About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 133
|
|
Pellencin v City of Tshwane Metropolitan Municipality (47233/11) [2012] ZAGPPHC 133 (28 June 2012)
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 NORTH GAUTENG HIGH COURT. PRETORIA (REPUBLIC OF SOUTH AFRICA)
NOT
REPORTABLE
CASE
NO. 47233/11
DATE:28/06/2012
In
the matter between
PELLENCIN,
S
W
..................................................................................
APPLICANT
and
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
.....................
RESPONDENT
JUDGMENT
LI
VORSTER AJ:
[1]
The applicant applies for an order compelling the respondent to issue
an occupation certificate in respect of …... Street,
Wonderboom, Pretoria and also costs of suit against the respondent.
The dispute between the parties is purely a dispute of law.
The
relevant facts in this matter are not in dispute, and may be
summarized as follows:
1.1
The applicant successfully applied to the respondent, being the
relevant local authority, for the approval of building plans
in
respect of a dwelling to be erected on the property of the applicant.
1.2
The aforesaid building plans were approved by the respondent.
1.3
In the course of the construction of the dwelling, certain deviations
from the approved building plans were done in the construction
process. This compelled the applicant to apply for the approval of
amended building plans which reflected the construction of the
building works "as built". The respondent refused to
approve of the building plans as built. When requested for reasons
for its refusal, the respondent by a letter dated 23rd of March 2010,
informed the applicant that the grounds for its refusal were
as
follows:
"The
building to which the application in question relates will be of such
nature or appearance that -
(1)
It will probably or in fact detrimentally affect the privacy of the
adjoining property owners;
(2)
The area in which it is to be erected will probably or in fact be
disfigured thereby;
(3)
It will probably or in fact derogate from the value of adjoining or
neighbouring properties."
1.4
The applicant appealed against the refusal of the respondent to a
review board in terms of section 9 of the National Building
Regulations and Building Standards Act, No 103 of 1977 ("the
Act'). The review board upheld the appeal of the applicant.
1.5
The applicant thereafter applied for an occupation certificate in
respect of the dwelling in terms of section 14 of the Act.
That
application was refused. Consequently the applicant applies for the
relief claimed in the notice of motion.
[2]
The relief claimed by the applicant is a mandamus. It asks the Court
to make an order compelling the respondent to do what in
law it is
obliged to do, but refuses to do. It is clear that the entitlement of
the applicant to claim the aforesaid relief is
based fundamentally on
the legal interpretation of the effect of the upholding of the appeal
of the applicant to the review tribunal.
Secondly, the question is
whether the upholding of the appeal of necessity entitles the
applicant to an occupation certificate
in respect of the dwelling and
whether any residual discretion to refuse that occupation certificate
vests in the respondent in
terms of section 14 of the Act. I shall
deal with those questions below.
[3]
THE LEGAL EFFECT OF UPHOLDING THE APPEAL:
The
appeal to the review board is what is commonly called an
administrative appeal. It is an appeal in the wide sense which
entails
a complete rehearing of the merits of the case and a fresh
determination thereof on such evidence or information put to the
appeal
tribunal. Vide: Tikly & others v Johannes NO & others
1963(2) SA 588 (T) at 590 - 591. The written decision of the review
board attached as annexure "SP05" to the founding affidavit
is instructive in this regard as it is clear that the issues
were
determined by the review board on the basis of the hearing of
evidence and determining the issues between the parties de novo
in
coming to its decision to uphold the appeal. In terms of section 9 of
the Act, the time period within and the manner in which
an appeal can
be made to the review board is as prescribed by regulation. Section
20 of the Act provides in section 20(1 )(a) and
(b) for the provision
of regulations regarding the procedure to be followed at the hearing
of an appeal as well as the powers,
duties and functions of the
review board, including the power to summon witnesses for the
purposes of hearing of the appeal. That
is a clear indication that
the nature of the proceedings before the review board is a rehearing
de novo on the merits of the case.
[4]
The concept of appeal of necessity implies a power on the part of the
appeal body to correct or replace a decision of the body
which
decision is taken on appeal. But for that implication, the concept of
appeal would make no sense and be irrelevant. The implied
power to
set-aside, correct and replace an incorrect decision by a body of
appeal can of course be curtailed or specifically formulated
by
enabling legislation. In the instant case there is no evidence or
material before me to indicate that any such limiting provisions
were
applicable in the instant case. Consequently I accept that the review
board was competent to set-aside the decision of the
respondent and
to replace it with its own decision. The review board clearly
rejected the refusal of the respondent to approve
of the building
plans as built. It upheld the appeal, but did not expressly state
what the effect of upholding the appeal would
be. It is however clear
that the reasons advanced by the respondent as grounds for refusal to
approve of the building plans were
found by the review board to be
without substance and rejected. Having rejected those reasons, it
follows that upholding the appeal
is in substance the approval of the
building plans as built. The fact that the review board did not
explicitly say so is not in
my view of any consequence. The reasons
for refusing to approve of the building plans were rejected by the
review board and in
the absence of any other reasons, it follows that
the respondent could not lawfully refuse to approve of the said
building plans.
[5]
RESIDUAL DISCRETION TO REFUSE OCCUPATION CERTICATE:
Section
14(1) of the Act provides as follows:
"(1)
A local authority shall within 14 days after the owner of a building
of which the erection has been completed, or any
person having an
interest therein, has requested it in writing to issue a certificate
of
occupancy in respect of such building -
(a)
issue such certificate of occupancy if it is in the opinion that such
building has been erected in accordance with the provisions
of this
Act and the conditions on which approval was granted in terms of
section 7 and if certificates issued in terms of the provisions
of
subsection (2A), in respect of such building have been submitted to
it.
(b)
in writing notify its owner or person that it refuses to issue such
certificate of occupancy if it is not satisfied or if a
certificate
has not been so issued and submitted to it"
[6]
Section 7(1 )(a) of the Act provides as follows:
"(1)
If a local authority, having considered a recommendation referred to
in section 6(1) (a) -
(a)
is satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall
grant
its approval in respect thereof"
Clearly,
a building plan can only be approved by a local authority if that
building plan complies with the requirements of the Act
and any other
applicable law.
The
grounds that were raised by the respondent for the refusal of the
approval of the building plan are the grounds mentioned in
section
7(b)(ii)(aaa), (bbb) and (ccc). There never was any objection by the
respondent that the building plans did not comply
with the
requirements of the Act or any applicable law. The rejection by the
review board of the reliance of the respondent on
the provisions of
section 7(b)(ii) leaves no other alternative than the conclusion that
the building plans as built complies with
the provisions of the Act
and any other applicable law. That being so, the inevitable
conclusion must be that there is no ground
for the respondent to
refuse the occupancy certificate applied for by the applicant.
Clearly the issuing of an occupancy certificate
relate to matters of
safety of inhabitation of a particular building. If that building has
been constructed in accordance with
approved building plans, there
can be no residual authority to refuse an occupancy certificate
unless the building or structure
deviates from the approved building
plans in some respect which renders it unsafe for occupation. That is
clearly not the situation
in the instant case.
[7]
The respondent argued that it is not competent for this Court to
issue a mandamus against the respondent. That submission is
based on
the assumption that the nature of the proceedings before the review
tribunal is a review and not an appeal. The argument
is that Courts
do not normally issue a mandamus in cases of review, but rather refer
the matter back to the body in question for
reconsideration and
coming to a proper decision. That is correct in cases of review. The
fact is that the proceedings before the
review tribunal was not a
review but an appeal. That appeal is an appeal in the wide sense of
the word where the review tribunal
is empowered and indeed, obliged
to reconsider the matter on the basis of the totality of the evidence
before it and come to its
own decision. That is what happened in the
instant case. It also follows that the provisions of the Promotion of
Administrative
Justice Act (PAJA) are completely irrelevant to this
case. Those provisions can only find application in the case of a
review of
the decision of the review board. That has not taken place.
The question whether this Court should issue a mandamus against the
respondent is entirely dependant upon the question whether a legal
obligation rested with the respondent to issue the occupancy
certificate which it had refused to do. I am of the view that such
legal obligation existed for the reasons that I have already
dealt
with above.
[8]
What remains is the issue of costs. The applicant asks for an order
of attorney and client costs to be awarded against the respondent.
The difficult question which I must decide is whether the respondent
was willfully obstructive of issuing an occupancy certificate
which
it was in law obliged to do or whether it actually believed that it
was the lawful course of procedure to adopt. Although
there certainly
is room for the argument that the Respondent was willfully
obstructive, I think the benefit of the doubt whether
it actually
believed its unlawful refusal to issue the occupancy certificate to
be lawful operates against the imposition of a
punitive cost order
against the respondent.
[9]
In the result I make the following order:
1.
The Respondent is ordered to issue an occupation certificate in
respect of the dwelling situated at ….... Street, Wonderboom
South, Pretoria to the applicant.
2.
The Respondent pays the Applicant's costs of suit.
L
I VORSTER WR