JUDGMENT 014507/2024 1
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 014507/2024
REPORTABLE
OF INTEREST TO OTHER JUDGES
REVISED
DATE: 29/02/02024
In the matter between:-
RUOIGOR ROSSEAU KLEYN N.O. First Applicant
LORINDA ROUX N.O. Second Applicant
(in their capacities as trustees of the Familie Kleyn Trust: 1209/96)
JUDGMENT 014507/2024 2
vs
MARIA PLANTINA TJETJE BOIKANYO First Respondent
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Second Respondent
Coram: Kooverjie J
Heard on: 20 February 2024
Delivered: 29 February 2024 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to the
CaseLines system of the GD and by release to SAFLII. The date and time for hand -
down is deemed to be 11:00 on 29 February 2024.
Summary: For a party to have locus standi, it must demonstrate that it has a direct
interest in the matter and that its rights are being infringed or is likely to be infringed.
The applicant has made out a case for final relief. The relief sought in terms of
Section 14(1) of the Building Standards Act is impermissible in law.
ORDER
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It is ordered:-
1. The matter is urgent.
2. The first respondent is interdicted from continuing with any building
activities on Unit 2 in the Sectional Title Scheme of the Mount Like Site,
Scheme Number: 1118/1998, Waterkloof Ext. 1 (1[…] C[…] A[…], W[…] H[…],
P[…]) until the building plan approval is furnished by the second respondent in
terms of Section 4 (1) of the National Building Regulations and Building
Standards Act, 103 of 1977.
3. The first respondent is ordered to pay the costs of the application.
JUDGMENT
KOOVERJIEJ
[1] In this urgent application the applicants, in their capacities as trustees of the
Familie Kleyn Trust (the Trust), seek urgent interdictory relief against the first
respondent, Ms Boikanyo. In essence, the Trust wishes to constrain the first
respondent from continuing with building construction (building works) on her
premises until the building plan approval is furnished by the Municipality (the second
respondent) in terms of Section 4(1) of the National Building Regulations and
Building Standards Act 103 of 1977 ("The Building Standards Act''). This application
was instituted on Monday, 12 February 2024.
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[2] The further relief sought was: to interdict the respondent from occupying or
allowing occupation of the property in the absence of occupancy certificate issued by
the Municipality in terms of Section 14 of the Building Standards Act and to direct
that the Municipality continues with its enforcement steps in terms of the Building
Standards Act against the respondent should she contravene.
URGENCY
[3] The Trust is required to firstly pass the test of urgency. The first respondent
argued that this application is superfluous. Its contentions are twofold: firstly, the
building activities was ceased days prior to the urgent application being launched,
and secondly, the Municipality is the authority mandated to ensure that Ms Boikanyo
complies with the provisions of the relevant legislation entrusted to it.
[4] In response, the Trust contended that it had on numerous occasions sought an
undertaking from Ms Boikanyo to cease with the building activities. Not once was
such an undertaking made. I was referred to various correspondences commencing
on 2 February 2024 until 9 February 2024 in this regard.
[5] The Municipality served the Section 4(1) notice on 6 February 2024. Therein
Ms Boikanyo was, inter alia, requested to cease building activities and remove all
building materials from the sidewalk of the property. On 7 February 2024, when the
respondent's instructing attorney came on record, there was still no undertaking that
the building construction would cease.
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[6] The applicants' instructing attorneys persisted with their communication. On 8
February 2024, once again, Ms Boikanyo was requested to cease the building
works. Again the respondent's attorneys, in their response, on 9 February 2024,
make no mention of the status of the building works nor was an undertaking
furnished.
[7] The Municipality further advised the applicant that a Section 4(1) notice was
issued on 5 February 2024. Ms Boikanyo however alleged that she only received the
notice on Thursday of that week, that is also 8 February 2024. Upon receipt thereof
she immediately took steps to cease the building works. On her own version, she
confirmed that workers were on site until Saturday, 10 February 2024. She explained
that they were requested to store the building materials and clean the site.
[8] However the photographs portray the contrary. They depict that workers
continued with the building works, even after the Section 4(1) notice was issued.
[9] It is common cause that the builders were still on the premises on Saturday, 10
February 2024. Since the applicants were left in the dark of Ms Boikanyo's plans
going forward, they instituted this application. Under these circumstances this
application was deserving of an urgent hearing. It was only when the answering
papers were filed did the applicants learn that the respondent had decided to cease
the building works.
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LOCUS STAND/ OF THE APPLICANT
[10] The applicants' locus standi to institute these proceedings was placed in
dispute.
It was contended that the Trust was only able to institute this application with the
authorization of the body corporate. Alternatively, if the applicants were acting in its
their personal capacity then it was obliged to follow the procedure as set out in
Section 9 of the Sectional Title Scheme Management Act 8 of 2011 ("STSM") to
seek the appointment of a curator ad /item.
[11] It is not in dispute that the Trust is the owner of the property that is adjacent to
the respondent's property. Simply put, they are neighbours. The applicants argued
that this application was not instituted in terms of the Sectional Titles Act 95 of 1986
or the Sectional Title Scheme Management Act. Instead this application was
instituted in its capacity as an owner of the adjacent property.
[12] In this regard the applicant relied on various authorities. Our courts have
endorsed the principle - that a party has locus standi if it can show that it has an
interest and that its rights are being infringed or likely to be infringed. 1 In this case
the applicants have a direct interest in terms of its status as owner of its property. In
the Lester matter2, the Supreme Court of Appeal appreciated the
1 Giant Concens CC v Ronaldo lnvesrments (Pty) Ltd and Others 2013 (3) BCLR 251 (CC) at
paragraph [41J
2 Lester v Ndlambe Municipality and Another 2016 (6) SA 283 (SCA) [2013) ZASCA 95, at paragraph
[22]
JUDGMENT 014507/2024 7
sui generis nature of neighboring relationships and echoed that they are aimed to
achieve a just and equitable result.
[13] I am further surprised that this point was raised. All along, the Municipality
indicated to Ms Boikanyo that the Trust was firstly required to approve the building
plans before the matter could be considered by it. The question that begs an answer
is why was approval sought from the applicants (the owner) regarding the building
plans? This illustrates that approval was sought from the Trust which has a direct
interest in the matter. It was further common knowledge that the body corporate was
not in existence at the time. This right of the Trust must be distinguished from the
enforcement processes that the Municipality obliged to effect.
INTERDICTORY RELIEF
Clear right
[14] If the applicants are to succeed in obtaining final relief, they must satisfy this
court that they have a clear right; that there is actual injury or injury that is
reasonably apprehended; and further that there is an absence of satisfactory
remedy. As alluded to above, the applicants have an interest in this matter. The
properties of the parties are adjacent to each other. Building construction on a
neighboring property can affect the other party. It is not in dispute that even though
the Municipality issued the contravention notice, the building construction continued
until the end of the week, at least until 8 February 2024. The workers were even on
site on Saturday, 10 February 2024.
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[15] The photographs is evidence of the fact that workers were on site and that
construction works continued. The respondent had not questioned the veracity of
these photographs in its papers, although it was raised in the oral submissions. The
applicants' attorney in fact shared the photographs with the respondent's attorney
and there was no response negating this fact. In my view, therefore, the Trust has a
clear right to institute these proceedings.
Injury reasonably apprehended
[16] The respondent's contention that no harm has been caused to the elderly
mother of the applicants, is an unassailable argument. The applicants'
communicated with the respondent concerning the issue of the builders being on the
property at night and that during the day the building activities would create a
security risk. This risk was discussed with the respondent. From the outset, on 31
January 2024, in a letter, the respondent was reminded:
"We kindly request as discussed on the meeting, that you assist in the matter
of security of the properties, as we understand your Builders sleep and make
fire on the property. As you can imagine, this is of great concern to the
Trustees ... having their elderly mother stay on the adjacent property."3
[17] Hence there could be no doubt that the respondent was well aware of the
security risk issue. In the minutes of the meeting it was recorded that measures
3 Annexure FA 14
JUDGMENT 014507/2024 9
would have to be put in place to mitigate the security risk. The respondent undertook
to make provision for security services.
[18] All the applicants are required to show at this point is that there is a well -
grounded apprehension of irreparable harm. In Westar and Others v Minister of
Police and Others 1984 (4) SA 230 (SWA) at 244 4 the court defined the term "a
reasonable apprehension of injury" and stated that it is a situation "which a
reasonable man may entertain on being faced with certain facts ... The applicant for
an interdict is not required to establish that, on a balance of probabilities, flowing
from the undisputed fact, injury will follow; he has only to show that it is reasonable
to apprehend that injury will result However the test of apprehension is an objective
one . .. This means that, on the basis of facts presented to him, the Judge must
decide whether there is any basis for the entertainment of a reasonable
apprehension by the applicant.”
In my view the applicants have shown that it was reasonable to apprehend that
prejudice will result.
No alternative remedy
[19] I am also satisfied that the applicants approached this court as the last resort.
This is evident from the various correspondence sent to the respondent in the week
that the construction took place. No undertaking was given that the construction
would be halted. The relief sought by the applicants was to stop the building works.
4 see also Free State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining Co Ltd and
Another 1961(2) SA 505 W at515
JUDGMENT 014507/2024 10
By seeking recourse later and even claiming damages could not be a satisfactory
remedy. The main concern was the safety of the elderly mother on the property.
[21] The purpose of an interdict is to put an end to conduct in breach of the
applicants' rights. The applicant invokes the aid of the court to order the respondent
to desist from such conduct. The existence of another remedy will only preclude the
grant of an interdict where the proposed alternate will afford the injured party a
remedy that gives it similar protection to an interdict that is occurring or is
apprehended.
[22] This court has an inherent discretion to grant relief to the applicants if
circumstances warrant the relief sought and if the order will have a practical effect.
The relief sought, in my view, would have a practical effect. The respondent
commenced building works knowing and appreciating that it was unlawful to do so.
Despite the Section 4(1) notice being issued, no undertaking was ever forthcoming.
At the time of instituting this application and presently the applicants are entitled to
the protection they seek.
RELIEF SOUGHT RE OCCUPATION
[23] An order was further sought against Ms Boikanyo, interdicting her from
occupying or allowing to be occupied, the property in the absence of an occupying
certificate in terms of Section 14 of the Building Standards Act.
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[24] The respondent correctly contended that Section 14 does not find application
to the circumstances of this matter. There was no approval from the Municipality and
neither was the building completed. Section 14 applies only to buildings already
erected with the Municipality's approval.
[25] I conclude that the reliance on Section 14(1)(a) was misplaced. In Berg River
Municipality 5 the court explicitly held that Section 14(1)(a) does not apply to
buildings that are being erected without local authority's approval.
[26] The court clearly stated that Section 14 only applies to buildings erected with
the local authority's approval under the Act. In order for a building to be used or
occupied it must first be erected with approval and then permission to use or occupy
the building must be obtained. The court further commented that it is common sense
that a unlawfully erected building as contemplated in Section 4(1) cannot be
occupied unless approval is granted.6 At paragraph [36], the court concluded:
"The lawmaker did not deal in Section 14 with buildings for which no approval
existed because the lawmaker took it for granted that such building could not
lawfully be erected and obviously could not be occupied."
[27] In the premises, the relief sought is impermissible in law. If the applicant
sought relief in terms of the common law or as a consequence of Section 4(1}, it
would be a different matter.
5 Berg River Municipality v Zelpy 2065 (Pty) Ltd 2013 (4) SA 154 WCC (8 April 2013)
6 Paragraph [3 I] of Berg River
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RELIEF RE MUNICIPALITY TO ENFORCE THE PROVISIONS OF THE ACT
[28] In my view, the applicants are further not entitled to the order directing the
Municipality to persist with their enforcement. The Municipality is constitutionally
ordained to carry out its obligations in terms of the prescribed legislation entrusted to
it. It has initiated its enforcement and is obliged to monitor compliance. In my view,
the relief sought cannot be sustained.
[29] I was further referred to the matter of Beeslaar 7 which I find to be
distinguishable on the facts. Firstly, the respondent, in Beeslaar, gave an
undertaking the construction would be halted until the renewal of the building plans.
In this instance, no such undertaking existed. The applicant continued with the
building works despite the issuance of the Section 4(1) notice already on 5 February
2024. With the builders still being on site until Saturday, 10 February 2024, the
applicant could not have known that the respondent had decided to cease the
building works.
[30] Secondly, in this matter, it was common cause that a security risk was
prevalent. The respondent, in fact. agreed to make provision to alleviate the risk from
the outset. The applicants demonstrated that there was a well -grounded
apprehension of harm. In Bees/aar however the court concluded that he requirement
of harm was not met.
7 Beeslaar and Another v Mokane and Others [2023] ZAGPPHC 303; 2023/033278 (28 April 2023)
JUDGMENT 014507/2024 13
COSTS
[31] In exercising my discretion and having regard to the circumstances of the
matter. I am of the view that a punitive costs order is not justified.
H KOOVERJIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
Counsel for the applicant: Adv. JA Venter
Instructed by: Fuchs Roux Inc Attorneys
Counsel for the first respondent: Adv AJ Lapan
Instructed by: Harkison Nungul Inc Attorneys
Clo Maphalla Mokate Conrandie Inc
Date heard: 20 February 2024
Date of Judgment: 29 February 2024