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2021
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[2021] ZAGPPHC 171
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Stuart and Another v National Home Builders Registration Council (89999/2018) [2021] ZAGPPHC 171 (29 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 89999/2018
NOT
REPORTABLE
LESLIE
ALEXANDER STUART
First
Applicant
ELMO-YORK
STUART
Second
Applicant
And
NATIONAL
HOME BUILDERS REGISTRATION COUNCIL
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1] The applicants claim
the following relief:
“
1.
That the decision by the Respondent dated 2 November 2018, (Annexure
“N”
to the founding affidavit), declining the Applicants’
application for exemption in terms of section 29 read with section
10A and pertaining to sections 10 and 14 of the Housing Consumer
Protection Measures Act, Act 95 of 1998, is set aside.
2.
It is declared that the Applicants are exempted in terms of section
29 read with
section 10A of the Housing Consumers Protection Measures
Act, Act 95 of 1998, and that the Applicants are owner builders as
defined
in the said Act, alternatively it is declared that the
Applicants’ application for the aforementioned exemption is
referred
back to the Respondent and same shall make its decision
whether or not to exempt the Applicants as aforementioned within
thirty
days of the date of this order.
3.
The Respondent is ordered to pay Applicants’ costs of the
application.”
Issues common cause or
not serious in dispute
[2]
The applicants are the registered owners of an immovable property
known as Portion 1 of
Stand No. 805, Faerie Glen Ext 1 with street
address 469 Vermont Crescent, Faerie Glen, Pretoria.
[3]
The applicants decided to build a residence on the property and to
undertake the building
work themselves. Upon completion of the
building work, the first applicant will reside in the residence.
[4]
The Housing Consumers Protection Measures Act, 95 of 1998 (“the
Act”),
which was enacted to make provision for the protection
of housing consumers against unscrupulous home builders, is
applicable to
the building works the applicants intend to embark on.
[5]
The Act has various
sections that need to be complied with prior to the commencement of a
building project. Bearing the object of
the Act in mind, section 10A
read with section 29 of the Act, provides that owner builders,
such as the applicants, may
be exempted from the various mandatory
provisions of the Act.
[6]
The applicants duly
submitted an application for exemption to the respondent, the
National Home Builders Registration Council which
was established in
terms of section 2 of the Act to
inter
alia
represent the
interests of housing consumers and to regulate the building industry.
[7]
On 2 November 2018 the
respondent communicated its decision to the applicants, to wit:
“
8.
After due consideration of your application, the Committee has
resolved to decline
your application due to your failure to undertake
the technical assessment. In light of the above, the granting of your
application
will not be in the public interest, will undermine the
objectives of the Act or the effectiveness of the Council and the
refusal
to grant the exemption will not extremely prejudice your
rights.”
Issue in dispute
[8]
The only issue in
dispute is whether the respondent’s reason for the denial is
reasonable or stands to be reviewed and set
aside.
[9]
The requirement that an
owner builder must undertake a technical assessment in order to
qualify for an exemption in terms of section 29
of the Act, was
decisively dealt with in
Ruiters
v Minister of Human Settlements and Another
2016
(1) SA 239
WCC.
[10]
The court had regard to
the structure and objectives of the Act and held as follows at
paragraphs [61] and [62]:
“
Technical
Competence
[61]
The provisions of the Act relating to an owner builder do not
expressly require proof of his
or her technical competence. No law of
general application limits the use of an owner builder’s
property on the basis that
he or she is not technically competent to
construct his home. The limitation in the Act on lack of technical
construction capacity
relates only to a home builder. The
construction of a building by an owner builder, however, is required
to comply with plans approved
by the local authority as provided for
in the National Building Regulations Act. A certificate authorising
occupancy will only
be granted in terms of s. 14 of this Act if the
building has been erected in accordance with the provisions of the
Act and the
conditions on which approval was granted; and an
electrical certificate of compliance with applicable laws has been
issued; and
certificates relating to design, erection and
installation of the structural, fire protection and fire installation
systems have
been submitted.
Compliance with
NHBRC requirement
[62]
If an applicant for exemption satisfies the Council that he or she
fulfils the definition of
an owner builder, that would be sufficient
to eliminate him or her from regulation as a home builder. Such
regulation, under s. 10(2),
s. 14(1), s. 14A, as well
as the NHBRC Technical requirements prescribed under s. 7(2)(d),
only apply to a home
builder. The Act does not require an applicant
who satisfies the Council that he or she is an owner builder also to
satisfy the
Council that the construction complies with NHBRC
technical requirements.”
(footnotes
omitted)
[11]
The judgment is well
reasoned and Mr Baloyi, counsel for the respondent could not provide
any reasons why the
dicta
in the judgment is not applicable to the facts
in
casu
.
[12]
In the result, the
applicants are entitled to the relief claimed in paragraph 1 of the
notice of motion.
Remedy
[13]
Section 8(1)(c)(ii)(aa)
of the Promotion of Administrative Justice Act, 3 of 2000, (“PAJA”)
provides that a court
in proceedings for judicial review may order:
“
(c)
setting aside the administrative action and —
(ii)
in exceptional cases-
(aa)
substituting or varying the administrative action or correcting a
defect resulting from the administrative
action;”
[14]
In
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another
2015
(5) SA 245
CC considered the legal principles applicable to a
substitution order as envisaged in section 8(1)(c)(ii)(aa) at
paragraph
[47]:
“
To
my mind, given the doctrine of separation of powers, in conducting
this enquiry there are certain factors that should inevitably
hold
greater weight. The first is whether a court is in as good a position
as the administrator to make the decision. The second
is whether the
decision of an administrator is a foregone conclusion. These two
factors must be considered cumulatively. Thereafter,
a court should
still consider other relevant factors. These may include delay, bias
or the incompetence of an administrator. The
ultimate consideration
is whether a substitution order is just and equitable. This will
involve a consideration of fairness to
all implicated parties. It is
prudent to emphasise that the exceptional circumstances enquiry
requires an examination of each matter
on a case-by-case basis that
accounts for all relevant facts and circumstances
.”
[15]
In
casu
,
the respondent had knowledge of the
Ruiters
decision but
refused to apply the decision to the facts of this matter because “
it
does not agree with the decision”
.
[16]
It is disconcerting
that an administrative body would venture into the sphere of the
judiciary, more especially when there has been
a final announcement
on the interpretation of an Act that regulates the affairs of the
administrative body.
[17]
The only reason for
denying the applicants’ application for exemption was the
failure by the respondent to apply the law to
the facts. This is not
an instance where the factors to be taken into account in reaching a
decision falls exclusively within the
knowledge of the
decision-maker.
[18]
It will serve no
purpose to refer the matter back to the respondent. To the contrary,
a considerable amount of time has lapsed since
the decision was
taken, namely November 2018 to March 2021 and the interest of justice
dictates that the matter should be finalised
promptly.
[19]
In the result, I am
prepared to issue a substitution order as envisaged in
section 8(1)(c)(ii)(aa) of PAJA.
ORDER
[20]
In the premises, I
issue the following order:
1.
The decision by the
Respondent dated 2 November 2018, declining the Applicant’s
application for exemption in terms of section 29
read with
section 10A of the Housing Consumer Protection Measures Act, Act
95 of 1998, is set aside.
2.
It is declared that the
Applicants are exempted in terms of section 29 read with
section 10A
of the
Housing Consumers Protection Measures Act,
Act
95 of 1998, from complying with the provisions of the Act.
3.
The Respondent is
ordered to pay the costs of the application.
N. JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
16 March 2021
(Virtual hearing.)
DATE
DELIVERED PER COVID19 DIRECTIVES:
29 March 2021
APPEARANCES
Counsel
for the Applicants:
Advocate D. van den Boogert
Instructed
by:
E.Y. Stuart Inc. Attorneys
Counsel
for the
Respondent:
Advocate F. Baloyi
Instructed
by:
Matabane
Incorporated