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[2013] ZASCA 95
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Lester v Ndlambe Municipality and Another (514/12) [2013] ZASCA 95; [2014] 1 All SA 402 (SCA); 2015 (6) SA 283 (SCA) (22 August 2013)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 514/12
Reportable
In the matter between
MATTHEW ROBERT MICHAEL
LESTER
........................................................................
Appellant
and
NDLAMBE
MUNICIPALITY
.....................................................................................
First
Respondent
HIGH DUNE HOUSE (PTY)
LTD
.........................................................................
Second
Respondent
Neutral
citation:
Lester
v Ndlambe Municipality
(514/12)
[2013] ZASCA 95
(22 August 2013)
Coram
: Mthiyane
DP, Cachalia, Theron and Majiedt JJA, Zondi AJA
Heard:
15 May 2013
Delivered:
22 August 2013
Summary:
Local Government – demolition
of a building erected without approved building plans – court
not vested with any discretion
where demolition applied for in terms
of s 21 of the National Building Regulations and Building Standards
Act 103 of 1977 –
doctrine of legality requires courts to
enforce statutory prohibitions the contravention of which constitutes
a criminal offence
ORDER
On
appeal from:
Eastern
Cape High Court, Grahamstown (Alkema J, sitting as court of first
instance):
The appeal is dismissed with costs,
including the costs of two counsel, where so employed.
JUDGMENT
Introduction
[1] This appeal concerns the demolition
of a luxury home in Kenton-on-Sea (Kenton) on the Eastern Cape coast.
The home belongs to
the appellant, Professor Matthew Robert Michael
Lester. The first respondent, the Ndlambe Municipality, under whose
jurisdiction
Kenton falls, applied for and was granted a demolition
order in respect of the appellant’s home by Alkema J in the
Eastern
Cape High Court, Grahamstown. The learned judge also
dismissed the appellant’s counter-application to allow him to
alter
the house and made costs orders in accordance with these
outcomes. This appeal is with his leave.
[2] The second respondent, High Dune
House (Pty) Ltd, is a private company, whose shareholders and
directors are Mr and Mrs Haslam.
Their holiday home is registered in
the company’s name and is adjacent to the appellant’s
residence. Mr Haslam has
deposed to all the affidavits on the
company’s behalf. For the sake of convenience I shall refer to
the various parties as
“Ndlambe”, “Lester”
and “Haslam”. Ndlambe’s seat as local authority is
in the nearby
town of Port Alfred.
The factual matrix
[3] This case has a long, sorry
history, which includes seven high court applications, including the
one presently on appeal, extending
over a period of more than a
decade. All these applications culminated in orders against Lester,
either by consent or by the court
finding against him. As these
applications form an integral part of the factual backdrop to this
matter, I consider it necessary
to recount them in some detail. The
facts are largely undisputed. Most importantly, it is common cause
that Lester’s dwelling,
which is the subject of this dispute,
has been erected unlawfully, without any approved building plans as
required by s 4(1) of
the National Building Regulations and Building
Standards Act 103 of 1977. I shall revert to this and other relevant
provisions
of the Act presently.
[4]
Kenton is a quaint seaside village, on the coastal road between Port
Elizabeth and East London, the R72. It is flanked by this
road, two
rivers and the Indian Ocean. Its inhabitants consist mostly of
retirees, holidaymakers and a few permanent residents.
Lester, a
professor in tax law at Rhodes University in Grahamstown (some 60
kilometres from Kenton by road), falls into the last-mentioned
category. It is undisputed that the property is his primary
residence. As stated, the Haslams’ neighbouring property is
their holiday home. It is located (as the company’s name
suggests) on the flat top of a dune, with Lester’s property
to
the south, lower down the sloping dune. Lester acquired his property
in 1997 from his mother and aunt, to whom it had been bequeathed
by
Lester’s grandfather. The property initially provided basic
holiday accommodation but, upon joining Rhodes University
in 1998,
Lester decided in 2001 to make Kenton his permanent home. This
necessitated the construction of a bigger house higher
up the slope
of the dune. This is when the trouble started.
[5] Before the construction began, the
Haslams had sweeping, panoramic views over the ocean from their
dwelling, spanning from
the west to the east. This changed when
Lester began building. Lester first engaged the architectural
services of Ms Pollos Purden
to design a dwelling higher up from the
existing rudimentary dwelling. She designed a single storey pitched
roof house. Her building
plans were approved by Ndlambe on 3 May 2002
(the Purden plans). The design envisaged a split level home. It has
erroneously been
described by some of the parties as a
“double-storeyed” home, though nothing turns on this
issue. Lester commenced
building operations on the Purden plans.
Haslam obtained copies of the Purden plans from Ndlambe’s
officials, after he saw
foundations being cast for the new dwelling.
He made it plain to the officials at that early stage that he had an
interest in the
matter and that he required to be notified of
Lester’s building plans, prior to their approval. Haslam raised
an objection
to the construction of a second, separate dwelling
higher up on the dune because it contravened Lester’s title
deed restriction
which prohibited more than one dwelling on the same
property. Lester was notified of this objection, but chose to
continue building,
pending a council decision.
[6] These events led to the first high
court application in which Haslam applied for an interdict
restraining Lester from continuing
building operations, pending the
outcome of review proceedings. The application was successful before
Pickering J who interdicted
Lester from building further pending
approval of amended plans. Of significance is that Lester, in his
answering affidavit, acknowledged
that in the event of a successful
review he would be obliged to demolish the existing structure for
lack of approved plans. On
Lester’s instructions, Ms Purden
amended the plans to convert the old building to a boathouse and
outbuildings, thus overcoming
the prohibition against the
construction of more than one dwelling on the property. The amended
Purden plans were approved on 8
November 2002. It is common cause
that these plans remain unchallenged and valid. One would have
thought that Lester, in view of
what had happened, would have
contented himself with this situation and to have proceeded with the
building on these plans. This
was not to be. Due to a change in his
personal circumstances, which entailed Lester having to create
additional space for his frail
mother in his new house, he discarded
the Purden plans altogether, and appointed another architect, Mr Sam
Pelissier, with a mandate
to design a double-storey building, using
the Purden plans’ footprint.
[7] Pelissier fulfilled his mandate by
designing a dome-shaped roof in place of the envisaged pitched roof
of the Purden plans
to cater for the wind, height and shade factors
(the Pelissier plans). It is important to note that these plans
varied significantly
from the Purden plans in respect of the general
architectural design. In particular it had a bigger roof which
considerably increased
the height of the building. The Pelissier
plans were taken to the relevant Ndlambe officials in Port Alfred for
approval by Lester
himself on 17 July 2003. In Lester’s own
words, he “walked the officials of the various [Ndlambe]
departments through
the plans”, resulting in them being
approved on the same day. Neither Ndlambe nor Lester gave notice to
Haslam of the new
Pelissier plans despite being undeniably aware of
Haslam’s interest in the matter. So, when construction of the
new dwelling
commenced, Haslam, completely unaware of the changed
circumstances, assumed that building was still proceeding under the
unchallenged
Purden plans of November 2002. When he realised that
this was not so during October 2003 he launched the second
application to
have the Pelissier plans reviewed and set aside.
[8] Several grounds for review were
advanced by Haslam in the second application amongst others the fact
that Ndlambe had failed
to appoint a building control officer whose
tasks in terms of the Act included the furnishing of a report on
Lester’s building
operation. Ndlambe conceded this omission and
consented to an order before Jennett J on 25 June 2004, setting aside
the approval
of the Pelissier plans and referring them to Ndlambe for
reconsideration, following the appointment of a building control
officer
and upon notice to Haslam. Lester also consented to the
order.
[9] Ndlambe approved the Pelissier
plans again during November, subject to certain conditions, which
included the change in the
conditions in the title deed. This
prompted Haslam to launch the third application on 24 February 2005,
for the review and setting
aside of the conditional approval of the
plans. Several grounds were relied upon for the review, of which the
principal ground
was that Ndlambe had no authority to approve plans
‘conditionally’, and that its purported ‘conditional
approval’
was
ultra vires
s 7 of the Act. Goliath AJ
made an order by consent on 22 September 2005, setting aside the
Pelissier plans yet again and referring
them back to Ndlambe for
fresh consideration.
[10] The
Pelissier plans were approved by Ndlambe for the third time on 14
February 2006, after it
had received submissions from all interested
parties and after it held a hearing on 25 November 2005. And so the
fourth application
was made for a review of this latest approval on
substantially the same grounds as in the previous application. Jones
J made an
order by consent between the parties on 29 June 2007,
setting aside this approval. This time, Jones J did not remit the
matter
to Ndlambe, but issued a declarator to the effect that the
Pelissier plans (of July 2003) ‘be not approved’.
Lester’s
counter-application was dismissed. In effect Jones J’s
order required the submission of new building plans, a fact which
Ndlambe acknowledged by passing an important resolution on 31 March
2008. The relevant part reads:
“
That
it be noted that the building on Erf 20 [Lester’s dwelling]
exists without plans, no plans have subsequent to Jones J’s
by
the owner of Erf 20 for approval.”
The fifth application, in which Haslam
sought a mandamus to compel Ndlambe to make a decision following the
judgment of Jones J,
was withdrawn when Haslam became aware of the
resolution. But he was not satisfied with the terms of the resolution
and brought
the sixth application for the reviewing and setting aside
of the resolution and substituting it with an order directing Lester
to submit, within one month, building plans that comply with all the
applicable statutory and zoning prescripts failing which Ndlambe
would apply in terms of s 21 of the Act for the dwelling to be
demolished.
[11] On 22 April 2010 Plasket J made an
order by agreement between the parties. The order granted Haslam the
relief set out in
the preceding paragraph. The significance of this
order was twofold:
(a) Lester was placed on terms to
submit plans within one month that complied with all statutory and
zoning requirements;
and that
(b) the spectre of a demolition
order being sought in the event of non- compliance, loomed large.
It bears emphasis that Lester had
consented to Plasket J’s order. The whole sorry saga
surrounding Lester’s dwelling
raised the ire of several members
of the community, forcing Lester to decamp to Cape Town for a brief
sojourn. It is not in issue,
however, that the dwelling in Kenton
remained his primary residence.
[12] Lester sought to comply with the
Plasket J order by submitting various sets of amended and revised
plans to Ndlambe, none
of which met with the latter’s approval.
The final revised plans envisaging the removal of the top floor and
the domed roof
to be replaced with a flat roof in order to achieve a
reduction in overall height and size, were submitted on 15 September
2010.
On 5 December 2010 Ndlambe adopted the recommendations of the
building control officer and resolved in terms of s 7(1)(b) of the
Act not to approve the final plans since they did not comply with the
Plasket J order. Lester was notified of this outcome on 13
January
2011 and the demolition application followed on 21 January 2011. As I
have mentioned, Lester instituted a counter-application
to permit him
to alter the dwelling so as to avoid the demolition order.
The judgment of the court below
[13] The central disputes between the
parties in the court below concerned the questions:
(a) whether the existence of the
requisite jurisdictional facts
ipso facto
warrants a
demolition order under the Act;
(b) whether a court has any
discretion at all in deciding whether or not to order demolition
where there has been non-compliance
with the relevant statutory
provisions;
(c) if such a discretion exists, whether
it is a wide or narrow discretion; and
(d) lastly, whether an alteration
of the dwelling, as sought by Lester, should be ordered instead.
[14] Alkema J made the following
principal findings:
(a) Lester was no innocent victim
of Ndlambe’s incompetence;
(b) Absent any internal appeals
under s 9 of the Act or challenges by way of reviews under the
Promotion of Administrative
Justice Act 3 of 2000 (PAJA) these
decisions remain valid and legally binding until set aside on appeal
or review;
(c) Lester’s property is, both
judicially and administratively, an unlawful structure in terms of
the Act, thus entitling
Ndlambe to seek an order authorising it to
have the dwelling demolished in terms of s 21 of the Act;
(d) Whereas Ndlambe’s case
against Lester turns on s 4(1) read with s 21 of the Act, Haslam
relies on both the common
law principles of neighbour law and the
statutory contraventions;
(e) In all cases where a
demolition order is sought, the court retains a discretion which has
to be exercised judicially,
ie in accordance with the
disproportionality of prejudice test, bearing in mind the dictates of
legal and public policy;
(f) In applying the disproportionality
of prejudice test, Lester’s own conduct and the absence of any
evidence that he would
not be able to afford other housing, does not
constitute sufficient prejudice, nor can he avail himself of the
rights enshrined
in s 26(3) of the Constitution;
(g) Legal and public policy
required the court to enforce the principle of legality and to uphold
the rule of law by granting
the demolition order.
[15] I do not propose dealing with all
these findings. For the reasons that follow, I agree that the
demolition order was warranted,
but I am of the view that Alkema J
chose an incorrect path in reaching his conclusion. He found firstly
that neighbour law principles
are applicable in this case and
secondly that a court has a discretion in all demolitions sought
under the Act. In this court Lester,
understandably so, supported the
finding that a court has a discretion, but contended that such
discretion should have been exercised
in his favour, by granting the
counter-application for alteration of the dwelling. Lester’s
counsel relied for these submissions
on s 26(3) of the Constitution
and the common law’s neighbour law principles for the existence
of such a discretion. This
discretion, contended counsel, was either
a wide discretion, particularly if s 26(3) of the Constitution
applies, or what he termed
a ‘residual discretion’ which
he contended emanates from the Act itself. I shall deal with these
submissions separately
by first examining the constitutional basis
and then by considering whether neighbour law applies at all. Closely
associated with
the latter aspect is the question whether the
statutory provisions themselves permit such a discretion, bearing in
mind the principle
of legality.
Does s 26(3) of the Constitution afford
a court a discretion in demolition cases?
[16] Section 26 of the Constitution
reads as follows:
“
26
Housing
(1) Everyone has the right to have
access to adequate housing.
(2) The state must take reasonable
legislative and other measures, within its available resources, to
achieve the progressive realisation
of this right.’
(3) No one may be evicted from their
home, or have their home demolished, without an order of court made
after considering all the
relevant circumstances. No legislation may
permit arbitrary evictions.”
It was submitted on behalf of Lester
that the magistrate’s authority (or in this instance that of
the high court) to order
a demolition under s 21 of the Act had to be
read with s 26(3) of the Constitution, which requires “all
relevant circumstances”
to be taken into account before making
the order. This confers, so it was contended, a wide discretion on a
magistrate when faced
with such an application to consider all the
relevant circumstances in this case before ordering the demolition of
Lester’s
dwelling. For the reasons that follow, I consider this
submission to be misplaced.
[17]
Section 26(3) must not only be read in its historical context, ie as
a bulwark against the forced removals, summary evictions
and
arbitrary demolitions of the shameful past dispensation, but also
together with s 26(1) and (2), since s 26 must be read as
a whole.
Mokgoro J, writing for a unanimous court in
Jaftha
v Schoeman; Van Rooyen v Stoltz
[1]
emphasized
that:
“
(s)ection
26 must be seen as making that decisive break from the past. It
emphasises the importance of adequate housing and in particular
security of tenure in our new constitutional democracy”.
[2]
The
protection afforded in s 26(3) must therefore always, without
exception, be read against the backdrop of the right to have access
to adequate housing, enshrined in s 26(1). Thus where a person,
facing a demolition order, does not adduce any evidence that he
or
she would not, in the event of his or her dwelling being demolished
by order of a court, be able to afford alternative housing,
s 26(1)
is of no avail to him or her. Lester, as the court below correctly
found in my view, is in precisely this position. Apart
from alluding
to the ‘calamitous financial implications’ which
demolition of his dwelling (which he estimates to be
worth around R8
million) would entail, he does not state anywhere in his papers that
he would be rendered homeless and destitute
by the demolition.
[3]
This court pointed out in
Standard
Bank of South Africa Ltd v Saunderson
[4]
that what constitutes “adequate housing” is always a
factual enquiry and that executing a writ of execution in respect
of
a luxury home, which Lester’s dwelling undeniably is, has no
bearing on the right of access to adequate housing. And the
fact that
the dwelling sought to be demolished is the person’s primary
residence, as is the case here, does not detract from
this principle.
The cardinal question is whether demolition of Lester’s
property would infringe upon his right to access
to adequate housing.
The answer, on the papers before us, must be an emphatic “no”.
Lester’s counsel contended
that such an interpretation of s
26(3) would render the words “… an order of court made
after considering all the
relevant circumstances” nugatory. I
disagree. Even taking into account “relevant circumstances”
(which the court
below in any event did), the primary consideration
is whether the right of access to adequate housing would be
compromised by the
demolition. That is the import and effect of the
judgment in
Jaftha
and the plain, unambiguous meaning of s 26. I turn to consider the
second submission, namely that the source of the discretion
not to
order a demolition is to be found in the statute and in the common
law principles of neighbour law, which are based on principles
of
fairness and equity.
The statutory provisions and neighbour
law as possible sources of a court’s discretion
[18]
Alkema J relied heavily on the case of
Benson
v S A Mutual Life Assurance Society
[5]
as authority for his finding that he does have a discretion whether
to order demolition or not. Lester’s counsel has correctly
conceded that
Benson
does not lend such support, since it concerned the discretionary
remedy of specific performance in breach of contract instances.
The
passage relied upon (783C–E) in particular, is clearly about
this aspect and not about a discretion concerning demolition
orders.
The judge below appears to have given recognition to this in his
judgment granting leave to appeal to this court, acknowledging
that
‘[
Benson
]
dealt with a discretion in cases of specific performance and not in
demolition orders’ and later on, that he had exercised
his
discretion ’on an extremely narrow, and perhaps novel basis’.
[19] A useful starting point, to my
mind, in ascertaining whether there are other sources for such a
discretion in demolition cases,
is the statute itself. The Act’s
objective is to provide uniformity in the law relating to the
erection of buildings in the
area of jurisdiction of local
authorities and to prescribe building standards. 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.”
Section 4(4) renders the contravention
of s 4(1) a criminal offence with a penal sanction of a fine not
exceeding R100 for each
day on which the offender was engaged in
erecting the (illegal) building. Section 9 makes provision for an
appeal against decisions
of local authorities. For present purposes
the refusal to grant approval of building plans is appealable –
such appeal is
to a review board. Section 21 reads as follows:
“
21.
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
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.”
[20] It is plain that s 21 must be read
with ss 4(1) and 4(4) of the Act. As stated, it was common cause
before Alkema J that Lester’s
property is an illegal structure
having been erected without approved building plans. It was therefore
at risk of demolition by
order of court at the instance of Ndlambe.
Both Nlambe and Haslam (in particular) adopted the stance in the
court below and again
before us that a court has no discretion in the
circumstances and must order demolition under s 21 once illegality is
established.
Lester’s counsel valiantly sought to persuade us
that such a discretion is to be found in the section itself and if
not,
that the neighbour law principles should be ‘imported’
into the section. He contended that s 21 implicitly permits partial
demolition in the present case, as sought by Lester in his
counter-application. These submissions are devoid of merit. First and
foremost a mere reading of the provision makes it plain that there is
no warrant for reading such implicit discretion into it.
What is
more, s 4(4) read with s 4(1), creates a criminal offence with a
penal sanction in the event of a building being erected
without
approved building plans, an aspect which militates strongly against
such discretion. I shall revert to the provisions of
s 4 under the
next rubric in which I will discuss the applicability of neighbour
law and the doctrine of legality. Counsel was
unable to expound on
the legal basis for and the modalities of the importation of
neighbour law principles into the provisions
contained in s 21. It
comes as no surprise that there is a complete dearth of authority for
this novel proposition. Counsel was
unable to point us to such
authority and I am not aware of any. The conclusion that the
statutory provision itself does not lend
itself to such a discretion
is unassailable. The language of the provision gives a magistrate no
latitude not to order the demolition
once the jurisdictional fact,
namely that the building was erected contrary to the Act, is
established. During argument Lester’s
counsel contended that
the provision must at a minimum be read to give a residual
discretion to the magistrate. But he was
unable to advance
authority for this proposition and it too is devoid of merit. I turn
to a consideration of neighbour law principles
and the doctrine of
legality.
The relevance of neighbour law and the
role of the doctrine of legality
[21] Alkema J commenced his judgment by
stating that this case ‘involve issues of neighbour law, public
law and administrative
law’. Lester’s counsel vigorously
endorsed the view that neighbour law principles apply here,
understandably so. But
this is not a neighbour law case at all.
The misconception in this regard stems from the Haslams’
involvement in the
case. To illustrate why this was misconceived, a
brief history of how they joined the fray is required. Haslam (and I
am still
referring to him here representing the second respondent
company) was initially cited in Ndlambe’s demolition
application
as one of several respondents with an interest in the
matter. Haslam, however, successfully and without any opposition
thereto,
applied for joinder as second applicant with Ndlambe in the
main application. He did so because he supported fully the relief
sought
by Ndlambe. More importantly, in so doing, Haslam did not rely
on any neighbour law principles, nor did he seek any additional
remedies based on neighbour law. Haslam made common cause with
Ndlambe in seeking public law remedies, ie demolition in terms of
s
21 of the Act and ancillary relief. In the supporting affidavit in
the joinder application, Haslam pertinently states that ‘High
Dune (ie second respondent) has a legal interest in ensuring that
Ndlambe takes all appropriate steps to remedy any failure by
Lester
to comply with all statutory zoning and other requirements’.
Alkema J wrongly found that ‘the issues raised
by the joinder
(of Haslam), on the other hand, are essentially matters of neighbour
law, which is a branch of the law of obligations,
and which call into
play certain legal principles which do not arise as between Ndlambe
and Lester, but became relevant between
Haslam and Ndlambe.’ As
a consequence of this misconception, a significant part of the
judgment of the court below deals
with neighbour law principles and
cases. I intend restricting myself to a few of them only, to
illustrate why this is not a neighbour
law case and to contrast it
with the doctrine of legality.
[22] It
is plain that Ndlambe approached the court below for a public law
remedy, namely a s 21 demolition. It simply sought enforcement
of a
statutory right flowing from a statutory contravention, which also
amounts to a criminal offence. And Haslam supported the
relief sought
by the council. Lester’s counsel’s submission appears to
be that there is no reason not to apply the
common law principles of
neighbour law, which give courts a wide and equitable discretion to
avoid granting a demolition order
in respect of encroaching
structures in the context of a public law remedy. Neighbour law has
long recognized that in matters such
as encroachment, courts have a
discretion to award damages instead of ordering the removal of the
offending building or structure,
the deciding factor being the
disproportionality between removal of the encroachment measured
against the damage or inconvenience
suffered by a plaintiff. There is
an interesting academic discourse on whether the English law
influence of equity finds application
in this discretionary power,
but it need not be discussed at all in this instance
[6]
.
In
Rand Waterraad v
Bothma
[7]
,
Hattingh J undertook a detailed analysis of this discretion in
encroachment cases. Numerous cases and the Roman and Roman Dutch
authorities are collated in the judgment.
Brevitatis
causa
, it will
suffice to summarize the conclusions reached by Hattingh J at the end
of his detailed discussion
[8]
(loosely translated and condensed):
(a) the
sui generis
nature
of neighbourly relationships resulted in the development of legal
rules based on equity in our common law;
(b) the emphasis in neighbour law
is always on the protection of the neighbourly relationship as such,
rather than the individual
interests of every neighbour separately;
(c) neighbour law principles
and precepts are aimed at attaining a just and equitable result and
the correct application
thereof ought always to lead to a result
which satisfies one’s sense of justice.
The law
reports are replete with instances where the courts have held that
such a discretion exists in neighbour law cases.
[9]
It is easy to understand why neighbour law, which is premised on
considerations of fairness, equity and justice, would afford courts
a
discretion on whether to order removal of the offending structure or
whether to award damages. But it seems to me that a public
law remedy
such as a demolition order in terms of s 21, is a different
matter altogether. Here it is common cause that the
dwelling is an
illegal structure and not a mere encroachment on a neighbour’s
property. Moreover, as stated, it constitutes
a criminal offence
under s4(4) of the Act.
[23]
Section 21 authorizes a magistrate, on the application of a local
authority or the Minister, to order demolition of a building
erected
without any approval under the Act. This is undoubtedly a public law
remedy. Alkema J questioned how a statutory breach
which gives rise
to the same claim under private law or public law can afford a court
a discretion under private (neighbour) law,
but not under public law.
The answer is simply that 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. In
United
Technical Equipment Co (Pty) Ltd v Johannesburg City Council
[10]
the Full Court was seized with an appeal against the granting of an
interdict in the Local Division in terms whereof the appellant
company (qua respondent a quo) was restrained from using property
which was zoned residential in terms of the Town Planning Scheme,
for
business purposes (offices). It was common cause that by using the
property as offices, the appellant was committing an offence.
The
appellant’s case was that the court should have suspended the
interdict pending the final dismissal of his application
to the
Administrator for rezoning of the property. Harms J, writing for the
Full Court, considered whether a court has a general
discretion to
grant or refuse an interdict. The learned judge pointed out that in
the leading case on interdicts,
Setlogelo
v Setlogelo
[11]
,
this court granted a final interdict, having been satisfied that all
the requisites for the granting of a final interdict had
been met,
without considering at all whether it should, in the exercise of a
discretion, refuse the interdict. Harms J also referred
to
Peri-Urban
Areas Health Board v Sandhurst Gardens (Pty) Ltd
[12]
,
where the court refused to suspend an interdict under similar
circumstances because, as Clayden J put it: ‘where the breach
of law interdicted is a breach of a statute a stricter approach is
adopted.’
[13]
As Harms J correctly explains, what Clayden J meant to convey was not
that there is a rule that a statutory right is stronger than
a common
law right, but simply that the statutory breach referred to is a
breach which is visited by criminal sanctions (as is
the case here).
The following dictum of Harms J is apposite:
“
It
follows from an analysis of these cases that discretion can, if at
all, only arise under exceptional circumstances. Furthermore,
I am
not aware of any authority which would entitle the court to suspend
the operation of an interdict where the wrong complained
of amounts
to a crime”
[14]
.
[24]
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
Standard
Bank of South Africa Ltd v Swartland Municipality
[15]
Moosa J had to deal with an application that a demolition order,
issued in the Malmesbury Magistrates’ Court, be set aside
and
for Standard Bank, as mortgagee, to be joined. In stressing the
courts’ duty in enforcing demolition orders, the learned
judge
stated that:
“
The
unauthorised and illegal conduct of the third respondent (in
unlawfully erecting a structure without approved plans) is contra
boni mores and contrary to public policy, and cannot be condoned by
the court. It militates against the doctrine of legality, which
forms
an important part of our legal system, and more especially since the
Constitution became the supreme law of the country”
[16]
.
Moosa J
referred to the oft quoted dictum of Chaskalson CJ in
Pharmaceutical
Manufacturers of SA: In re Ex parte President of the Republic of
South Africa and others
[17]
,
which bears repetition:
“
The
exercise of all public power must comply with the Constitution, which
is the supreme law, and the doctrine of legality, which
is part of
that law.”
The doctrine of legality as part of the
rule of law
[25]
Wade and Forsyth correctly point out that in administrative law, the
rule of law encapsulates, inter alia, the
notion that “government
should be conducted within a framework of recognized rules and
principles which restrict discretionary
power”
[18]
It is self-evident that this principle encompasses all three arms of
government, ie the executive, the legislature and the judiciary.
Equally obvious is that it applies to the three spheres of
government, ie national, provincial and local government. Yvonne
Burns
explains that this doctrine ensures in the sphere of public law
that “(a) the exercise of public power by the administration
conforms to constitutional principles; (b) public authorities comply
with specific duties and obligations in the exercise of their
discretionary powers and (c) the state and its officials obey the law
to ensure good and fair administration”.
[19]
[26]
Local government, like all other organs of state, has to exercise its
powers within the bounds determined by the law and such
powers are
subject to constitutional scrutiny, including a review for legality.
In
Fedsure Life
Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
1999 (1) SA
374 (CC)
[20]
the court expounded on the doctrine of legality as an essential
component of the rule of law as follows:
“
These
provisions [ie ss 174(3) and 175(4) of the Constitution] imply that a
local government may only act within the powers lawfully
conferred
upon it. There is nothing startling in this proposition – it is
a fundamental principle of the rule of law, recognized
widely, that
the exercise of public power is only legitimate where lawful. The
rule of law – to the extent at least that
it expresses this
principle of legality – is generally understood to be a
fundamental principle of constitutional law.”
[21]
(Footnote omitted.).
The power to approach a court for a
demolition order in s 21 is unquestionably a public power bestowed
upon local authorities. As
such, its exercise must conform to the
doctrine of legality. Put differently, a failure to exercise that
power where the exigencies
of a particular case require it, would
amount to undermining the legality principle which, as stated, is
inextricably linked to
the rule of law. See
AAA Investments (Pty)
Ltd v Micro Finance Regulatory Council and another
where the
court held as follows:
“
(t)he
doctrine of legality which requires that power should have a source
in law, is applicable whenever public power is exercised
. . . .
Public power . . . can be validly exercised only if it is clearly
sourced in law”
[22]
.
In
National Director of
Public Prosecutions v Zuma
[23]
Harms DP emphasized that the courts are similarly constrained by the
doctrine of legality, ie to exercise only those powers bestowed
upon
them by the law.
[24]
The concomitant obligation to uphold the rule of law and, with it,
the doctrine of legality, is self-evident. In this regard, the
court
below was constrained by that doctrine to enforce the law by issuing
a demolition order once the jurisdictional facts for
such an order
were found to exist.
[27] I conclude by reverting to what
Harms J said in
United Technical Equipment,
supra, with regard
to the City Council’s obligations to enforce the law in the
face of an ongoing illegality being perpetrated
by the appellant
company in that case:
“
The
respondent has not only a statutory duty but also a moral duty to
uphold the law and to see to due compliance with its town
planning
scheme. It would in general be wrong to whittle away the obligation
of the respondent as a public authority to uphold
the law. A lenient
approach could be an open invitation to members of the public to
follow the course adopted by the appellant,
namely to use land
illegally with a hope that the use will be legalise in due course and
that pending finalisation the illegal
use will be protected
indirectly by the suspension of an interdict.”
[25]
Ndlambe is in exactly the same position
as the respondent in the aforementioned case – it was
statutorily and morally duty
bound to approach the court below for a
demolition order in order to uphold the law. The court a quo, in
turn, had a concomitant
duty to uphold the doctrine of legality, by
refusing to countenance an ongoing statutory contravention and
criminal offence.
Conclusion
[28] As
stated, Lester has erected an unlawful structure on his property –
this fact is unchallenged and common cause. The
jurisdictional basis
for a demolition order in terms of s 21 has therefore been
established. All administrative actions, such as
the unanimous
resolution of Ndlambe’s full council on 5 December 2010 not to
approve the final revised plans, remain valid
and legally binding
until set aside on review or appeal. Absent any challenge on appeal,
internally in terms of s 9 of the Act
to a review board, or on review
in terms of PAJA to a competent court, that resolution had legal
consequences. In
Camps
Bay Ratepayers’ Association and another v Harrison and the
Municipality of Cape Town,
the
Constitutional Court,
[26]
in referring with approval to
Oudekraal
Estates (Pty) Ltd v City of Cape Town
[27]
said that:
“
[A]dministrative
decisions are often built on the supposition that previous decisions
were validly taken and unless that previous
decision is challenged
and set aside by a competent court, its substantive validity is
accepted as a fact. Whether or not it was
indeed valid is of no
consequence. Applied to the present facts it meant that the approval
of the February 2005 plans must be accepted
as a fact. If the
footprint issue was part of that approval, that decision must
likewise be accepted as a fact unless and until
it is validly
challenged and set aside”.
See
also:
Member of the
Executive Council for Health, Eastern Cape v Kirland Investments
[28]
.
I have already found that the court below erred in finding that it
had a discretion whether or not to issue a demolition order.
Absent
such discretion, the court below simply had to uphold the rule of
law, refuse to countenance an ongoing statutory contravention
and
enforce the provisions of the Act.
[29] I turn to the counter-application.
It was conceded on Lester’s behalf that in the event of this
court finding that the
court below was correct in ordering demolition
as sought by Ndlambe, supported by Haslam, the counter-application
would inevitably
be doomed to failure. In the counter-application
Lester sought an order that the dwelling be demolished partly only to
the extent
that its design would then accord with the plans submitted
by him to Ndlambe on 18 May 2010, alternatively 13 December 2010. But
Ndlambe’s council has already considered these final revised
plans and the accompanying representations and has rejected
them. As
stated, that resolution remained extant and legally binding as a
valid administrative act, unless and until set aside
by a competent
court. Moreover, it is undisputed that the final 2010 plans still
offend the existing building regulations because
of the height of the
roof. As pointed out above, an order for partial demolition as sought
by Lester, would amount to the sanctioning
of an ongoing illegality
and criminal offence, in the face an existing valid administrative
decision. This can never be countenanced
by a court. The
counter-application was therefore correctly dismissed by the court a
quo.
[30] Alkema J made certain adverse
findings against Lester, inter alia, as stated above, that he was not
the mere innocent victim
of Nlambe’s incompetence, as contended
by counsel, and further that the learned judge had ‘a sense,
nothing more, that
Lester may have orchestrated the situation in
which he now finds himself’. In my view it is not necessary to
come to any
conclusion on these aspects. The common cause material
facts suffice, namely that the structure was illegal and that Lester
had,
in the face of six preceding court orders against him, elected
to continue building operations without approved plans. As stated
(see para 6 above), Lester already acknowledged as early as 2002
during the first high court application before Pickering J, in
his
answering affidavit that, in the event of a successful review before
the high court, he would be obliged to demolish the existing
structure for lack of approved plans. And, as stated, the spectre of
demolition loomed large in the order of Plasket J (see para
11
above).
31] One is acutely aware of the
financial calamity, inconvenience and disruption which the demolition
of what is plainly and
expansive, luxurious dwelling, and a primary
residence to boot, would cause Lester. But the upholding of the
doctrine of legality,
a fundamental component of the rule of law,
must inevitably trump such personal considerations. The appeal must
therefore be dismissed
with costs, including the costs of two counsel
where so employed.
[32] In the result I make the following
order:
The appeal is dismissed with costs,
including the costs of two counsel, where so employed.
________________________
S
A Majiedt
Judge of Appeal
Appearances
For Appellant: R G Buchanan
SC
Instructed by:
DLA
Cliffe Dekker Hofmeyer, Johannesburg
Webbers,
Bloemfontein
For 1st Respondent: I J Smuts SC
Instructed
by:
Wheeldon
Rushmere & Cole, Grahamstown
Symington
& De Kok, Bloemfontein
For 2nd Respondents: EAS Ford SC
with TJM Paterson SC
Instructed
by:
Rushmere
Noach Inc, Port Elizabeth
McIntyre
& Van Der Post, Bloemfontein
[1]
Jaftha v Schoeman
;
Van Rooyen v Stoltz
[2004] ZACC 25
;
2005
(2) SA 140
(CC) para 28.
[2]
Ibid, para 29.
[3]
Lester’s counsel was
driven to an oblique concession in this regard in the course of his
argument.
[4]
Standard Bank of
South Africa Ltd v Saunderson
2006 (2)
SA 264
(SA) para 17
.
[5]
Benson v S A Mutual
life Assurance Society
1986 (1) SA 776
(A) at 783C–E.
[6]
See, inter alia, J B
Cilliers and C G van der Merwe ‘The ‘’year and a
day rule’’ in Sourth African
Law: do our courts have a
discretion to order damages instead of removal in the case of
structural encroachments on neighbouring
land?’
(1994)
THRHR
587
at 592.
[7]
Rand Waterraad v
Bothma
1997(3) SA 120 (O) at
130F-138G.
[8]
I
bid,
at 138D-G.
[9]
See inter alia:
Hornby
v Municipality of Roodepoort - Maraisburg and Arthur
1918 AD 278
at 296–298 (in this dictum Solomon JA recognizes
the existence of a discretion on principles of equity in English
law,
but appears to leave open the question whether those principles
apply in our law as well);
Johannesburg
Consolidated Investment Co Ltd v Mitchmor Investments (Pty) Ltd
1971
(2) SA 397
(W) at 405–407.
[10]
United Technical
Equipment Co (Pty) Ltd v Johannesburg City Council
1987(4)
SA 343 (T).
[11]
Setlogelo v Setlogelo
1914 AD 221.
[12]
Peri-Urban Areas
Health Board v Sandhurst Gardens (Pty) Ltd
1965
(1) SA 683
(T).
[13]
Ibid, at 685A.
[14]
United Technical
Equipment Co (Pty) Ltd v Johannesburg City Council,
supra,
at 347F-H.
[15]
Standard Bank of
South Africa Ltd v Swartland Municipality
2010(5)
SA 479 (WCC); see also
Standard Bank of
South Africa Limited v Swartland Municipality
2011
(5) SA 257
(SCA).
[16]
Ibid, para 22.
[17]
Pharmaceutical
Manufacturers of SA: In re Ex parte President of the Republic of
South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para
20. See also:
Minister of Justice and
Constitutional Development v Chonco
2010 (4) SA 82
(CC) para 27 and cases cited there.
[18]
Wade and Forsyth
Administrative Law 7ed (1994) 24.
[19]
Y Burns ‘A
rights-based philosophy of administrative law and a culture of
justification (2002) 17 SAPL: 279 at 285.
[20]
Fedsure Life
Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 40.
[21]
Ibid para 56; see also
para 58.
[22]
AAA Investments
(Pty) Ltd v Micro Finance Regulatory Council
[2006] ZACC 9
;
2007 (1) SA 343
(CC).
[23]
National Director of
Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
SCA 28.
[24]
Ibid
para
15.
[25]
United Technical
Equipment Co (Pty) Ltd v Johannesburg City Council,
supra,
at 348I-J.
[26]
Camps Bay Ratepayers
and Residents’ Association v Harrison
2011
(4) SA 42
(CC) para 62.
[27]
Oudekraal Estates
(Pty) Ltd v City of Cape Town
2004 (6)
SA 222
(SCA) para 31.
[28]
Member of the
Executive Council for Health, Eastern Cape v Kirland Investments
(Pty) Ltd t/a Eye & Laser Institute
(473/12)
[2013] ZASCA 58
(16 May 2013) para 20.