About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 315
|
|
National Home Builders Registration Council v Makubela and Another (2020/21621) [2020] ZAGPJHC 315 (9 September 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 2020/21621
In the matter
between:
THE NATIONAL HOME BUILDERS
REGISRATION COUNCIL APPLICANT
and
LUCAS
MAKUBELA 1
ST
RESPONDENT
THE HOME BUILDER
EMPLOYED AT STAND 1270 2
ND
RESPONDENT
J U D G M E N T
MUDAU, J:
[1]
This
is an urgent application in terms of which the applicant seeks an
order inter-alia,
interdicting
and restraining the respondents’ from performing any building
and construction related activities at the property
known as stand
[...], Heidelberg, Extension 12, Gauteng, pending compliance by the
respondents with the provisions of Section 10
and 14A of the Housing
Consumers Protection Measures Act 95 of 1998 (the Act).
[2]
The
National Home Builders Registration Council (the NHBRC), is an organ
of state established in terms of section 2 of the Act to
regulate the
home building industry. Its objects are set out in section 3 of the
Act and include representing ‘the interests
of housing
consumers by providing warranty protection against defects in new
homes(section 3(a)); regulating the home building
industry
(section 3(b).); providing protection to owners of homes ‘in
respect of the failure of home builders to comply
with their
obligations’ in terms of the Act (section 3(c)); and ‘to
establish and to promote ethical and technical
standards in the home
building industry(Section 3(d).)
[3]
The
first respondent, Mr Lucas Makumbela, is the registered owner of Erf
[...], Heidelberg ext. 12 (the property).
The
second respondent is cited as the builder at the property.
[4]
An
NHBRC inspector, Ms Makume, whilst conducting a routine inspection on
10 June 2020 in the area, attended at the property where
she observed
building works taking place.
She
approached the workers at the site, who refused to provide any
information about the building contractor but provided her with
a
telephone number of the owner, who was identified as "Lucas".
She phoned the owner and confronted him about the fact
that the
builder at the site had not been registered with the applicant, and
the property had not been enrolled prior to commencement
of the
building works, as is required in terms of section 10 read with
section 14 of the Act.
[5]
The
first respondent then came to the site and spoke to Makume. He did
not deny any of the non-compliances complained of and undertook
to
ensure that these non- compliances were rectified immediately.
On
17 June 2020 and having now established that the owner had still not
complied with his undertaking to her, Makume returned to
the site and
found a contractor on site that was in the process of delivering
building materials.
[6]
Makume
issued a notice of non- compliance but was unable to deliver it as
the contractor delivering the building materials indicated
that he
could not accept service thereof on behalf of the owner.
Makume
was only able to return to the property on 6 August 2020.
Makume
also issued out a second report of administrative non-compliance with
the Act. The matter was subsequently referred to the
applicant’s
attorneys of record.
[7]
In
the answering affidavit, the first respondent admits that he is the
builder responsible for the building works, and the owner
of the
property.
He
contends that he is in fact registered with the NHBRC as a builder
and accordingly complies with the provisions of section 10
of the
Act, since 6 February 2020.
The
applicant accepts this fact as correct, but maintains that this does
not affect the application, as the applicant has failed
to comply
with section
14
of the Act.
[8]
The
first respondent contends that, some days after having been served
with this urgent application, on 28 August 2020, he filed
an
application for exemption as owner builder as contemplated in section
29 of the Act. In addition, he contends that
t
he
purpose of the Act would not be undermined if an owner builder were
allowed to build before making application for exemption,
because
consumers do not need protection from an owner builder as they do
from a homebuilder.
[9]
Importantly,
section14(1) of the Act, which lies at the heart of this application,
provides:
“
A
home builder shall not commence the construction of a home falling
within any category of home that may be prescribed by the Minister
for the purposes of this section unless-
(a)
the home builder has submitted the prescribed documents, information
and fee to the Council in the prescribed manner;
(b)
the Council has accepted the submission contemplated in
paragraph (a) and has entered it in the records of the
Council;
and
(c)
the Council has issued a certificate of proof of enrolment in the
prescribed form and manner to the home builder.’
[10]
Accordingly,
in terms of section
14
of the Act, a homebuilder may not begin to build a home before he,
she or it has submitted the prescribed documents, information
and fee
to the NHBRC, the NHBRC has accepted these, has entered this in its
records, and has issued a certificate of proof of enrolment.
A
contravention of section 14 of the Act constituted an offence as
provided for in section 21(1) (b) of the Act.
Section
29, in turn, provides for exemption of certain provisions of the Act,
and provides specifically that the Council of the
applicant under
exceptional circumstances approve this. Accordingly, the mere
submission of an application for exemption does not
exempt an owner
builder from compliance with section 14 of the Act. In order to be
exempt, the Council must first grant one an
exemption.
[11]
It
is trite that 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 instances where
there are transgressions. As Majiedt JA (as he then was) stated
in
Lester
v Ndlambe Municipality and Another
[1]
:
“…
the
law cannot and does not countenance an ongoing illegality which is
also a criminal offence. To do so, would be to subvert the
doctrine
of legality and to undermine the rule of law”.
It
follows, accordingly that the unauthorized and illegal conduct of the
respondents in unlawfully erecting a building structure
without the
necessary exemption is
contra
bonos mores
and
contrary to public policy, and cannot be condoned by the court.
[12]
Order
12.1
The
first respondent is interdicted and restrained from performing or
causing the performance, of any building and construction
related
activities at the property known as Stand 2870, Heidelberg, Extension
12, Gauteng, pending compliance by the first respondent
with the
provisions of section 14(A) of the Housing Consumer Protection
Measures Act 95 of 1998.
12.2
The
first respondent is ordered to pay the costs of the application.
________________
T P MUDAU
[Judge of the High Court,
Gauteng Local Division,
Johannesburg]
Date of Hearing:
3 September 2020
Date of Judgment:
9
September 2020
APPEARANCES
For the
Applicant:
Adv. S G Gouws
Instructed
by:
Verveen Attorneys
For the
Respondent:
Adv. C Grant
Instructed
by:
Meijer Attorneys
[1]
2015
(6) SA 283
(SCA) at [23]. (See also
Standard
Bank of South Africa Ltd v Swartland Municipality
2010(5)
SA 479 (WCC);
Standard
Bank of South Africa Limited v Swartland Municipality
2011
(5) SA 257
(SCA)).