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[2015] ZAKZDHC 80
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EThekwini Municipality v Bhardwaj (3135/2015) [2015] ZAKZDHC 80 (11 September 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL LOCAL DIVISION, DURBAN
CASE
NO: 3135/2015
DATE:
11 SEPTEMBER 2015
In
the matter between:
ETHEKWINI
MUNICIPALITY
.......................................................................................
APPLICANT
And
DEEPAK
BHARDWAJ
..................................................................................................
RESPONDENT
JUDGMENT
Date
of Judgment delivered: 11 September 2015
I
L TOPPING, AJ
:
[1]
In this application, the Applicant seeks an
order declaring the Respondent to be in contempt of an order granted
by this court on
the 26
th
of February 2015, in what I shall hereinafter refer to as the main
application. It was submitted by both parties that it would
be
appropriate for me to have reference to the main application in my
consideration of this application.
[2]
The main application was instituted, as one
of urgency, by the Applicant on the 18
th
of February 2015. In that application, the Applicant sought a
rule
nisi
to issue, in essence, calling upon
the Respondent to show cause why an order should not be granted
interdicting and restraining
him from undertaking any building
construction work upon an immovable property owned by him, which is
situated at [2…..]
[W…..] [C….] Road, [A…….],
KwaZulu-Natal (“the property”). Interim relief was also
sought
interdicting the Respondent from continuing with such
construction pending the final determination of the main application.
[3]
The relief sought in the main application
is premised on the Respondent’s alleged non-compliance with the
provisions of section
4 of the National Building Regulations and
Building Standards Act, No. 103 of 1997 and contravention of the
South Town Planning
Scheme of the Applicant. It is alleged by the
Applicant that the Respondent had, pursuant to the provisions of
section 4 of the
Act, made application, and had obtained its
approval, for the proposed construction of a dwelling upon the
property. The Applicant
however contended that, upon inspection of
the construction actually taking place, such was not in accordance
with the building
plan that had been submitted by the Respondent at
the time of obtaining its approval as aforesaid.
[4]
The order forming the subject of this
application was granted by consent of both parties on the 26
th
of February 2015. The relevant portion of that order, insofar as it
relates to this application, reads as follows:
“
1.
A
rule nisi
do hereby issue calling upon the Respondent to show cause if any to
this Honourable Court on the 24
th
day of March 2015 at 09h30 or so soon thereafter as the matter may be
heard why an order in the following terms should not be granted:
1.1
the Respondent is interdicted and
restrained either directly or indirectly, itself or through any other
means or through any third
party or parties from undertaking any
building construction work upon the immovable property owned by the
Respondent being:
Portion
[1…..] of Erf [ …….], [A……]
Located
at [2…….] [W……] [C…..] Road,
[A…….]
(“the
property”)
save
for such building construction work as is foreshadowed by the plan
(“the approved building plan”) being approved
plan number
[SR1………] bearing the date May 2013 which was
approved by the Applicant as evidenced by the endorsement
dated 15
th
October 2013 appearing thereon, a copy whereof is annexed to the
Applicant’s founding affidavit to the application marked
“A”;
………
1.4
the Respondent is interdicted and restrained from engaging in and/or
undertaking any trade and/or any commercial activities
of whatsoever
nature upon the property unless and until the Respondent secures
express written approval and authority in accordance
with the
applicable legislation sanctioning such trade and/or commercial
activities;…..
2.
That
paragraphs 1.1 and 1.4 hereof shall operate as an interim order with
immediate effect pending the return date of the
rule
nisi
.”
That
rule nisi
was extended on the 24
th
of March 2015 until it is either confirmed or discharged.
[5]
It is not contended by the Applicant in
these proceedings that the Respondent has engaged in any trade or
commercial activities
on the property subsequent to the grant of the
order. It is however contended that the Respondent has continued with
the construction
of a building which is contrary to the plan which
was approved by it and that such construction has taken place
subsequent to the
grant of the order on the 26
th
of February 2015. It is also contended that, in so doing, the
Respondent has also acted in flagrant disregard of the provisions
of
the National Building Regulations and Building Standards Act, the
South Town Planning Scheme of the Applicant and the provisions
of the
KwaZulu-Natal Planning and Development Act, No. 6 of 2008.
[6]
In
support of this contention, the Applicant has put up a copy of the
relevant building plan submitted by the Respondent in its
application
for the Applicant’s approval pursuant to the provisions of
section 4 of the National Building Regulations and
Building Standards
Act.
[1]
It is common cause that
this is the approved plan. If one has reference to the plan, it is
evident that the proposed building to
be constructed is a dwelling
which runs diagonally across the property parallel to the
south-westerly boundary, which borders on
[W…..] [C…..]
Road. The proposed building itself consists of an entrance hall,
lounge, dining area, kitchen and two
bedrooms. Adjacent to the
building, bordering on the northern boundary, is a double garage and
an entertainment/games area. Also
depicted on the plan is a 2m height
boundary wall running along the south-west boundary adjoining [W……]
[C……]
Road. Of relevance to this application, is that
the area between the proposed dwelling and the south-west boundary
wall consists
of an open area of paved driveway, which also runs
parallel to the wall and the dwelling itself. No structure is
envisaged in this
area.
[7]
It is common cause that according to the
Applicant’s South Town Planning Scheme, “all erven”,
except where otherwise
stated, are subject to a 7,5m building line.
It is also common cause in these proceedings that the Respondent has
failed to obtain
the Applicant’s “special consent”,
pursuant to the provisions of section 67
bis
of the Town Planning Ordnance, No. 27 of 1949, read with Schedule 2
of the KwaZulu-Natal Planning and Development Act, No. 6 of
2008, for
a relaxation of the building line. The effect of such failure in the
present instance is that no building may be constructed
within a 7,5m
distance of the Respondent’s south-western boundary. I shall
refer to this area as the “prohibited area”.
[8]
If
one has reference to the papers filed in the main application, it was
contended that it had come to the Applicant’s attention
that
the Respondent had constructed vertical columns within the prohibited
area.
[2]
In support of its case,
the Applicant put up a schedule of photographs, alleged to have been
taken on the 1
st
and 6
th
of February 2015, which depict the state of construction on the
Respondent’s property as at that stage.
[3]
It is evident that the photographs were taken from the exterior of
the south-western boundary of the property, looking towards
the
property and across the prohibited area, and depict a boundary wall
in the course of construction, consisting of reinforced
concrete
columns and plaster bricks, a completed retaining wall, which had
been constructed some distance into the property on
the far side of
the prohibited area, and a line of reinforced concrete columns
constructed between these two walls, in essence
running along the
centreline of the prohibited area parallel to the retaining and
boundary walls. An affidavit of a professional
land surveyor was also
put up by the Applicant in support of its case in the main
application. That affidavit contained a schedule
of photographs taken
by the said surveyor upon his inspection of the property on the 16
th
of February 2015. This schedule depicts the boundary wall as having
been constructed, although not plastered, and clearly depicts
the
line of columns that had been constructed within the prohibited area.
Of relevance is that they clearly depict the state of
the building
works that had taken place on the Respondent’s property as at
the 16
th
of February 2015 as consisting of a retaining wall, an incomplete
boundary wall and a series of concrete columns. It was on this
evidence that the Respondent consented to the order being granted on
the 26
th
of February 2015.
[9]
It is now contended by the Applicant that
the Respondent has acted in contempt of that order and has continued
with building works
within the prohibited area.
[10]
This application is opposed by the
Respondent. The Respondent has raised an initial point
in
limine
, challenging the authority of
the deponent to the founding affidavit filed in these proceedings. As
to the merits of the application,
the Respondent admits the grant of
the order forming the subject hereof, that such order was granted by
consent and that he is,
and was at all material times, aware of the
provisions thereof. The Respondent however contends that the
Respondent has not established,
on the papers before me, that any
building work has taken place after the grant of the order on the
26
th
of February 2015 and, in any event, any non-compliance by him with
the provisions of the order was not wilful and
mala
fide
.
[11]
Insofar as the Respondent’s point
in
limine
is concerned, it is stated in
his answering affidavit that he disputes that the deponent to the
founding affidavit is duly authorised
to depose thereto, he disputes
that the Applicant has authorised this application to be made without
the input of all its relevant
departments, he disputes that the
Applicant has approved of the deponent initiating this litigation on
its behalf and in its name
and he accordingly denies that the
deponent was authorised by the Applicant to institute this
application. In support of the aforegoing
contentions the Respondent
goes no further than to state that the Applicant is a “local
government” as contemplated
in the Constitution of the Republic
of South Africa, 1996, that he is “led to believe” that
the deponent is not the
Head of Department of the Applicant’s
Southern Region and that the deponent is accordingly subordinate to
that Head of Department.
In response to the deponent’s
allegation in the founding affidavit that he is the Principal
Building Inspector of the Applicant’s
Southern Region, the
Respondent merely states that he is aware of the identity of the
deponent, but does “not know for a
fact that he is the
‘principal building inspector’”. He then goes
further to submit that if the Applicant sought
to institute these
proceedings, the Head of Department of the Southern Region would have
deposed to the founding affidavit. In
response to these allegations,
the Applicant has filed an affidavit by the Regional Co-ordinator:
Building Inspectorate Branch
of its Southern Region, who has
confirmed that the deponent to the founding affidavit was in fact
authorised by the Applicant to
depose thereto and to any further
affidavits put up by him in this application.
[12]
It
has been held by the Supreme Court of Appeal in the case of
Gains
and Another v Telkom Namibia Ltd
[4]
that the deponent to an
affidavit of motion proceedings need not be authorised by the party
concerned to depose to the affidavit.
It is the institution of the
proceedings and the prosecution thereof which must be authorised. The
deponent to the affidavit is
merely a witness in the proceedings. It
is the attorney of the litigant who, by signing the notice of motion
and issuing the application
papers, who signifies that he or she has
been authorised to institute the application on behalf of the
litigant. The provisions
of Rule 7 (1) of the Uniform Rules of Court
provide a procedure in instances where the authority of the person
instituting the
proceedings is being challenged. The issue has been
fully canvassed in the case of
ANC
Umvoti Council Caucus and Others v Umvoti Municipality
[5]
where Gorven J concluded
that:
[6]
“
The
position is now that, absent a specific challenge by way of rule 7
(1), the mere signature of the notice of motion by an attorney
and
the fact that the proceedings purport to be brought in the name of
the Applicant’ is sufficient. It is further my view
that the
application papers are not the correct context in which to determine
whether an Applicant which is an artificial person
has authorised the
institution of the application proceedings. Rule 7 (1) must be used.”
It
is common cause that the Respondent has not made any challenge to the
authority of the Applicant’s attorney of record in
terms of the
provisions of Rule 7 (1) of the Uniform Rules of Court. I am
therefore of the view that the Respondent’s challenge
to the
authority of the deponent to the founding affidavit in these
proceedings is without merit.
[13]
Turning
now to the merits of the application itself. The position, insofar as
contempt of court proceedings are concerned, has been
summarised in
the case of
Fakie
NO v CCII Systems (Pty) Ltd
[7]
as follows:
“
(a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.
(b)
The respondent in such proceedings is not an 'accused person', but is
entitled to analogous protections as are appropriate to
motion
proceedings.
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and wilfulness
and
mala fides) beyond reasonable doubt.
(d)
But, once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden
in relation
to wilfulness and mala fides: Should the respondent fail to advance
evidence that establishes a reasonable doubt as
to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.
(d)
A declarator and other appropriate remedies remain available to a
civil applicant on proof on a balance of probabilities.”
Once
the Applicant has proved the grant of the order, the service thereof
on the Respondent or that it has come to the Respondents
notice, the
Respondent’s non-compliance with the provisions of that order
and wilfulness and
mala fides
on the Respondent’s part, an evidentiary burden then rests upon
the Respondent to advance evidence that establishes a reasonable
doubt as to whether non-compliance with the order was wilful and
mala
fides
. Should the Respondent fail to
advance such evidence, contempt will have been established beyond
reasonable doubt.
[14]
The grant of the order on the 26
th
of February 2015 and that he had notice thereof is admitted by the
Respondent. What needs to be analysed therefore is whether the
Applicant has proved, on the papers before me, that the Respondent
has not complied with the order by continuing with building
works
subsequent to the grant thereof and that he acted wilfully and
mala
fide
in doing so.
[15]
If
one has reference to the terms of the order itself,
[8]
the Respondent is interdicted and restrained from undertaking any
building construction work upon the property “save for
such
building construction work as is foreshadowed by the plan” that
was submitted and approved by the Applicant in the application
made
pursuant to the provisions of section 4 of the National Building
Regulations and Building Standards Act.
[9]
As far as the determination of this application is concerned
therefore, one has to have reference to what is in fact depicted on
the plan in order to determine what could be construed as “approved
building construction work” and to compare such
with what has
been established by the Applicant as having actually been built. The
fact that construction may have taken place
over the 7.5 m building
line, and in contravention of the Applicant’s South Town
Planning Scheme, is irrelevant for the present
purposes. The
Respondent has been prohibited from undertaking any construction work
which is contrary to the approved plan. No
prohibition is imposed in
the order regarding any construction work taking place over the
building line.
[16]
Should such comparison reveal that the
Applicant has established on the papers that construction work has
been undertaken on the
property that was not “foreshadowed by
the plan”, one then has to take the enquiry further and
determine whether the
Applicant has established that such
construction work took place after the grant of the order on the 26
th
of February 2015.
[17]
Insofar
as the actual construction work that has taken place is concerned,
the Applicant has put up a series of photographs in support
of its
case. The first of which is a schedule of two photographs that were
taken by its enforcement officer on the 5
th
of March 2015.
[10]
The
Respondent does not dispute that such photographs were taken, but
merely contends that he was not aware of the enforcement
officer
attending upon the property on the date in question. If one has
reference to the photo schedule it depicts the prohibited
area, taken
from an advantage point upon the property, looking out across the
south-western boundary onto [W……] [C……]
Road. What is evident from the photographs is that construction is
taking place within the prohibited area and construction workers
appear to be in the process of plastering the inner surface of the
boundary wall. The second schedule of photographs,
[11]
were allegedly taken by the Applicant’s officials on the 16
th
of March 2015. The Respondent admits the photographs, but disputes
what transpired whilst they were being taken. It is evident
from the
said photographs that a roof structure was now being constructed over
the prohibited area between the boundary wall and
the retaining wall.
It is also evident that the roof structure was being supported by the
reinforced concrete columns that had
been constructed along the
centreline of the prohibited area. A further schedule of
photographs,
[12]
taken on the
17
th
of March 2015, depict the interior of the structure that had been
constructed over the prohibited area. One can clearly see that
a
corrugated metal roof has been constructed over the prohibited area,
which is supported on either side by the retaining wall
and the
boundary wall, respectively, and in the centre by the reinforced
concrete columns. It is also evident that a concrete floor
has been
laid over the entire prohibited area. Again the Respondent does not
dispute these photographs. He merely notes that they
have been taken
and contends that he can explain why he proceeded with the building
work. The Applicant put up a final schedule
of photographs,
[13]
albeit in its replying affidavit, allegedly taken on the 6
th
of May 2015, which depict the building constructed over the
prohibited area in its final form. The building appears to be some
form of commercial building, in the form of a warehouse, which spans
the entire prohibited area.
[18]
Ignoring
the final photographs that were taken on the 6
th
of May 2015, one is able to determine from the photographs put up in
the founding affidavit that a building consisting of a large
open
interior area has been constructed over the prohibited area. This
building is rectangular in shape, appears to be one and
a half to two
stories high and has two entrances, in the form of double garage
doors, allowing access from [W…..] [C….]
Road. Although
the construction of a 2m high boundary wall as reflected on the
approved plan, the wall constructed along the boundary,
as depicted
in the photographs referred to above, is not a boundary wall but is
the front wall of the building which supports the
roof structure and
appears to be well in excess of 2m high. The building constructed on
the prohibited area accordingly bears no
resemblance whatsoever to
the proposed dwelling depicted on the approved plan. If one however
has reference to the main application,
a report compiled by the
architect engaged by the Respondent in support of his special consent
application pursuant the provisions
of section 67
bis
of the Town Planning Ordnance is put up as an annexure thereto.
[14]
It is evident from a perusal thereof that the structure constructed
upon the prohibited area conforms with the plan accompanying
that
report. The structure on that plan is described as a proposed private
boat and vehicle garage, private workshop and private
games
room/recreational area. I am accordingly satisfied that the Applicant
has established, by way of the undisputed pictorial
evidence put up
in its founding affidavit, that a structure has been constructed on
the property which does not conform in any
respects with the approved
plan referred to in the order granted on the 26
th
of February 2015. I am satisfied therefore that the building work
undertaken in constructing the structure that is presently situated
on the property is not “foreshadowed by the plan”
referred to in the order.
[19]
This
being the case, I need now to consider whether the Applicant has
established that such building work has been undertaken by
the
Respondent subsequent to the grant of the order on the 26
th
of February 2015. In its founding affidavit, the Applicant contends
that, at the time of the grant of the order, the Respondent
had
proceeded with construction to a point where foundations have been
laid, certain vertical pillars were constructed and certain
walls
were constructed between such pillars. The Respondent admits such
allegation, but contends that the Applicant is not clear
about what
precisely had been built on the property and submits that most of the
construction work had been completed.
[15]
As already referred to herein, the Respondent does not dispute
the photographs that were taken on the 5
th
of March 2015,
[16]
which
depict the state of the building works that had been completed at
that date as being confined to the construction of the
retaining wall
and the boundary wall, with the latter still being plastered. No roof
structure is evident. The Applicant goes further
in its founding
affidavit to contend that the building work, as depicted in the
aforesaid photographs, confirmed that the Respondent
was in contempt
of the order and was engaging in building work within the prohibited
area. In answer to this allegation the Respondent
admits that he
carried on the building work, but denies that he acted in contempt of
the order.
[17]
As already
referred to, the Respondent admits the photograph that was taken on
the 16
th
of March 2015.
[18]
This
photograph clearly depicts that the building works had progressed to
a stage where a roof was now being erected upon the structure.
In
support of the photographs taken on the 17
th
of March 2015,
[19]
the
Applicant contended that the state of construction had reached a
stage where the floor had been completed, the plastering of
the
interior walls had been completed and that a roof had been
constructed over the structure. In response to these allegations,
the
Respondent merely notes them and states that he has explained why he
proceeded with the building work. There is no denial that
such
building work had taken place during the period contended for by the
Applicant.
[20]
Again on the pictorial evidence put up by
the Applicant in its founding affidavit, and the admissions made by
the Respondent in
response thereto, it is clearly evident that the
Respondent has proceeded with the construction of a building on the
prohibited
area from a state where it consisted of the outer boundary
wall, still in a state of construction as at the 5
th
of March 2015, to a state where a structure, inclusive of a roof, a
concrete floor and doors, had been completed by the 17
th
of March 2015. I am therefore satisfied that the structure that
presently stands on the prohibited area, save for the rear retaining
wall, the concrete pillars running along its centreline and a portion
of the outer boundary wall, were constructed after the grant
of the
order on the 26
th
of February 2015. I am therefore satisfied that the Applicant has
proved that such structure was constructed by the Respondent
in
contravention of the provisions of that order.
[21]
With
regard to whether the Respondent acted wilfully or
mala
fide
in continuing with the construction as aforesaid, it is alleged by
the Applicant that the Respondent had been served with various
notices alluding to the fact that construction had commenced on the
property unlawfully and that such construction was unlawfully
continuing up to the build-up of this application. In this regard I
was referred to various annexures forming part of the main
application. It is admitted by the Respondent in the main application
that a notice was personally served upon him by an official
of the
Applicant on the 6
th
of November 2013 in which he was advised, inter-alia, of the
provisions of Regulation A25 (5) of the Regulations promulgated
pursuant
to the National Building Regulations and Building Standards
Act and was further advised that “
any
person who, having obtained approval in terms of the Act for the
erection of any building, deviates to any material degree from
any
plan, drawing or particulars approved by the local authority shall,
except where such deviation has been approved, be guilty
of an
offence
”.
[20]
It is also alleged by the Applicant in those proceedings that a
further notice was served on the Respondent on the 29
th
of April 2014 wherein he was advised of the provisions of section 4
(1) of the National Building Regulations and Building Standards
Act,
and was, in particular, advised that “
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
”.
[21]
The Respondent does not deny such allegation, but merely notes same.
The Respondent admits service of a similar notice upon him
on the 2
nd
of February 2015.
[22]
Again
the provisions of section 4 (1) of the National Building Regulations
and Building Standards Act were brought to his attention
and he was
also directed therein to “
cease
all work forthwith
”.
It is also admitted by the Respondent that a written notice, in terms
of
section 56
of the
Criminal Procedure Act, No. 51 of 1977
, was
served on him on the 3
rd
of February 2015 where he was charged with unlawfully contravening
section 4
(1), read with section 4 (4), of the National Building
Regulations and Building Standards Act with regard to the
construction that
was taking place on the property.
[23]
It is also admitted by the Respondent that he addressed an email to
the Applicant on the 4
th
of February 2015 wherein he acknowledged receipt of the summons as
aforesaid, contended that he had an approved plan, with reference
to
the plan forming the subject of this application, admitted that he
had deviated therefrom, contended that he had submitted a
“
deviation
plan
”
to the Applicant, but that such “
did
not pass
”.
[24]
[22]
If
one has reference to the application papers in this application, it
is contended by the Respondent in his answering affidavit
that he
believed he was entitled to continue with the construction of the
building presently situated on the prohibited area as
he had launched
a fresh application for special consent pursuant the provisions of
section 67
bis
of the Town Planning Ordnance. He goes further to state that he was
informed that the risk of economic loss in the event of the
special
consent application failing would be his and that he was prepared to
take such risk. He further states that he was mistaken
about the
implication of the order and that he believed that the order was not
effective until the Applicant had succeeded in securing
confirmation
thereof. This is despite acknowledgement of receipt of the
Applicant’s attorney of record’s letter addressed
on the
5
th
of March 2015, at the stage when the pictorial evidence demonstrated
that the building works had only progressed to the stage where
the
inner surface of the boundary wall was being plastered, wherein he
was advised that he was acting contrary to the provisions
of the
order in continuing with the building works and that “
should
building activity continue on the 6
th
of March 2015, we shall immediately approach the court for a contempt
of court order
”.
[25]
[23]
I
accept that the Respondent’s version must be carefully
scrutinised and I am also mindful that “
a
respondent’s version can be rejected in motion proceedings only
if it is “fictitious” or so far-fetched and
clearly
untenable that it can confidently be said, on the papers alone, that
it is demonstrably and clearly unworthy of credence
”.
[26]
If one has reference to the admitted or undisputed facts before me,
the Respondent was aware, as at the 5
th
of March 2015, of the provisions of section 4 (1) and (4) of the
National Building Regulations and Building Standards Act, as well
as
the provisions of regulation A25 (5) of the Regulations promulgated
pursuant thereto and must accordingly have been aware that
he was not
entitled to erect a structure without an approved plan in respect
thereof. He was also aware of the provisions of the
order granted on
the 26
th
of February 2015 and had received notice that should he continue with
his building operations on the prohibited area after the
6
th
of March 2015, an application would be instituted by the Applicant
seeking to declare him in contempt of such order. It must also
not be
forgotten that the Respondent was represented by his attorney of
record during all relevant times to these proceedings.
I am therefore
of the view that his assertion that he was labouring under a
misapprehension that he was entitled to proceed with
the building
works after the 5
th
of March 2015 is “
clearly
unworthy of credence
”
and ought to be rejected.
[24]
Apart from the aforesaid assertion, the
Respondent has laid no further facts before me that would give me
further insight into his
state of mind during the time the
construction was taking place between the 5
th
of March 2015 and the institution of these proceedings on the 20
th
of March 2015. The Respondent has accordingly failed to advance any
evidence that would establish a reasonable doubt as to whether
his
non-compliance with the order dated the 26
th
of February 2015 was wilful and
mala
fides
. The only conclusion I can draw
is that the Respondent continued with the construction of the
structure presently standing on the
prohibited area with full
knowledge that he was doing so in contravention of the provisions of
the National Building Regulations
and Building Standards Act and in
direct contravention of the provisions of the order granted by this
court on the 26
th
of February 2015 directing him not to do so pending the return date
of the
rule nisi
issued on that date. I am therefore satisfied that the Respondent is
in contempt of such order.
[25]
In argument before me, the Applicant’s
counsel advised me that the Applicant would seek an order in terms of
the alternative
relief sought in the notice of motion. The
alternative relief sought is that the Respondent be found in contempt
of the order granted
on the 26
th
of February 2015, that he be committed to prison for a period of 30
days, or such alternative period as I may deem appropriate,
and that
such committal be suspended for a period of two years on condition
that the Respondent complies with the provisions of
the order and
further demolishes all building construction work undertaken by him
contrary to the terms of the order within 14
days of the grant
thereof. The Applicant further seeks leave to approach this court, on
these papers supplemented insofar as may
be necessary, for an order
committing the Respondent to prison in the event of him failing to
comply with the provisions as aforesaid.
[26]
It
is well accepted that the object of contempt proceedings is not only
to obtain the imposition of a penalty in order to vindicate
the
court’s honour consequent upon the disregard of its order but
also to compel performance in accordance therewith.
When
the object is primarily to compel performance of a court's order, the
period of imprisonment imposed as a punishment is often
suspended
pending fulfilment by the defaulter of his or her obligations.
[27]
I am mindful of what was stated with regard to a city council’s
obligations to enforce the law in the face of ongoing illegality
being perpetrated by an individual in the case of United Technical
Equipment Company (Pty) Ltd v Johannesburg City Council, where
it was
stated that:
[28]
“
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 legalised in due course
and that pending finalisation the illegal
use will be protected
indirectly by the suspension of an interdict.”
A
situation akin to the aforegoing is present in this instance. The
Applicant was duty-bound to approach this court in the main
application to seek an interdict to prevent the Respondent from
continuing with the illegal construction of the structure on the
prohibited area of the property. The unauthorised and illegal conduct
of the Respondent cannot be condoned by this court. I am
of the view
that a lenient approach in the present instance would also lead to an
open invitation to members of the public to follow
the course adopted
by the Respondent and to continue with the construction of buildings
and structures in circumstances where the
authority therefor has not
been obtained from the relevant municipality pursuant to the
provisions of section 4 of the National
Building Regulations and
Building Standards Act.
[27]
The approach adopted by the Applicant, in
seeking the alternative relief, would not only serve the purpose of
vindicating this court’s
honour consequent upon the disregard
of the order granted on the 26
th
of February 2015, but will also serve the purpose of encouraging the
Respondent to comply with the provisions thereof and provide
him with
an opportunity of “righting his wrongs” prior to any
punishment being imposed upon him. I am therefore of
the view that
such relief is appropriate in the present circumstances.
[28]
The
only concern I have is the time afforded to the Respondent to comply
with the direction to demolish the building works that
were
undertaken upon the property that were not foreshadowed by the
approved plan. I am of the view that a period of 14 days affords
the
Respondent insufficient time to undertake such demolition and that a
period of 30 days would be appropriate in the circumstances.
I must
also state that the order of demolition granted herein is confined
solely to those portions of the structure that are not
foreshadowed
by the approved plan that were constructed after the issue of the
order on the 26
th
of February 2015. As already stated herein, one can take as a
benchmark the photo schedule taken by the Applicant on the 5
th
of March 2015 as being the state of construction of the structure as
at that date.
[29]
The order I
make hereafter only refers to those portions of the structure
presently constructed on the prohibited area of the property
which do
not conform with the approved plan and which were constructed in
addition to what is depicted in the said photo schedule.
[29]
I accordingly make the following order:
(a)
the Respondent is found in contempt of the
order granted by this court on the 26
th
of February 2015;
(b)
the Respondent is committed to prison for a
period of thirty (30) days;
(c)
such committal is suspended for a period of
two (2) years on condition that the Respondent:
(i)
complies with the terms of the order
granted on the 26
th
of February 2015;
(ii)
demolishes all building construction work
undertaken by him, or on his behalf, which is contrary to the terms
of the said order
within a period of thirty (30) days of the date
hereof;
(d)
the Applicant is given leave, in the event
of the Respondent failing to comply with the provisions of
subparagraph (c) hereof, and
on the same papers supplemented as
necessary, to apply for an order for the Respondent’s committal
to prison; and
(e)
the Respondent is directed to pay the costs
of this application on the attorney and client scale.
I
L TOPPING AJ
LAST
APPEARANCE:
Counsel
for the Applicant: Gajoo SC,
Instructed
by Livingstone Leandy Incorporated, Durban.
Counsel
for the Respondent: Windfred,
Instructed
by Attorneys J Surju, Durban.
Date
of Hearing: 25 June 2015.
Date
of Judgment: 11 September 2015.
[1]
Annexure
"B" to the founding affidavit.
[2]
Paragraph
58 of the founding affidavit.
[3]
Paragraph
75 of the founding affidavit and annexures "W" and "X".
[4]
2004
(3) SA 615
(SCA) at paragraph 19.
[5]
2010
(3) SA 31
(KZN) at paragraphs 8 - 28
[6]
At
paragraph 28
[7]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at paragraph 42.
[8]
Paragraph
1.1 of the order.
[9]
Namely
the plan forming annexure "A" to the founding affidavit.
[10]
Annexure
"D" to the founding affidavit.
[11]
Annexures
"H" and "I" to the founding affidavit.
[12]
Annexure
"K" to the founding affidavit.
[13]
Annexure
"L" to the replying affidavit.
[14]
Annexure
"CC" to the replying affidavit in the main application.
[15]
Paragraph
20 of the founding affidavit read with paragraph 26 of the answering
affidavit.
[16]
Annexure
"D" to the founding affidavit.
[17]
Paragraph
34 of the founding affidavit read with paragraph 35 of the answering
affidavit.
[18]
Annexure
"I" to the founding affidavit.
[19]
Annexure
"K" to the founding affidavit.
[20]
Annexure
"F" to the main application, read with paragraphs 19-20 of
the founding affidavit and paragraph 68 of the answering
affidavit.
[21]
Annexure
"I" to the main application, read with paragraph 23 of the
founding affidavit and paragraph 71 of the answering
affidavit.
[22]
Annexure
"T" in the main application, read with paragraph 67 of the
founding affidavit and paragraph 99 of the answering
affidavit.
[23]
Annexure
"U" to the main application, read with paragraph 70 of the
founding affidavit and paragraph 102 of the answering
affidavit.
[24]
Annexure
"V" to the main application, read with paragraph 72 of the
founding affidavit and paragraph 105 of the answering
affidavit.
[25]
Annexure
"E", read with paragraph 31 of the founding affidavit and
paragraph 31 of the answering affidavit.
[26]
Fakie
NO v CCII Systems (Pty) Ltd
2006 (4) SA 362
(SCA) at paragraph 56.
[27]
See:
East London Local Transitional Council v MEC for Health, Eastern
Cape
2001 (3) SA 1133
(Ck) at paragraph 28: Laubscher v Laubscher
2004 (4) SA (350 (T) at paragraph 8.
[28]
1987
(4) SA 434
(T) at 348I-J: Which was cited with approval in
Lester
v Ndlambe Municipality (unreported, referred to as
[2013] ZASCA 95
,
22 August 2013).
[29]
Annexure
"D1 and 2" to the founding affidavit.