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[2021] ZAGPJHC 566
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Ten Napel and Another v Ekurhuleni Metropolitan Municipality and Others (44339/2020) [2021] ZAGPJHC 566 (30 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number:
44339/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
NO
Date:
30/9/2021
In
the matter between:
TEN
NAPEL, JAN
LOURENS
First Applicant
DU
RAND,
HUGO
Second Applicant
And,
EKURHULENI
METROPOLITAN MUNICIPALITY
First Respondent
SHILANE,
NYEPANE
PETRUS
Second Respondent
SHILANE,
MAPASEKA
RUTH
Third Respondent
JUDGMENT
FISHER
J:
Introduction
[1]
This
kind of application is one which gives a court much cause for
reflection. It involves property rights of a neighbour in relation
to
the breach by his fellow neighbour of the statutory township zoning
scheme and building regulations. The applicant seeks an
order that a
structure on the respondent’s property, which has been built at
considerable expense to the respondent, be demolished
because it was
built illegally.
[2]
The
order sought impacts directly on the property rights of the
respective neighbours. This judgment deals with the legal principles
relating to the discretion of a court to order demolition of a
building.
[3]
The
structure is near completion and comprises a block of eight flats
which have been built on the respondent’s property in
Baird
Avenue Parkhill Gardens, Germiston ( ‘the property’).
[4]
The
second respondent, to whom I will refer as ‘the respondent’
in that the third respondent who was his wife died some
time before
the application, is a retired police officer. He says that he has
invested a substantial portion of his pension pay-out
to develop the
block of flats in issue.
[5]
The
respondent concedes that the structure is illegal in that he has not
been granted the necessary rezoning of the property and
has no
approved building plans. He says that he was misled by the
professionals whom he employed to assist him in his development
of
the property to believe that he could start building without the
necessary approvals. He says that he is now on course to regularise
the illegal structure in that he has now put in the necessary
applications and undertaken to comply ex post facto with the
requirements
for the legalising of the structure. He contends that
there is a good prospect of legalisation of the structure in the
future in
accordance with the application which he has now brought
for the rezoning of the property and the amendment of the building
plans.
[6]
He
seeks on the basis of these alleged impending prospects and his
alleged innocence in trusting the professional advice given to
him as
to his entitlement to build, to persuade the court to stay or
postpone the proceedings pending the outcome of the applications
which may legalise the structures.
[7]
The
applicants reside in homes which are respectively adjacent to and
across the road from the property. They lodged objection immediately
on it coming to their attention that it was a non-compliant
structure. They attempted to do this through the administrative
channels
of the first respondent, which I shall call ‘the
Municipality’. When it became clear to them that these process
were
not having the desired effect in that the respondent continued
to build unabated, they had no choice but to seek redress from this
Court.
[8]
This
is part B of the application, part A having been disposed of by way
urgent interim relief in terms of which the respondent
was
interdicted from continuing with the building operations pending the
outcome of part B.
[9]
Relief
was also sought against the Municipality essentially ordering it to
perform its function of enforcing the by-laws and the
relevant
legislation to which it was subject, including the relevant Town
Planning Scheme, the National Building Regulations, and
the Building
Standards Act 103 of 1977 ( ‘the Building Standards Act’).
[10]
Costs in relation
to Part A were asked for against the Municipality in the event only
of its opposition. These costs are dealt with
later.
Legal
principles
[11]
It
is ‘of the essence of a town-planning scheme that it is
conceived in the general interests of the community’
[1]
[12]
The
importance of the rights which these restrictive conditions create in
favour of other landowners, has been dealt with by the
SCA in
Van
Rensburg and Another
NNO
v Naidoo and Others NNO
;
Naidoo
and Others NNO v Van Rensburg NO and Others.
[2]
The court sated as follows:
‘
Restrictive
conditions of the kind in question inure for the benefit of all other
erven in a township, unless there are indications
to the contrary.
They are inserted for the public benefit and, in general terms, to
preserve the essential character of a township’.
[3]
[13]
Clearly the
demolition of a property is devastating for the owner of the property
and is a far reaching remedy. The respective rights
of the property
owner of the illegal structure and those of the community affected by
such illegality are equally acute. Questions
are raised as to whether
a court can entertain continued illegality and, if so, under what
circumstances.
[14]
At
common law, the power to order demolition of a building ordinarily
finds application in the case of an encroachment by a building
onto a
neighbour’s property.
[4]
In this instance the exercise of the court’s discretion is
often informed by the ability to offer compensation in the form
of
damages in order to avoid the far reaching consequences of
demolition. But this can only occur by agreement.
[15]
In
Lester
v Ndlambe Municipality and Another
[5]
,
the SCA had occasion to examine whether a court had the authority to
order the transfer of portion of a property encroached upon
in the
absence of agreement. It held that it did not.
[16]
The Court found
also that, when a municipality brings an application under section 21
of the Building Standards Act, the doctrine
of legality requires
courts to enforce the statutory prohibitions and that a court faced
with such an application had no discretion
but to order demolition.
[17]
In
this case section 21 has no application. The applicants ask for an
order which arises out of the application of the common law
and more
specifically neighbour law.
[18]
The
power of a court to order demolition of an illegal structure on the
land of another has been recognised for decades. In
De
Villiers v Kalson
[6]
,Graham
JP embarked upon a detailed discussion of the prior authorities on
this point. He said ‘it will be observed that in
none of the
South African cases were the facts quite similar to the facts
disclosed in this case, for in the present case there
has been no
encroachment upon the ground of another, but an encroachment upon his
rights . . . I am inclined to think that
this difference makes
little or no change in the plaintiff's rights for many of the same
arguments used in favour of the view that
the Court has no discretion
but must grant an order for the removal, apply equally well to
encroachment on land and encroachment
on rights, such as exist in the
present case.’
[7]
[19]
In concluding that
there was a discretion vested in the Court the learned judge
president added:
‘
After
all there must surely be some discretion vested in a Court even in
cases involving breaches of what are termed negative
covenants
in the English Law, and I can find no authority in our law which
states that under no circumstances can the Court exercise
such a
discretion. It is quite clear that for the reasons stated in so many
of the English cases, the wrongdoer who encroaches
on another's
rights cannot be heard to say, unless there are some very special
circumstances, that a monetary compensation is sufficient,
for that
would be tantamount to compelling the plaintiff to consent to
expropriation, but on the other hand it would be equally
inequitable
to place the plaintiff in a position to extort wholly excessive
completion from the defendant by granting an order
for the removal of
the buildings in cases in which the facts disclose that a remedy in
damages would fully meet the justice of
the case. . .I have therefore
come to the conclusion that I have a discretion in this case to grant
an order giving the defendant
an option of paying damages in place of
removing his building if the plaintiff has satisfied me that he has
sustained damages.’
[8]
[20]
This is not however
a case where damages is an option. A court nonetheless has a
discretion which resides in the power to allow
for a period of time
to allow for the regularization of the position. There is nothing
that can be done to appease the applicant
neighbours but to have
their legal rights vindicated.
[21]
The court will thus
have to take into account relevant circumstances in order to come to
a just decision. These would include:
a.
the nature and extent of the deviation from the law;
b.
the reasons for such deviation with specific reference to the
culpability of the respondent;
c.
the steps taken by an applicant in relation to stopping the irregular
building from progressing which has been reached,
d.
the strength of the prospects of the regularisation of the unlawful
position;
e.
the time that it will take to regularise the position;
f.
the effect of the order on the parties personally;
g.
the general interests of the community.
[22]
The
lack of discretion which a court has in an application brought in
terms of section 21 may be interpreted to suggest the seriousness
with which the Legislature regards the failure to adhere to the
necessary building requirements. This may arguably also be a factor
which sets the tone for the exercise of the discretion in a matter
such as this. The conundrum which arises is why a court should
have
no discretion in the one type of application but a broad discretion
in the other, when both applications are aimed at achieving
the same
result? Put differently: Why should an applicant who exercises his
rights as neighbour under the common law be in a worse
position than
one who seeks an order compelling a municipality to act in terms of
section 21?
[23]
The
lack of discretion under section 21 was revisited by the SCA in
BSB
[9]
an obiter dictum in terms of which the Court said as follows in
relation to its pronouncement in in Lester:
‘
It
is nonetheless necessary to observe that if the municipality had
properly performed its functions and approached the court in
terms of
s 21 of the NBSA, the court would, on the strength of
Lester
,
have been obliged to grant an order of total demolition. If
Lester
is
correct a stark dichotomy would exist between our common law and our
statutory law in respect of substantially the same remedy.
For, in
terms of the former, a court would have a broad general discretion,
whilst in terms of the latter, a court would have no
discretion’
[10]
.
[24]
The concern
expressed by the Court was that the interpretation in
Lester
of section 21 could lead to a relatively minor infraction requiring a
demolition which would be disproportionate.
Background
facts
[25]
The title deed of
the Respondent's property is subject to the following restrictive
condition of title:
‘
(3)
The owner of the lot from time to time shall not have the right to
erect more than one dwelling house with all the necessary
out-buildings on the lot, nor to construct or erect reed or grass
huts thereon;....’
[26]
This is the same as
the zoning on all the properties adjoining it. The general character
of the neighbourhood is one of single dwelling
stands.
[27]
During
2019, the respondent who owns the property approached his neighbours,
including the applicants, to discuss removing the existing
conditions
of title which prescribe that only one dwelling could be built on the
property. He stated to the applicant that he wished
to erect a second
dwelling for his direct family. The applicants had no difficulty with
this proposal. There are in the neighbourhood
a number of home owners
who have, with the necessary approval, added what are commonly known
as granny flats or garden cottages.
[28]
During early 2020,
the respondent started with the construction of the ‘second
dwelling’ which he had discussed with
his neighbours. Soon
after the construction started,the applicants became concerned that
the respondent was not in fact constructing
a garden cottage. Their
suspicions were confirmed when a second floor was added. It soon
became clear that the respondent was constructing
a double storey
block of flats, with four flats on the ground floor and another four
flats on the first floor. The appearance of
the structure was no
longer reconcilable with an intention to build a second dwelling for
a relative. It is not in dispute that
the intention of the respondent
is to construct lettable units for his commercial benefit.
[29]
In
February 2020 the applicants began a process of objection through
their Ward Counsellor with the Municipality. This resulted
in a
notification to the respondent to stop the building operations. This
was ignored.
[30]
Due to the Covid
-19 lockdown work ceased on the building during March 2020. Work
commenced again in mid-October 2020. immediately
thereafter the
applicants recommenced with the process of objection by communicating
directly with officials at the Municipality.
[31]
On
03 November 2020 the applicants were informed by email that the
Municipality’s Building Inspector had issued a second notice
that the works be stopped.
[32]
This second order
to stop building also did not have the desired effect. On 09 November
the builders were on site and working at
pace. Trucks were
off-loading bricks and the works were nearing completion. By 25
November 2020 the project had reached a point
where the interior
walls were up and the external doors installed. The Municipality was
informed of this and confirmed that the
matter had been handed over
to its legal department.
[33]
By this stage the
respondent had brought an application for the rezoning of the
property to allow for nine residential units to
be built. On 25
November 2020 the respondent and officials of the Municipality met
and an agreement in terms of which the respondent
was afforded three
months to finalize the application for rezoning and the respondent
agreed that no further construction on the
project would take place.
[34]
The respondent did
not, however, cease the building operations but continued until the
order in the A portion of this application
was obtained by the
applicants in the urgent court.
[35]
The respondent has
lived in the property more than 20 years. He says that in early
December 2019 he decided that he wanted to develop
eight residential
units on his property for the purposes of letting them out. To this
end, he says, he approached Mr Simphiwe Ngoqo,
of Zimbali Consultant
(Pty) Ltd (‘Zimbali’) who conduct the business of inter
alia town and regional planners in order
to get the necessary
approvals for the project, including the rezoning thereof. In support
of this the respondent attaches a detailed
but unsigned quotation
from Zimbali.
[36]
The respondent does
not dispute that he started construction before the rezoning had been
approved and before he had approved building
plans. He says that he
was advised that he could do so by Mr Ngoqo.
[37]
The respondent
admits that he got the notices from the Municipality to stop
construction. He admits that he ignored the notices.
He says that
this was because he assumed that Zimbali was ’on top of the
situation.’ He says that it later came to
his attention that
Zimbali had not carried out its mandate. He says that he has since
appointed a new Town Planner, Mr Jan Schoeman
who is attending to the
application for rezoning. He acknowledges that the building plans are
non-compliant in that the balconies
of the block of flats look over
neighbouring properties. He says this will be amended. He says the
building plans were drawn were
drawn by a person who he knows only as
‘Kenny’ of Bana Ba Mologadi Architects.
Discussion
[38]
The respondent
admits that he knew that a process of approval was necessary in order
to enable the development of his property to
take place. This stands
to reason. Most people understand that there are town planning
schemes and building regulations to be overcome
for development on
residential property to take place. The fact that the respondent is a
retired police officer is indicative of
a basic understanding of
legal principles. Regardless of any specialised knowledge as to town
planning law or building law this
would, to my mind, entail an
understanding that the thing that permission is sought for may not be
done until such permission is
given by the relevant authorities
.
[39]
The fact that the
development was started before the permission was granted suggests a
disregard for the legal prescripts pertaining
to the preservation of
the rights of the community in which the respondent lives. I do not
put any store by the respondent’s
assertion that he believed
that he could build without the permission because he was told that
he could do this by Zimbali.
[40]
The nature and
extent of the development is significant as is its deviation from the
legal prescripts. It entails a movement from
single dwelling
residential property to a high density residential situation. There
is no case made out for the contention that
approval is likely to be
granted for such a development.
[41]
The respondent
admits that the proposed building plans are substantially
non-compliant from a structural point of view also.
Conclusion
[42]
In applying the
above factors in relation to the exercise of my discretion I must
regrettably find against the respondent.
[43]
The reasons
for the marked deviation from the law is explained only by the
assertion that the respondent believed that he did not
have to comply
with the law because he was applying for permission to depart
therefrom. This, is an untenable explanation.
[44]
As I have said no
case is made out as to any prospects of success in relation to
achieving the rezoning and removal of restrictive
conditions
applicable to the property. Such an application is subject to
objections of, at least, the applicants and will in all
likelihood
take a substantial period of time to be brought to conclusion
including the exhausting of internal remedies and the
perhaps a
judicial review.
[45]
There is no reason
why the neighbourhood should be faced with the unfinished and empty
structure indefinitely. The applicants make
the point that the
presence of the structure and the uncertainty of the process
surrounding it is detrimental to the value of their
properties and
their ability to attract buyers. To my mind this stands to reason.
[46]
Against this I must
weigh the fact that the respondent has invested approximately
R800 000 of his pension pay-out in the development.
Unfortunately, this wasted investment occurred as a result of the
failure of the respondent to follow the law. It appears that
he has
taken the position that it is easier to ask for forgiveness than for
permission. For this reason, he continued building
works in the face
of notices to stop construction and continued to build even after he
had agreed with the Municipality that he
would not do so.
[47]
To my mind
the applicants adopted the correct procedure as soon as they noticed
that there was an infringement of the law. They
have been in constant
contact with the Municipality reporting all the while what was
happening on the property on an almost daily
basis. The fact that the
applicants had to resort to an urgent application to enforce their
rights suggests that the system has
failed them.
[48]
In sum, the
respondent has, on his own version, broken the law. The presence of
the structure continues this unlawful position.
This Court cannot in
the circumstances of this case allow for any perpetuation of the
flouting of these important legal prescripts.
[49]
Although it was not sought, I have
deemed it prudent to order that the demolition take place
under the
supervision of a structural engineer.
Costs
[50]
Costs were sought
against all respondents on the attorney- client scale. The costs were
sought against the Municipality on the basis
that it failed to carry
out it’s statutory function. The position of the Municipality
is that at the time that the application
was brought, it had already
entered into a legal process in that it had referred the matter to
its legal department. Whilst this
may be so, the Municipality saw fit
to oppose part A of the relief claimed. It argues that it did so to
bide its time whilst it
took legal advice on whether to actually
oppose the application. The advice was ultimately that it should not
persist with its
opposition and it followed that advice.
[51]
The applicants in
the notice of motion asked for costs against the Municipality in part
A, only in the event of opposition. It is
of no moment that the
opposition was merely to buy time whilst legal advice was sought. The
fact is, the applicants prepared for
the part A hearing on the basis
that there would be opposition from the Municipality. The noting of
opposition should not be used
as a stopgap. Thus the applicants are
justified in seeking the opposed costs against the Municipality in
relation to part A.
[52]
The applicants also
seek the costs of part B of the application against the Municipality.
There was no opposition by the Municipality
to the part B relief. The
applicants argue that costs against it are warranted because of its
failure to properly exercise its
function. To my mind there is no
basis for a costs order against the Municipality in relation to part
B.
[53]
As far as the
respondent is concerned, there is no reason why the costs should not
follow the result.
[54]
I am disinclined in
all the circumstances to order costs on a punitive scale.
Order
[55]
I thus make an
order which reads as follows:
1.
The new multi-dwelling structure on Portion
2 of Erf 57 Parkhill Gardens Township (‘the structure’)
is unlawful for
being constructed in contravention of the first
respondent's Town Planning Scheme of 2014 and of restrictive
condition no. 3 contained
in Title Deed No T26269/2001 and without
the prior approval of building plans by the first respondent as
required in terms of sections
4 and 7 of the National Building
Regulations and Building Standards Act, no. 103.
2.
The second respondent is ordered forthwith
to cause the structure to be demolished in its entirety and to remove
all rubble emanating
from the demolition from the structure, such
demolition and removal to be at his own cost.
3.
The second respondent is, at his cost, to
take all necessary precautions, including the employment of a
structural engineer, to
guard against any risk or damage being
occasioned by such demolition to buildings which are situated close
to the structure and
which are at risk of damage as a result of the
demolition.
4.
The second respondent is to pay the
costs of this application, inclusive of those of Part A.
5.
The first respondent is to pay the
costs of part A of the application, such liability for payment to be
joint and several with that
of the second respondent, the one paying
the other to be absolved.
FISHER
J
HIGH
COURT JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing:
26 August 2021.
Judgment
Delivered:
30 September 2021.
APPEARANCES:
For
the applicants:
Adv M Verster.
Instructed
by:
BMV Attorneys.
For
the 1
st
Respondent:
Adv A Pillay.
Instructed
by:
N-Incorporated.
For
the 2
nd
& 3
rd
Respondents:
Adv S Maritz.
Instructed
by:
Mark-Anthony Beyl Attorneys.
[1]
The
Administrator,
Transvaal and The Firs Investments (Pty) Ltd v Johannesburg City
Council
1971
(1) SA 56
(A)
at 70D.
[2]
2011
(4) SA 149 (SCA).
[3]
Ibid at at para 37.
[4]
BSB
International Link CC v Readam South Africa (Pty) Ltd
(279/2015)
[2016] ZASCA 58
;
[2016] 2 All SA 633
(SCA);
2016 (4) SA 83
(SCA) (13
April 2016) at 25 and 26.
[5]
514/12)
[2013] ZASCA 95
;
[2014] 1 All SA 402
(SCA);
2015 (6) SA 283
(SCA)
(22 August 2013)
[6]
1928
EDL 217
[7]
Ibid at
(at
229-230):
[8]
Ibid
at 231
[9]
Supra n.4
[10]
Ibid at para 27.