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[2014] ZAGPJHC 360
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Nulane Investments 35 (Pty) Ltd v Ekurhuleni Metropolitan Municipality (3079/13) [2014] ZAGPJHC 360 (11 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case
number: 3079/13
DATE:
11 AUGUST 2014
In
the matter between:
NULANE
INVESTMENTS 35 (PTY)
LTD
.....................................................
APPELLANT
And
EKURHULENI
METROPOLITAN MUNICIPALITY
................................
RESPONDENT
CORAM:
NICHOLLS J et BALOYI AJ
JUDGMENT
NICHOLLS
J:
[1]
The appellant appeals against a judgment of the Kempton Park
Magistrate’s Court, which made an order in favour of the
respondent, the Ekurhuleni Metropolitan Municipality, in the
following terms:
1.The
appellant’s erection of the 4 additional buildings on
Agricultural Holding 282 is declared contrary to and does not
comply
with the provisions of Section 4(1) of the National Building
Regulations and Building Standards Act 103 of 1977 as it was
erected
by the appellant without prior written approval of the respondent.
2.The
respondent is authorized in terms of Section 21 of the abovementioned
Act to immediately demolish the 2 buildings next to
the pool and the
building intended to house workers. The respondent is authorized in
terms of Section 21 of the abovementioned
Act to demolish the 4
buildings currently occupied and used for the manufacture of engines
on 31 May 2013.
3.Costs
awarded in favour of the appellant.
[2] The appellant
consented to the first order, the declaration of illegality of the
buildings and therefore opposes only the order
of demolition. The
respondent originally also sought interdicts preventing the appellant
from continuing with further unlawful
construction and restraining
the appellant from conducting the business of maintaining and
building machines in contravention of
the zoning certificate
applicable to the property. These prayers were abandoned by the
respondent and the learned magistrate accordingly
made no order
pertaining to them.
[3] The facts giving
rise to the application are as follows. On 9 May 2011, the
respondent’s building inspector attended at
Erf 282, the
property of which the appellant is the registered owner, and
established that the appellant had erected additional
buildings and
structures on the property. One of these was being used as a plant
for manufacturing and maintaining engines. It
was found that the
appellant failed to make any application for the approval of the
additional building or submit plans therefor.
[4] On the same day,
the respondent issued a notice calling upon the appellant to rectify
its non-compliance with Section 4(1) of
the National Building
Regulations and Building Standards Act 103 of 1977 (‘the Act’)
within 30 days. The appellant
failed to react to the notice. On 25
November 2011 the respondent’s attorneys addressed a letter to
the appellant requesting
it to apply for approval. The letter was
then served on the appellant on 18 January 2012. On 1 February 2012
the appellant informed
the respondent’s attorneys that it had
received no notice in respect of Erf 282, only in respect of Erf 281.
The notice of
9 May 2011 referring to Erf 282 was again sent to the
appellant on 9 February 2012. The appellant was given 5 days to
approach
the respondent to submit plans, specifications and an
application relating to the additional buildings.
[5] On 28 February
2012, because the appellant had denied receiving the notice of 9 May
2011, yet another notice was issued giving
the appellant 30 days to
obtain written approval or remove the buildings. Thereafter the
appellant approached the respondent for
approval of the additional
buildings. The approval was rejected on the basis that the premises
are zoned for agricultural purposes
and not industrial purposes. The
appellant was denied permission to operate a business of
manufacturing engines on the property.
The respondent then launched
the present application out of the Kempton Park Magistrate’s
Court in July 2012.
[6] For the most
part, the factual allegations in the founding affidavit are admitted
by the appellant. It is alleged that the balance
of convenience is in
the appellant’s favour as the respondent would not be
prejudiced if the demolition of the structures
were to be stayed
until the plans have been approved.
[7] The appellant’s
case is based primarily on three points in limine. The first is that
the deponent to the founding affidavit
was not authorised to depose
to the affidavit or to launch the action. Coupled with this is the
argument that the learned magistrate
took into account the replying
affidavit of the respondent, which had been struck out by another
magistrate. The second point in
limine is that the tenants on the
property who have a substantial financial interest should have been
joined. The third point in
limine is that the magistrate’s
court did not have jurisdiction to hear the matter because of the
value of the rental involved
in one of the buildings to be
demolished.
[8] On the merits it
is argued that the court a quo had a discretion whether to order the
demolition of the buildings or not. It
erred in not exercising its
discretion in favour of the appellant.
Jurisdiction
[9] I will deal with
the third point in limine first as this point, wisely in my view, was
not vigorously pursued by the appellant’s
counsel. The argument
relates mainly to the interdicts, which prayers were abandoned by the
respondent. Nonetheless, section 21
of the Act clearly gives the
magistrate’s court jurisdiction and provides:
“
21.
Notwithstanding anything to the contrary contained in any law
relating to the 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 authorizing 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 authorization
granted
thereunder.”
Joinder
[10]
The learned magistrate correctly found that the question of joinder
could only relate to the demolition order and held as follows:
“
It
is settled law that the right of a defendant to demand the joinder of
another party and the duty of the court to order such joinder
(and
this right and this duty appear to be co-extensive) are limited to
cases of joint owners, joint contractors and partners and
where the
other party has a direct and substantial interest in the issues
involved and the order which the court might make. What
may be
regarded as a direct and substantial interest has been held to be an
interest in the right which is the subject matter of
the litigation
and … not merely a financial interest which is only an
indirect interest in such litigation. This approach
has been
confirmed by our Supreme Court of Appeal.”
[11] The court a quo
went on to find that the interest of the tenants was merely financial
and accordingly they had no direct and
substantial interest in the
proceedings. This reasoning cannot be faulted. Moreover, the right of
the tenants to occupy the premises
is a derivative one, entirely
dependent on the appellant.
[1]
Once the structures of the appellant are illegal the tenants can have
no direct and substantial interest in the demolition.
Authority
[12] It is common
cause that the deponent to the founding affidavit, Ms Makwela
(‘Makwela’) signed the affidavit when
she was no longer
acting as the Executive Director of Corporate and Legal Services of
the respondent. The court a quo held that
Makwela did not at any
stage allege that she was authorised to launch this action but merely
that she had personal knowledge of
the facts (which is not disputed).
There is no dispute that the person with the authority did in fact
initiate the proceedings.
Because of the above, it was held that it
was unnecessary to deal with the question of the authority of
Makwela.
[13] It is now
settled law that the deponent to an affidavit in motion proceedings
need not be authorised by the party concerned
to depose to the
affidavit. It is the institution of proceedings and the prosecution
thereof that must be authorised. In
Ganes
& Another v Telecom Namibia Ltd
[2]
it was found that the
proceedings were instituted and prosecuted by a firm of attorneys
purporting to act on behalf of the respondent.
So, too, in this case.
The firm Koikanyang Incorporated instituted action at the behest of
one Andile Arnold Sihlalala on 21 September
2001 in his capacity
apparently as Acting Executive Director of Corporate and Legal
Services of the respondent. There has been
no challenge to the
authority of the attorneys, merely that of the deponent. The point in
limine is misplaced and falls to be rejected.
Discretion of the
magistrate
[14] The Supreme
Court of Appeal in the recent case of
Lester
v Ndlambe Municipality,
[3]
dealt
with the question of whether a court has any discretion in deciding
whether or not to order demolition where there has been
non-compliance with the relevant statutory provision. The court
pointed out that to erect a building in respect of which there
were
no approved plans amounted to a criminal offence in terms of the Act.
[15] Once the
jurisdictional facts for a demolition order in terms of section 21 of
the Act have been established the court has
no discretion but to
uphold the rule of law, refuse to countenance the ongoing statutory
contraventions and enforce the provisions
of the Act. Courts have a
duty to ensure that the doctrine of legality is upheld and to grant
recourse at the instance of public
bodies charged with the duty of
upholding the law. In this case the illegality of the additional
structures has been conceded.
No court can condone ongoing illegality
which is also a criminal offence.
[16]
The magistrate had no choice but to order demolition once the
illegality had been conceded. In the circumstances, the appeal
must
fail.
I
make the following order:
1.
The appeal is dismissed with costs.
C.
H. NICHOLLS
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
I
agree, it is so ordered.
J.
BALOYI
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Appearances
Counsel
for the appellant : Adv. J Botha
Instructing
Attorneys: Joubert Scholtz Incorporated
Counsel
for the respondent : Adv. S van Vuuren
Instructing
Attorneys : Koikanyang Incorporated
Date
of hearing : 07 August 2014
Date
of judgment : 11 August 2014
[1]
Burger
v Rand water Board and Another
2007 (1) SA 30
(SCA);
United
Watch and Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd
and Another
1972 (4) SA 409
(C)
[2]
2004
(3) SA 615
(SCA),
[3]
(514/12)
[2013] ZASCA 95
(22 August 2013)