn.
Coverage
[9]
In terms of the scheme, the property is
zoned business 1 and is situated in Height Zone 0. The building
comprises new retail and/or
office space. Clause 25 of the scheme
regulates coverage by reference to Table H. It is clear in respect of
a development such
as this, that the maximum coverage of a property
by a building cannot exceed 60 per cent.
[10]
As correctly submitted in Readam’s
heads of argument, the initial allegation made by Readam in its
founding affidavit, based
upon the evidence of Mr Kevin Wilkens, a
town planner, was that the coverage of the property by the building
as at April 2013 was
at least 80 per cent. The response by BSB in its
answering affidavit was:
‘
The
allegations herein made are denied. The evidence is in any event
inadmissible’.
No
basis was given as to why it was contended that the evidence, which
was confirmed by Wilkens in a supporting affidavit, was inadmissible.
[11]
As pointed out by Readam in a supplementary
affidavit filed in terms of Rule 53(4), if BSB genuinely held the
view that there was
no contravention of the maximum coverage
limitation of 60 per cent, it was open to it to adduce evidence from
its architect or
some other suitably qualified expert, who could have
authoritatively stated the precise area of the property covered by
the building.
[12]
Readam, had engaged the services of a land
surveyor, Mr Kevin Meluish, who measured the coverage of the site by
the building as
at October 2013 and found this to be 853,58 m²
or 86.13 per cent of the total area of the property which is 991m².
The
following response of BSB is revealing:
‘
This
appears to be a gratuitous précis and restatement of
allegations and arguments and interpretations thereof already made
in
earlier affidavits. This is primarily a matter for submission and I
repeat what has been stated in the earlier affidavits filed
in this
matter. The argument herein contained will be dealt with at the
hearing of this application.’
[13]
The direct expert evidence of Mr Meluish,
which addresses a central issue in the dispute between the parties,
ought not to have
been simply glossed over by the deponent to BSB’s
affidavit, Mr Mike Slim, its sole member. What had been stated in the
earlier
affidavit by Mr Kevin Wilkens was simply denied by Mr Slim.
When counsel for BSB was asked why the measurements made by Mr
Meluish
were not disputed he submitted somewhat faintly that the
coverage of the site had already been denied and it was not necessary
to do so again. It is quite clear that BSB in not countering Mr
Meluish’s evidence failed to raise a genuine and bona fide
dispute of fact in this regard. As stated in
Wightman
t/a JW Construction v Headfour (Pty) Ltd
& another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at 375H-I:
‘
When
the facts averred are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer
(or
countervailing evidence) if they be not true or accurate but, instead
of doing so rests his case on a bare or ambiguous denial
the court
will generally have difficulty in finding that the test is
satisfied.’
[14]
That there was no foundation for BSB’s
denial of the extent of the coverage of the property is illustrated
by the fact that
BSB admitted in a later supplementary affidavit,
that it had made application to amend the scheme to permit an
increased coverage
of 85 per cent. This, however, was refused in
April 2014. Counsel for BSB made the startling submission that it was
the intention
of BSB to continue building and if it eventually
transpired that the building exceeded that permitted in terms of the
scheme, the
offending portion of the building would be demolished.
This submission ignores the requirement that the building would have
to
proceed in terms of lawfully approved building plans in the first
place, which self-evidently did not happen here.
Parking
[15]
Clause 18 of the scheme read with Table F
provides that effective and paved parking for motor vehicles together
with the necessary
manoeuvring space shall be provided to the
satisfaction of the municipality, for shops, six parking bays per
100m² of gross
lettable shopping area and for offices, four
parking bays per 100m² of office area.
[16]
Readam submits that if the building was
built in conformity with the coverage permitted of 60 per cent of the
site and if the ground
floor was utilised for retail purposes, this
would require 35 parking bays. It is undisputed that BSB has provided
no additional
parking over and above the present 10 parallel bays
located in the road widening servitude. It is clear that the building
as erected
makes no provision for the requisite number of parking
bays required by the scheme.
[17]
BSB
submits that it did have approved building plans. But, if the
municipality had purported to approve the plans despite the fact
that
the scheme had not been complied with in respect of either coverage
or parking, the approval would contravene s 7(1)
(a)
of the NBSA and Readam would have been entitled to an order reviewing
and setting aside the approval.
[2]
It follows that the court a quo ought to have granted the
primary relief sought by Readam to review and set aside the purported
approval of the plans by the municipality and not an order (as per
paragraph 1 of the high court’s order) declaring that
the
building was erected without the prior approval of the municipality.
This order granted by the court a quo was based
upon a finding
that the building plans had been cancelled by the municipality
arising out of a document included in the record
filed by the
municipality. This document which on the face of it contained the
approval notification of the plans in question,
had two transverse
lines drawn across it with the word ‘cancelled’ written
in manuscript. No other evidence was furnished
to explain the
document or its significance. The court a quo accordingly erred in
finding that this document standing alone proved
that the
municipality had cancelled the building plans. The order granted will
accordingly be amended by the deletion of paragraph
1 of the high
court’s order. It will be replaced with an order as originally
sought by Readam, reviewing and setting aside
the unlawfully approved
building plans.
[18]
Tellingly, the evidence adduced by Readam
that insofar as the permissible coverage and parking were concerned,
BSB had contravened
the scheme, became either common cause or
undisputed. In those circumstances the possible relevance of the
content of the record
to either of these issues remains unexplained.
In any event, BSB had been aware since April 2013 that the complaint
by Readam was
that it (BSB) was building in contravention of the
scheme and without building plans. BSB as the owner and developer was
accordingly
entitled at any time to documentation in the possession
of the municipality, most of which would have emanated from its
architects
and other consultants. Nothing prevented BSB from
accessing and placing the record before the court. In reality, the
record such
as it was must have been available to it, consisting, as
it must have, in the main, of documents that it would have supplied
to
the municipality. In this context the relief sought was nothing
short of audacious and may well have constituted an abuse. It would
thus amount to an exercise in futility to accede to BSB’s
request that the order of the high court be set aside and that
the
municipality be compelled to make discovery.
[19]
The primary contention of BSB having been
disposed of, what remains is to consider the correctness of certain
of the orders of the
high court, which were sought to be assailed on
appeal by BSB.
The
partial demolition order
[20]
The
court a quo in dealing with the relevant legal framework examined the
provisions of the scheme, the Town Planning and Townships
Ordinance
15 of 1986, as well as the provisions of the NBSA.
[3]
It held:
(i)
. . . ‘our courts have always recognized that there is a duty
on the relevant local authority to enforce the provisions
of the
relevant town-planning schemes’
[4]
;
(ii) ‘In the present case, the applicant has presented
undisputed evidence demonstrating that the municipality has in any
event dismally failed to take any measures against clear
contraventions of the applicable Scheme. As such, the applicant
effectively
has no alternative adequate remedy other than a final
interdict . . .’
[5]
; (iii)
. . . ‘there is no basis for this court to exercise its general
discretion against the granting of a final interdict’
[6]
and (iv) ‘. . . the applicant has satisfied the requirements of
mandatory interdict sought in paragraph 6 of the amended
notice of
motion
[7]
’.
[21]
Where the court a quo sourced a power of
demolition from was not explained. The only power to be found in the
NBSA to order the
demolition of a building is that in s 21 of
the NBSA, which provides:
‘
Order
in respect of erection and demolition of buildings
Notwithstanding
anything to the contrary contained in any law relating to
magistrates’ courts, a magistrate shall have jurisdiction,
on
the application of any local authority or the Minister, to make an
order prohibiting any person from commencing or proceeding
with the
erection of any building or authorising such local authority to
demolish such building if such magistrate is satisfied
that such
erection is contrary to or does not comply with the provisions of
this Act or any approval or authorisation granted thereunder.’
[22]
In
Lester v
Ndlambe Municipality and another
[2013]
ZASCA 95
;
2015 (6) SA 283
(SCA) it was decided that a court hearing
an application in terms of s 21 of the NBSA, had no latitude not to
order the complete
demolition of a building once the jurisdictional
fact, namely that the building was erected contrary to the NBSA, was
established.
It was held that the conclusion that s 21 did not lend
itself to an interpretation other than that there was no discretion
not
to order demolition of the building, was unassailable. The law
could not and did not countenance an ongoing illegality which was
also a criminal offence. To do so would be to subvert the doctrine of
legality and to undermine the rule of law. It was for this
reason
that a partial demolition order could not be granted.
[23]
If s 21 found application here then on the
authority of
Lester
the partial demolition order issued by the court a quo may not have
been competent. However, it is clear that only a local authority
or
the Minister has locus standi to bring an application in terms of s
21 before a magistrate. The statutory right to seek the
remedies
provided for in s 21 is clearly intended to enable local authorities
and the Minister, to ensure compliance with the provisions
of the
NBSA in relation to town planning schemes. Consequently, an
individual with standing to bring an application to review and
set
aside the unlawful approval of building plans by a local authority
would not have locus standi to pursue the remedies provided
for in s
21. Such an individual would be restricted to seeking a mandamus in
appropriate circumstances to compel the municipality
or the Minister
to act in terms of s 21 of the NBSA, should the municipality or
Minister have failed so to act.
[24]
That,
however, could hardly mean that Readam was without a remedy. For, it
is ‘of the essence of a town-planning scheme that
it is
conceived in the general interests of the community’ (
The
Administrator,
Transvaal and The Firs Investments (Pty) Ltd v Johannesburg City
Council
1971
(1) SA 56
(A) at 70D). And, as the high court observed, ‘. . .
the contravention of the Scheme by BSB, at least in relation to
parking
in the vicinity, has a direct adverse (and harmful) impact on
the applicant’.
[8]
At
common law the power to order the demolition of a building ordinarily
finds application in the case of an encroachment by a
building onto a
neighbour’s property. The relevant principles are clearly
expressed in the title on ‘Things’
by C G Van der Merwe
in 27
LAWSA
(2 ed) para 158 in the following terms:
‘
When
a land owner erects a structure on his or her land he or she must
take care that he or she does not encroach on his or her
neighbour’s
land. This rule of neighbour law is not only applicable in cases
where the building itself or its foundations
encroach on neighbouring
land, but also where roofs, balconies or other projections encroach
on the air space above a neighbour’s.
In
the case of encroaching structures the owner of the land which is
encroached upon can approach the court for an order compelling
his or
her neighbour to remove the encroachment. . . Despite the above rule
the court can, in its discretion, in order to reach
an equitable and
reasonable solution, order the payment of compensation rather than
the removal of the structure. This discretion
is usually exercised in
cases where the cost of removal would be disproportionate to the
benefit derived from the removal. If the
court considers it equitable
it can order that the encroaching owner take transfer of the portion
of the land which has been encroached
on. In such circumstances the
aggrieved party is entitled to payment for that portion of land,
costs in respect of the transfer
of the land as well as a solatium on
account of trespass and involuntary deprivation of portion of his or
her land.’
[25]
Importantly, here we are not concerned with
an encroachment on Readam’s land. In
De
Villiers v Kalson
1928 EDL 217
, Graham
JP embarked upon a detailed discussion of the prior authorities on
this point. He said (at 229-230):
‘
[i]t
will be observed that in none of the South African cases were the
facts quite similar to the facts disclosed in this case,
for in the
present case there has been no encroachment upon the ground of
another, but an encroachment upon his rights . .
. I am inclined
to think that this difference makes little or no change in the
plaintiff's rights for many of the same arguments
used in
favour of the view that the Court has no discretion but must grant an
order for the removal, apply equally well to encroachment
on land and
encroachment on rights, such as exist in the present case.’
In
concluding that there was a discretion vested in the Court the
learned judge president added (at 231)
:
‘
After
all there must surely be some discretion vested in a Court even in
cases involving breaches of what are termed negative
covenants
in the English Law, and I can find no authority in our law which
states that under no circumstances can the Court exercise
such a
discretion. It is quite clear that for the reasons stated in so many
of the English cases, the wrongdoer who encroaches
on another's
rights cannot be heard to say, unless there are some very special
circumstances, that a monetary compensation is sufficient,
for that
would be tantamount to compelling the plaintiff to consent to
expropriation, but on the other hand it would be equally
inequitable
to place the plaintiff in a position to extort wholly excessive
completion from the defendant by granting an order
for the removal of
the buildings in cases in which the facts disclose that a
remedy in damages would fully meet the justice
of the case. . .
I
have therefore come to the conclusion that I have a discretion in
this case to grant an order giving the defendant an option of
paying
damages in place of removing his building if the plaintiff has
satisfied me that he has sustained damages.’
[26]
The high court appeared not to appreciate
that it was possessed of the kind of discretion alluded to by Graham
JP. What tips the
scales against BSB is that it was warned that it
was acting illegally and in spite of such warning, it deliberately
persisted.
If anything, it engaged in obfuscatory behaviour to delay
finalisation of this litigation whilst pressing ahead with its
illegal
conduct. Such conduct can hardly be countenanced by a court.
To do so will make a mockery of ordered town planning and by
extension
the law. The order granted by the court a quo which
directed that the property be demolished to the extent necessary to
ensure
compliance with the scheme, can accordingly not be faulted.
[27]
That conclusion notwithstanding, it is
nonetheless necessary to observe that if the municipality had
properly performed its functions
and approached the court in terms of
s 21 of the NBSA, the court would, on the strength of
Lester
,
have been obliged to grant an order of total demolition. If
Lester
is correct a stark dichotomy would
exist between our common law and our statutory law in respect of
substantially the same remedy.
For, in terms of the former, a court
would have a broad general discretion, whilst in terms of the latter,
a court would have no
discretion. Several important factors
appear not to have received due consideration in the interpretive
exercise undertaken
by
Lester.
First,
given the draconian nature of the power (namely to order demolition)
the purpose of s 21 must obviously be to ensure judicial
oversight.
Judicial oversight without a judicial discretion seems, on the face
of it, to be a contradiction in terms. The absence
of a discretion
would in those circumstances run counter to the proper exercise of
judicial oversight. Second, if the magistrates’
court is merely
to perform a rubber-stamping function then a review can hardly lie to
the high court at the instance of anyone
aggrieved by that decision.
Third, in terms of s 21 of the NBSA a court has the power ‘to
make an order prohibiting any person
from commencing or proceeding
with the erection of any building or authorising such local authority
to demolish such building’.
Consequently, after the
commencement of the erection of the building, but before completion
of its erection, a court can grant
an order either prohibiting the
person from ‘proceeding with the erection’ or an order of
demolition. If a court possesses
such a discretion then it is
difficult to see why, once erection of the building is complete, a
court no longer possesses a discretion
to even grant a partial
demolition of the building to the extent of its illegality. Fourth,
irrespective of the extent of the illegality
a demolition order must
follow. Thus, even a fairly trivial illegality must elicit the rather
disproportionate sanction of total
demolition. Whether our
Constitution would countenance that has to be debateable. Fifth, in
terms of s 26(3) of the Constitution
no one may have their home
demolished ‘without an order of court made after considering
all of the relevant circumstances’.
That plainly envisages the
exercise of a broad general discretion. Thus certainly insofar as a
home is concerned, with which we
are admittedly not concerned here,
an interpretation of s 21 that there is no discretion appears not to
square with the Constitution.
Sixth, the definition of ‘building’
in s 1
(d)
of
the NBSA includes ‘any part of a building’ which suggests
that any relief granted in terms of s 21, may be directed
at part of
a building. That, it goes without saying, will entail the exercise of
a discretion.
[28]
It thus seems incongruous to require
judicial oversight over the grant of a demolition order in terms of s
21 of the NBSA but then
remove any discretion from a court whether to
grant a partial or total demolition order. The exercise of a
discretion to order
the partial demolition of a building to the
extent of its illegality, accords with the principle of legality,
because in granting
such an order a court in no way abrogates its
duty to enforce the law. For, these reasons, which are probably by no
means exhaustive,
it may well be that the interpretation placed on s
21 by
Lester
does not survive careful scrutiny. But, it is not necessary for now
to express any firm view on its correctness.
[29]
In a case such as this a court is possessed
of a broad general discretion to be exercised after affording due
consideration to all
the relevant circumstances. Obviously, before
granting a partial demolition order a court would have to be
satisfied that the illegality
complained of is capable of being
addressed by such an order and that it is practically possible to do
so. Depending on the circumstances
this may require evidence to be
given by experts such as engineers and architects to ensure that the
structural integrity and safety
of the building is not compromised
when partially demolished. Accordingly, paragraph 4 of the order of
the court a quo which declares
that no partial demolition of the
building shall take place unless and until building plans have been
approved by the municipality,
will be amended to include a further
requirement that an engineer must certify that partial demolition
will not impair the structural
integrity and safety of the building,
or adjacent buildings.
The
certificate of occupancy
[30]
BSB alleges that it was originally granted
a temporary certificate of occupancy of the building dated 15 May
2013, which was due
to lapse on 31 May 2014. In anticipation of this
a new temporary certificate was issued dated 15 May 2014.
[31]
In the amended notice of motion dated 31
October 2013, Readam sought the review and setting aside of the
temporary certificate of
occupancy dated 15 May 2013. BSB therefore
submits that although the court made no order in this regard, it
erred in holding that
the second temporary certificate of occupancy
expiring in May 2015 was susceptible to be set aside, because the
issue of the second
certificate rendered the relief sought against
the first certificate moot. It is however clear that the grounds upon
which the
first certificate was challenged - namely that because the
approval of the plans was unlawful, any issue of a temporary
certificate
of occupation in reliance upon the legal validity of the
plans, would itself be unlawful – is logically unassailable.
The
interdict preventing occupation of the building pending the issue of
a valid certificate of occupancy in terms of s 14(1)
(a)
of the
NBSA
[32]
The court a quo granted an order directing
BSB not to permit the occupation of the building until such time as a
valid certificate
of occupancy was issued. BSB submits that in the
absence of any joinder of the occupants it was not permissible for
the court to
grant such an order. Importantly, the order that issued
in this respect operates only as against BSB and no one else.
[33]
It is ordered that:
1
The order of the court a quo is amended in the following respects:
(a)
Paragraph 1 is deleted and replaced by:
‘
The
purported decision taken by the first respondent on or about 5 March
2013 in terms of s 7 of the National Building Regulations
and
Building Standards Act 103 of 1977 (the NBSA) to approve the building
plan or plans submitted to it under Reference No 2012/12/0397
in
respect of Erf 426, Parkmore Township, Registration Division IR,
Province of Gauteng, measuring 991m² is reviewed and set
aside.’
(b)
Paragraph 4 is amended by the addition of:
‘
and
a suitably qualified engineer has certified that the partial
demolition of the building will not compromise the structural
integrity and safety of the building or adjacent buildings.’
2.
Save to the extent set out above the appeal is dismissed with costs.
V
M Ponnan
Judge
of Appeal
K
G B Swain
Judge
of Appeal
MAJIEDT
JA:
[34]
I
have read the judgment of my colleagues, Ponnan and Swain JJA. I
agree with its outcome and the underlying ratio decidendi
.
I
write separately because I respectfully disagree with their obiter
dictum relating to this court’s approach and finding
in
Lester
v Ndlambe Municipality & another.
[9]
On the facts and issues that arose in this case, it was unnecessary
to deal with this issue.
[35]
The
obiter dictum seeks to examine the ‘stark dichotomy . . .
between our common law and our statutory law in respect of
substantially the same remedy’ as far as a court’s
discretion is concerned.
[10]
It concludes that ‘. . . it may well be that the interpretation
placed on s 21 by
Lester
does
not survive careful scrutiny. But it is not necessary, for now, to
express any firm view on its correctness’.
[11]
As I see the matter, the reason my colleagues did not deem it
necessary to decide the correctness or otherwise of
Lester
is precisely because this case has nothing to do at all with
demolitions under statutory law, as was the case in
Lester
.
[36]
As
an adjoining landowner whose rights were adversely affected by the
unlawful construction of the building, Readam South Africa
(Pty) Ltd
(Readam) approached the court below for a common law remedy, as it
was entitled to do.
[12]
Demolition in terms of s 21 of the National Building Regulations and
Building Standards Act 103 of 1977 (the Act) did not feature
in the
affidavits, the judgment of the court below or the written
submissions in this court. So when it was raised by members of
the
court during the course of counsel’s argument, they were
unsurprisingly not prepared to deal meaningfully with this aspect
when pressed to do so. Counsel for Readam therefore filed
supplementary heads of argument after the hearing in which he
pertinently
pointed out that
Lester
had no bearing on the basis upon which Readam sought relief in the
court below or upon the competency of that court to order a
partial
demolition (under the common law). I agree with that submission.
[37]
My colleagues have provided a detailed
analysis of the different remedies under the common law (neighbour
law) and the statutory
law (s 21 of the Act) insofar as demolition is
concerned. This court did the same in
Lester
and it is not necessary to regurgitate the principles. It is
self-evident that a land owner who complains about the encroachment
of its rights by an adjoining land owner has no right to approach a
magistrate’s court for a demolition order in terms of
s 21,
which my colleagues have cited in full in para 20. That right is
expressly reserved for the Minister of Economic Affairs
and a local
authority. An affected land owner can only seek a remedy in common
law. My colleagues appear to recognise this in para
23. It is
necessary to advert briefly to the papers to demonstrate why
Lester
has no bearing on this case.
[38]
Readam
approached the court below on the basis that the encroaching BSB
structure contravened the Sandton Town Planning Scheme (the
Scheme).
It made no mention of s 21 anywhere in its papers. There was no need
to. Section 4(1) of the Act
[13]
was mentioned in Readam’s papers only in the context that any
purported approval by the second respondent (the municipality)
would
have been a nullity by virtue of the contraventions of the scheme in
terms of s 7(1)(
a
)
of the Act.
[14]
Section 21 of
the Act and
Lester
feature nowhere in the papers or in the comprehensive, well reasoned
judgment of Mayat J. The reason is not hard to find: this
case had
nothing to do with it.
[39]
A useful comparison can be drawn (as
Readam’s counsel has done in its supplementary heads) between
Readam’s position
here and that of Mr Haslam, one of the
shareholders and directors of the second respondent company (High
Dune) in
Lester.
His
holiday home, registered in the name of the company, adjoined the
home of Professor Lester, which was the offending structure
in that
case. The municipality sought a demolition order in respect of
Lester’s unlawfully erected home (this was common
cause) in
terms of s 21 of the Act. The second respondent was initially cited
by the municipality as a respondent with a direct
interest in the
matter. The second respondent, however, successfully applied on an
unopposed basis to be joined as a co-applicant
with the municipality.
It made common cause with and supported the relief claimed by the
municipality. As stated (in
Lester
para 21), the second respondent did not seek any common law remedies,
nor did it rely on the common law (neighbour law) principles
–
it supported the municipality’s claim for a public law remedy
under s 21. A detailed discussion ensued in
Lester
(in paras 22 and 23) on the differences between a s 21 demolition and
one based on neighbour law. That was necessary in view of
the high
court’s erroneous approach in
Lester
that that was a neighbour law case. In the present instance the
converse applies – this is a neighbour law case, based on
the
private law remedy of partial demolition available to an affected
land owner. Readam could not and did not seek a public law
remedy
under s 21 of the Act, nor did it rely on any of the provisions of
the Act at all. Hypothetically, absent the municipality’s
participation in
Lester
,
the second respondent there had a neighbour law remedy available to
it. That would have entailed an order for either partial
or
total demolition in the discretion of the court.
[40]
I
do not propose traversing afresh the ratio decidendi in
Lester
– the judgment speaks for itself. An attempt to appeal to this
court’s unanimous judgment was unsuccessful –
the
Constitutional Court dismissed Professor Lester’s application
for leave to appeal with costs on 10 September 2013.
[15]
While an obiter dictum is not binding authority, it does have some
persuasive value, particularly coming from this court. In
Turnbull-Jackson
v Hibiscus Coast Municipality
[16]
Madlanga J explained it thus:
‘
Literally,
obiter dicta
are things said by the way or in passing by a court. They are not
pivotal to the determination of the issue or issues at hand and
are
not binding precedent. They are to be contrasted with the
ratio
decidendi
of a judgment, which is
binding.’
But
the learned Judge adds:
‘
Only
that which is truly
obiter
may not be followed. But depending on the source, even
obiter
dicta
may be of potent persuasive force and only departed from after due
and careful consideration.’
[17]
[41]
Our
courts have on many occasions emphasized the need to observe the
doctrine of precedent. The rationale for it was explained as
follows
by Brand AJ in
Camps
Bay Ratepayers’ and Residents’ Association & another
v Harrison & another:
[18]
‘
Observance
of the doctrine has been insisted upon, both by this court and by the
Supreme Court of Appeal. And I believe rightly
so. The doctrine of
precedent not only binds lower courts, but also binds courts of final
jurisdiction to their own decisions.
These courts can depart from a
previous decision of their own only when satisfied that the decision
is clearly wrong.
Stare decisis
is therefore not simply a matter of respect for courts of higher
authority. It is a manifestation of the rule of law itself, which
in
turn is a founding value of our Constitution. To deviate from this
rule is to invite legal chaos.’
Hahlo
and Kahn
[19]
state that:
‘
In
the legal system the calls of justice are paramount. The maintenance
of the certainty of the law and of equality before it, the
satisfaction of legitimate expectations, entail a general duty of
judges to follow the legal rulings in previous judicial decisions.
The individual litigant would feel himself unjustly treated if a past
ruling applicable to his case were not followed where the
material
facts were the same.’
[42]
Given the centrality of the doctrine of
judicial precedent in our legal system, and of the strong persuasive
force of obiter dicta
from this court, I do not consider it correct
or appropriate for this court to call into question a prior judgment
of this court
in regard to an issue that has no bearing on the
outcome of the present matter.
[43]
To conclude: this matter was litigated as a
private (neighbour) law case by an aggrieved and affected land owner
with legal standing
to pursue the remedy available to it. The court
below correctly decided the matter on that basis. The order for a
partial demolition
of the unlawful structure was, in the exercise of
the court’s discretion, properly made as the appropriate remedy
in the
circumstances. Section 21 of the Act, and the issues in
Lester
,
have no bearing whatsoever on this case.
Lester
concerned a public law statutory remedy in an instance where the
unlawful erection of the offending structure constituted a criminal
offence. It remains binding authority, notwithstanding the
reservations expressed obiter by my colleagues.
S
A Majiedt
Judge
of Appeal
Appearances:
For
the Appellant: D J Vetten
Instructed
by:
Martini
Patlansky Attorneys, Johannesburg
Lovius
Block, Bloemfontein
For the First and
Second Respondent: G F Porteous
Instructed
by:
Strauss
Scher Attorneys, Sandton
Webbers,
Bloemfontein
[1]
Zweni
v Minister of Law and Order
[1992] ZASCA 197
;
1993 (1) SA 523
(A) at 532I-533B;
Absa
Bank Ltd v Mkhize
&
two similar cases
[2013] ZASCA 139
;
2014 (5) SA 16
(SCA) paras 17-19;
National
Director of Public Prosecutions v King
[2010] ZASCA 8
;
2010 (2) SACR 646
(SCA) paras 50-52.
[2]
JDJ
Properties CC & another v Umngeni Local Municipality &
another
[2012] ZASCA 186
;
2013 (2) SA 395
(SCA) para 22.
[3]
Paragraph 14 to 25 of the judgment.
[4]
Paragraph 62.
[5]
Paragraph 63.
[6]
Paragraph 64.
[7]
Paragraph
65.
[8]
Paragraph 61.
[9]
Lester
v Ndlambe Municipality & another
(514/12)
[2013] ZASCA 95; 2015 (6) SA 283 (SCA).
[10]
Paragraph
26.
[11]
Paragraph
27.
[12]
JDJ
Properties CC & another v Umngeni Local Municipality &
another
(873/11)
[2012] ZASCA 186
;
2013 (2) SA 395
(SCA) paras 34-35.
[13]
Section
4(1) reads as follows:
‘
(1)
No person shall without the prior approval in writing of the local
authority in question, erect any building in respect of
which plans
and specifications are to be drawn and submitted in terms of this
Act.’
[14]
Section
7(1)(
a
)
reads:
‘
(1)
If a local authority, having considered a recommendation referred to
in section 6(1)(
a
)
– (
a
)
is satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall
grant its approval in respect thereof.’
[15]
Matthew
Robert Michael Lester v Ndlambe Municipality & another
CCT
115/13.
[16]
Turnbull-Jackson
v Hibiscus Coast Municipality & others
(CCT/04/13)
[2014] ZACC 24
;
2014 (6) SA 592
(CC) para 61 (footnotes omitted).
[17]
Paragraph
56.
[18]
Camps
Bay Ratepayers’ and Residents’ Association & another
v Harrison & another
(CCT//8/10)
[2010] ZASCA 19
;
2011 (4) SA 42
(CC) para 28 (footnotes
omitted).
[19]
HR
Hahlo and Ellison Kahn
The
South African Legal System and Its Background
(1968) at 214.