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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2024/070674
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
(4) Signature:________________
Date: 26/02/25
In the matter between:
CITY OF T HSWANE METROPOLITAN MUNICIPALITY Applicant
and
GEORGE ASABA First Respondent
GABSA CONSOLIDATED PROP (PTY) LTD Second Respondent
JUDGMENT
Kumalo J
INTRODUCTION
[1]. On 16 July 20 24, an interim order was issued by this court directing the First
and Second Respondents to submit building plans in respect of the
construction of buildings on Remainder ERF 1[...]- on 5[...] L[...] Street and
Remainder 1[...] on 5[...] L[...] Street, Pretoria West , Pretoria for approval by
the Applicant within 5 days of the order.
[2]. Further, the order authorised the Applicant that should the Respondents fail
to submit the building plans, the Applicant is authorised to demolish the
building structure s and that the cost of the demoli tion be borne by the
Respondents.
[3]. Further, pending the outcome of the of the proceedings referred to above ,
relating to the approval of the building plans referred to , the Respondents
were interdicted from proceeding with the construction of any building
structure s on the Remainder of the ERFs referred to in paragraph 1 supra .
[4]. The return date was 9 September 2024. On said date, the rule nisi was
extended and the matter set down on the opposed motion court of 17
February 2025. The matter was heard on 19 February 2025.
[5]. Counsel for the Respondent argued before t his Court that the order of 16
July 2024 was obtained on false information and would not have been
granted had the court been aware of the true status of the situation.
[6]. He argued that it was incorrect that the Respondents had not submitted
plans. Plans were submitted and there was no construction on ERF 1[...]. He
admitted that there w ere construction works on ERF 1[...] but such
construction seized after the court order interdicting his client or an y other
person from continuing with such constr uction.
[7]. To further compound the problem, counsel for the Respondent advised this
court that soon thereafter, the buildings were invaded by illegal occupiers
who currently are still in o ccupation of the said buildings and invited the court
to do an inspection in loco if it so desired.
[8]. I accepted the invitation and the inspection in loco was undertaken to the
premises. The court was accompanied by members of the Tshwane
Metro politan Police Department to whom I am grateful.
[9]. Upon arrival at the premises, it was noted that entrances the reto w ere
heavily secured. We could not enter the premises on the main gate situate
on ERF 1[...] and had to use a side gate situated on the 1[...] premises.
[10]. It was noted that there was a single -story building on ERF 1[...] and a multi -
story building with four floors . This was contrary to counsel’s assertion that
there was no construction on 1[...] but only the single -story building.
[11]. The court took a tour of the four-story building and noted that there were
people occupying the building. The inside staircases were a hazard with no
guide rails. There were visible electric wires everywhere and leaks of water.
[12]. It was further noted that curtains in several apartments where the same and
when one pipped in, it appeared that they were not occupied. Those that
were occupied and when I asked the people when they moved in, most
indicated that they moved in around September , October of last year. Some
indicated that they moved in around December 2024.
[13]. All the people that we spoke to indicated that they were renting and paying
an amount of two thousand rands to the caretaker who se name is Alfred.
Unfortunately, we did not meet Alfred.
[14]. The Court then moved over to the buildings located on ERF 1[...] which had
four building apartments like the one on ERF 1[...]. Two of these buildings
were four -story buildings and the other two were three -story buildings. We
however could not access the three -story buildings.
[15]. What was found in the two other buildings that we managed to get access to
was like what was found in the other building situated on ERF 1[...]. Again,
the people we managed to speak to in these buildings confirmed that they
were renting and paying an amount of R2000. 00 per month.
[16]. I need to mention that on the way out, we met some lady carrying a baby.
When asked how long has been living there, she told us that she was living
with her aunt and she moved in when she was four months pregna nt. The
child she was carrying would not have been more than two months old.
[17]. I am mentioning the above because Mr. Mhlanga made much of an
argument on this issue to bolster the submission that the city cannot
demolish these structures as they are currently inhabited, and it would
require the process of eviction in terms of section 4 of the Pr evention of
Illegal Evictions Act …. to be followed. I do not agree with his arguments in
this regard and my reasons will follow herein later.
[18]. This court was presented with a n album of p hotos taken by the Applicant’s
building inspectors on various dates before and after it had obtained the
interim interdict to prevent the Respondent from continuing with the
construction on these sites/erfs.
[19]. Of particular concern to this court is that there are pho tos taken on 28
August 2024 that indicate that the Respondents continued with construction
works after they were interdicted from doing so. These include photos of
construction workers working normally and constructions tools lying around.
This was in fla grant disregard of the order of this court.
[20]. For example, there are photographs depicting foundations being laid . One
can see from these photos wheelbarrows , concrete wires etc. During our
inspection of the premises, the buildings had been completed which clearly
demonstrates that the Respondents went ahead with their construction
project even though they had not submitted any plans for approval .
[21]. The Respondents have instead, applied for rezoning. This is not how the law
works. One does not build and subsequently apply for rezoning as if it is an
afterthought.
The applicable statutory provisions
[22]. Section 4(1) of the National Building Regulations and Building S tandards Act
provides 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”.
[23]. Clearly the Building Act prohibits the erection of buildings without the
submission of building plans and/or their approval by the City responsible.
[24]. Further, Section 4(4) of the Building Act makes it a cri minal offence for
any p erson who erects any building in contravention of the provisions of
subsection (1) and such person may be liable on conviction to a fine.
[25]. Section 21 of the Act grants the Applicant the necessary locus standi to seek
an order prohibiting the Respondents from commencing or proceeding with
the erection of any building or authorising the Applicant to demolish such
building if the court is satisfied that such erection is contrary to and does not
comply with the provisions of the Building Act.
[26]. In casu, on 16 July 2024, the Court ordered the Respondents to submit for
approval the plans for the structures that it had put up on ERFs 1[...] and
1[...].
[27]. Respondents on their answering affidavit filed on 5 September 2024 alleges
that they submitted plans in respect of ERF 1[...] on 3 June 2024 and paid an
amount of R21,294.00 in respect thereof. However, further on in their
answering affidavit allege that they submitted plans to the City on 3 February
2023 which plans were drawn by a certain Mbiza.
[28]. This allegation is denied by the Applicant, and they allege attached
documents do not indicate that they were ever submitted to the City. There is
no stamp from it to confirm that they received them.
[29]. More disturbing is the fact that the Respondents admit that they proceeded
with the construction of the buildings – without the approval of their plans by
the cit y. Their justification for this serious infraction is the allegation that they
commenced with the construction of the buildings in June 2023 at which
point they believed their architect had submitted the building plans to the
Applicant.
[30]. The submission of building plans does not accord one the right or permission
to build. One needs approval first before one can build and I am of the firm
view that the Respondent were very much aware of this requirement but
opted to go ahead as they are the law unto themse lves.
[31]. I have alluded to the fact that the court went on an inspection in loco and
found that the Respondents had dispute a court interdict in place, went
ahead and continued with the construction on Erf 1[...] and completed those
structures.
[32]. The Applicant inspectors took pictures of the premises on 28 August 2024
which showed certain buildings on a foundation phase. However, when this
court visited the premises, those buildings w ere three story high. A clear
indication that the Respondent had in flagrant disregard of the Court order of
16 July 2024 went ahead with the construction of these buildings.
[33]. Mr. Mhlanga argued further that some time in September 2024, the buildings
were invaded by a group of person who now occupy these buildings illegally
and suggested in v eiled fashion that the provisions of the Prevention of
Illegal Eviction and Unlawful Occupation of Lan d Act, 19 of 1998 would have
to be complied with or that they should have been joined in the matter .
[34]. The steps preceding this application were launched long before any
occupation of the units and in fact long before the completion of
construction. Even if it might be that the units were occupied by the time
of the belated answering affidavit, no particulars were furnished as to
when these occupiers commenced their occupation.
[35]. They clearly commenced their occupancy when the respondent had been
(repeatedly) informed of the municipality's contentions regarding the
unlawfulness of the construction. The respondent clearly permitted
occupancy of the units either in contravention of the Act and the
Regulations.
[36]. T h i s i s e v i d e n c e d b y t h e f a c t t h a t t h o s e t h a t w e m e t
a t t h e s a i d p r e m i s e s , c o n f i r m e d t h a t t h e y w e r e r e n t i n g
a n d p a y t o a c e r t a i n A l f r e d w h o s e o f f i c e w a s a r o u n d
t h e c o r n e r .
[37]. Again , I could not fathom how these people could have entered the
premises without the Respondents’ consent. On our arrival for the
inspection, the gates were locked and fortified.
[38]. In my view, these occupiers should look to the Respondent s for the relief
of any prejudice they might suffer but the Respondent s cannot claim a
procedural benefit because of their own unlawful actions. This point is
therefore rejected.1 In fact and in my view, this was done deliberate to
claim this procedural benefit and further delay the inevitable.
[39]. In conclusion, I find that, on the facts, the Respondent s have
contravened in flagrant disregard the court order of 16 July 2024 and
the provisions of section 4(1) of the Building Act.
[40]. No building plans have been submitted as per the order of the court of 16
July 2024. To further compound matters, the Respondents continued with
the constructions of these structures knowing very well that there is a court
order interdicting them from doing so.
[41]. The application for rezoning does not in my view assist them. This was an
after thought and a way to delay the inevitable.
[42]. Apart from the declaratory relief, the municipality is entitled to the
"demolition" relief. This would include the works unlawfully erected on
Erfs 1[...] and 1[...].
1 See also City of Tshwane v Styger (12306/2020) [2022] ZAGP PHC 173 (31 March 2022 )
[43]. On the issue of costs, not only should the customary rule that costs
should follow but, having regard to the brazen unlawful conduct of the
respondent s and their tardiness in prosecuting their opposition to the
application, coupled with the nature of the "defences" raised, I am of
the view that a punitive costs order is warranted.
[44]. In the circumstances, the following order is made :
Order
1. The rule nisi issued on 16 July 2024 is confirmed.
2. The erection of building works at the properties situated at 5[...] L[...] Street
(Erf 1[...]) and 5[...] L[...] Street (Erf 1[...]), Pretoria West, Pretoria (the
properties), whereby the dwelling houses have been converted into three
multiple storey buildings (one building at Erf 1[...] and two buildings at Erf
1[...]) contrary to the zoning certificates issued in respect of the properties
and which works have been done without building plans approved by the
City of Tshwane Metropolitan Municipality (the offending Works), are
declared unlawful and declared to be in contravention of section 4(1) of the
National Building Regulations and Standards Act 103 of 1977 and the
Regulations promulgated thereunder.
3. The City of Tshwane Metropolitan Municipality is authorised to enter the
properties and to demolish the offending works, which shall include all the
works whereby the dwelling houses were converted into four and three
multiple storey buildings and which shall include the electricity, water
drainage and sewerage installations installed in connection therewith and
such costs of demolishing will be borne by the respondents.
4. The respondents shall pay the costs of this application on a High Court
scale, including costs of two counsel in terms of scale C of Rule 67A of the
Uniform Rules of Court.
KUMALO MP J
Judge of the High Court of South Africa
Gauteng Division, Pretoria
Counsel for the applicant: Adv T Seneke SC and Adv S Mbeki
Instructed by: Leepile Attorneys Inc
Counsel for the respondents: Adv L Mhlanga
Instructed by: Precious Muleya Attorneys Inc