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 HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: 1444/2024
In the matter between:
RAY NKONYENI MUNICPALITY APPLICANT
and
JPA RAS EIENDOMME (PTY) LTD RESPONDENT
ORDER
The following order is granted:
The respondent is ordered to pay the costs of the application on a party and
party scale on scale B.
REASONS
Delivered on: _____________
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Matlamela AJ
[1] The applicant is a local municipality, duly established in terms of the
Local Government: Municipal Structures Act 117 of 1998, read with s 155(1) of
the Constitution.
[2] The a pplicant is a competent authority , as defined in s 1 of the Spatial
Planning and Land Use Management Act 16 of 2013 (SPLUMA), which is
empowered to grant or approve the right to use land for any purposes specified
in the Ray Nkonyeni Special Development Framework.
[3] In this application, the applicant seeks to assert its constitutional authority
to enforce building regulations in its area of jurisdiction, consequent upon the
unlawful cons truction and use of a shop/ restaurant upon the immovable
property described as Portion 1 of the Farm Lucas, No 2626, Hibberdene (the
property).
[4] The parties subsequently concluded a settlement agreement , and the
relevant paragraphs are as follows:
‘F: Subsequent to the institution of the application, and during August 2025, the Respondent
undertook for settlement purposes and to avoid further cost on both sides the partial
demolition of the unlawful structures erected on the property, leaving certain remnants
thereon, including a concrete slab.
G: In light of the Respondent’s demonstrated compliance, the parties have agreed to settle
the matter and wish to record the terms of their agreement.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1. SETTLEMENT TERMS
1.1 The Respondent undertakes to complete, at its own cost, demolition and removal of
any remaining and without any admission of the unlawfulness or otherwise of the
erection thereof, the structures, remnants and concrete slabs erected on the property
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on or before the 30 th November or such further date agreed upon in writing, thereby
rectifying the contraventions identified under the NBSA and the Municipal Scheme.
1.2 The issue of costs shall be placed before the Honourable Court for determination.’
[5] This judgment will deal with the issue of costs. There is no dispute that
the respondent erected a structure , which was a park home container on the
property without the applicant’s approval.
[6] On 27 September 2021, a notice of contravention was issued to the JWA
Trust, the previous owner of the property, to alert it that the structure was
erected without the applicant’s consent , in contravention of ss 4(1) and (4) of
the National Building Regulations and Building Standards Act 103 of 1977
(NBRBSA). The notice was delivered to Mr Daniel Prinsloo.
[7] Section 4 of the NBRB SA outlines the application process of erecting a
building, stating that written approval from a local authority is required before
construction begins:
(a) In terms of s 4(1) of the NBRBSA, ‘[n]o 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’.
(b) Most importantly is that, in terms of s 4(4), ‘Any person erecting any
building in contravention of the provisions of subsection (1) shall be guilty of
an offence and liable on conviction to a fine not exceeding R100 for each day
on which he was engaged in so erecting such building’.
[8] Municipalities are competent authorities , as defined in s 1 of SPLUMA
and as such are empowered to grant or approve the right to use land for any
purpose specified in their special development framework. This means
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municipalities are responsible for ensuring that their development and town
planning schemes are complied with.
[9] In order for a person to erect any structure on their propert y, they would
first need to obtain written approval from their local authority for their building
plans.
[10] Reverting back to the facts of the matter, o n 30 September 2021, the
applicant received an application for a business licen ce for the operation of a
takeaway drive-through on the property. The address of this entity is situated at
the Remainder of Erf 7[...], H[...] and not on the property. This application was
brought by Mr Daniel Prinsloo , on behalf of Carousel Holiday Resort. The
applicant has not issued a business licence for Carousel Holiday Resort on the
property.
[11] On 28 October 2021, the applicant issued a notice to the JWA Trust,
notifying it that it was in contravention of clause 2.2.1 of the Ray Nkonyeni
Municipal Scheme (the Scheme) and bylaw 87(1)(b) of the Ray Nkonyeni
Municipal Planning and Land Use Management Bylaw, 2019 (the Bylaw):
(a) The contravention notice read as follows:
‘JWA TRUST are contravening the said clause by using or permitting the use of Portion 21
of the Farm Lucas No 2626 as a shop and/or Restaurant, which is/are a consent use in terms
of the Scheme provided that there are a minimum of 50 dwelling units on the property, as
there are no dwelling units on the property , the use of a Shop and/or Restaurant is/are
prohibited in terms of the said Scheme.’
(b) The contravention notice read further as follows:
‘In consequences of a contravention of the provisions of the aforesaid Scheme you are acting
illegally in that you are contravening Sec 87 (1) (b) of the Ray Nkonyeni Municipal Planning
and Land Use Management Bylaw 2019 by using or permitting the use of Potion 21 of the
Farm Lucas No 2626 as a Shop and/or Restaurant…
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The said activities as described above is/are prohibited, the Ray Nkonyeni Municipality in the
capacity as the enforcement authority in terms of the Bylaws hereby notifies you, JWA Trust,
that you are guilty of an offence in terms of Sec 87 (1) (b) and (2) of the Bylaw.’
[12] It was further indicated in the contravention notice that in consequence of
the previous owner’s contravention of the provisions of the Scheme, the
previous owner was acting illegally in that it contravened bylaw 87(1)(b) of the
Bylaw by using or permitting the use of the property as a shop and/or restaurant.
[13] The contravention notice further read as follows:
‘AND WHEREAS YOU, J W A TRUST, are contravening the Clauses 2.2.1 of the Ray
Nkonyeni Municipal Scheme by using or permitting the use of Portion 21 of the Farm Lucas
No 2626 as a Shop and/or Restaurant, which is/are a consent use in terms of the Scheme
provided that there are a minimum of 50 dwelling units on the property, as there are no
dwelling units on the property, the use of a Shop and/or Restaurant is/are prohibited in terms
of the said Scheme.’
[14] On 3 November 20 21, the previous owner’s legal representatives (Dykes
Van Heerden Inc), wrote a letter to the applican t. The letter indicate d that JWA
TRUST is the seller of the property and the property was in the process of being
sold:
(a) They indicated further that the purchaser had taken occupation of the
property and they had written to the purchaser and notified them to immediately
cease operations on the property.
(b) The attorneys further indicated that they would obtain a written
undertaking from the purchaser that they w ould not continue to operate the
business in contravention of the bylaw.
[15] The applicant received a nother letter dated 28 July 2021 from HNK
Geometrics (who are l and surveyors), appointed by Mr Prinsloo (the owner of
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Carousel Holiday Resort) to undertake an application to subdivide the portion of
the property that is adjacent to the main road , R61, and to rezone the said
portion to ‘Low impact Mixed used 1’. This zone will permit the building of a
restaurant, which is to be the primary intended use of this parcel of land.
[16] The respondent is a private company duly incorporated in terms of the
company laws, with its registered address situated at 7[...] S[...] Road,
Hibberdene and is the owner of the property. The previous owner was the JWA
Trust, until it was transferred to the respondent on 3 January 2022.
[17] The respondent was also served with the abovementioned contravention
notices on 27 September 2022.
[18] The applicant’s attorneys issued a further contravention notice letter
dated 21 February 2023. The respondent acknowledged receipt of the letter on 8
March 2023.
[19] The application was instituted on 1 February 2024 and served on the
respondent on 9 March 2024.
[20] The notice of set down on the unopposed motion roll on 20 March 2024
was issued on 22 February 2024. On 15 March 2024, the respondent filed a
notice to oppose the application. On 19 March 2024, a notice of removal of the
matter from the roll was filed.
[21] The second notice of set down was issued on 26 July 2024, which place d
the matter on the court roll o n 26 September 2024. Again, a notice of removal
from the unopposed roll was issued on 21 August 2024. On the same date , the
matter was reinstatement for hearing on 22 October 202 4. On this date , the
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matter was adjourned to 18 November 2024 and the respondent was directed to
pay the costs.
[22] The answering affidavit was issued and served on 14 November 2024.
[23] The respondent disputed the right of the applicant to issue the
contravention notice. Instead, the respondent , as its defence, relied on ss 13(1)
and 14 of the KwaZulu-Natal Provincial Roads Act 4 of 2001 , which read as
follows:
‘13 Structures adjacent to and on provincial roads
(1) A person may not, without the prior written permission of the Minister, which
permission may be conditional or unconditional, erect, lay, establish or alter any structure or
permit the erection, laying, establishment or alteration of any structure-
(a) on, over or below the surface of a provincial road so as to encroach on a provincial
road; or
(b) in a building restriction area within fifteen metres of the boundary of a main road or
district road…
14 Fencing on provincial roads
(1) The Minister may, based on objective criteria established in regulations, authorise the
erection of fencing adjacent to a provincial road and the fencing must thereafter be
maintained by the owner of the property adjacent to the provincial road.
(2) An owner of land adjacent to a provincial road is responsible for all maintenance of
any fence adjacent to his or her property and constructed by the Department.
(3) The Minister may, notwithstanding the Fencing Act, 1963 (Act 31 of 1963), in his or
her discretion, authorise a contribution for the maintenance of any fence adjacent to a
provincial road, but this provision does not remove or diminish the responsibility of the
owner of land adjacent to a provincial road for maintaining any fence adjacent to his or her
property.
(4) Sections 22 to 27, inclusive, of the Fencing Act, 1963 (Act 31 of 1963), apply mutatis
mutandis to this section.’
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[24] Before the institution of this application, the respondent had not raised
this technical defence in the letters that the parties were exchanging. It was only
raised for the first time in the answering affidavit.
[25] The issue of raising technical points has been dealt with in many cases .
The broad and general principles in dealing with procedural technical points are
as follows:1
‘(a) The court does not generally encourage a formalistic approach in the application of
the rules as the rules should not be regarded as an end in themselves.2
(b) Technical objection based on procedural defects should not be permitted unless the
other party would suffer prejudice as a result.3
(c) The superior court may in the exercise of their inherent power adjust the rules
depending on the circumstances of a given case.4
(d) The rules of court are designed to achieve justice and thus courts will in the exercise
of their inherent power, relax the application of the rules where strict application thereof may
result in substantial injustice.5’
[26] The aforesaid principles must be balanced against the foundational
purpose of the rules, as well as the time periods prescribed therein, of which the
purpose is to assert the control of the court over its processes and the speedy
resolution of disputes.6
[27] River Gate Properties (Pty) Ltd and Another v Asmal NO and Others 7
dealt with the legal principles applicable when dealing with illegal structures.
The following paragraphs are relevant:
1 Msibi v Road Accident Fund [2025] ZAGPJHC 1084 para 36.
2 Federated Trust Ltd v Botha 1978 (3) SA 645 (A).
3 Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A).
4 Khunou and Others v M Fihrer & Son (Pty) Ltd and Others 1982 (3) SA 353 (W).
5 Hart and Another v Nelson 2000 (4) SA 368 (E).
6 De Bruyn v Mile Inv 307 (Pty) Ltd and Others [2017] ZAGPPHC 286 para 19.
7 River Gate Properties (Pty) Ltd and Another v Asmal NO and Others [2018] ZAGPJHC 89 ( River Gate
Properties).
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‘[49] The issue of illegal structures erected on land is governed by section 4 (1) read with s 4
(4) of the NBSA which provides that:
"No person shall, without 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 the Act….Any person … in contravention of the provisions
…shall be guilty of an offence and liable on conviction to a fine not exceeding R100
for each day on which he was engaged in so erecting such building”
[50] The objective of the NBSA as stated in Lester v Dlambe Municipality and Another, by
Madjiet JA, is:
“To provide uniformity in the law relating to the erection of buildings in the area of
jurisdiction of local authorities and to prescribe buildings standards.”
[51] In terms of 4 (4) of the NBSA, it is a criminal offence to erect a building without the
approval of the municipality as required in terms of the provisions of s 4 (1) of the NBSA.
[52] The remedy of demolition of a building that has been constructed in breach of s 4 (1) of
the NBSA can either be under the provisions of s 21 of the NBSA or under private
(neighbour) law in terms of s 7 (1) (b) (ii) (bb) of the NBSA.
[53] Section 21, provides locus standi to approach the magistrate court for the demolition of a
building erected without compliance with the requisites of the NBSA by either the
municipality or the Minister. In other words individuals affected by non -compliance with the
statutory requirements do not have locus standi to approach the magistrate court for an order
of demolition. An individual may in certain circumstances seek a mandamus to compel either
the Minister or the municipality to act.
[54] It is clear from the reading of s 21 of the NBSA that the remedy for breach of s 4(1)
gives rise to the remedy in public law. In this respect the magistrate on application by the
local authority or the Minister has authority to prohibit any person from commencing or
local authority or the Minister has authority to prohibit any person from commencing or
proceeding with an erection of a building or demolition of a building that does not comply
with the law.
[55] In Lester, the High Court asked the question why statutory breach which gives rise to the
same claim under the private or public law can afford the court discretion under private law
and not under public law. In answering that question on appeal, the SCA said:
"The answer is simply that the law cannot and does not countenance on -going
illegality which is also a criminal offence. To do so, would be to subvert the doctrine
of legality and to undermine the rule of law.”
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[56] The complaint of the applicants in the present matter was triggered by the disqualifying
factors envisaged in s 7 (1)(b)(ii) of the NBSA. The case of the applicants is that the units
were erected or being erected in a manner that is objectionable and also that they derogate
from the value of the neighbouring properties. The complaint in that regard relates to the
erection of buildings done without compliance with the provisions of the NBSA. In dealing
with the conduct similar to the present the court in Standard Bank of SA Ltd v Swartland
Municipality and Others, said:
“The unauthorised and illegal conduct of the third respondent [in unlawfully erecting
a structure without approved plans] is contra boni mores and contrary to public
policy, and cannot be condoned by the court. It militates against the doctrine of
legality, which forms an important part of our legal system, and more especially since
the Constitution became the supreme law of the country”.
[57] The remedy of an individual whose rights in terms of s 7(1) (b) (ii) of the NBSA have
been breached may approach the court on the basis of common law private (neighbour) law.
[58] It is undisputed in the present matter that the buildings in question were erected by the
respondents with no approved building plans by the municipality. Although the Trust
contended that the plans were submitted to the Municipality on 2 November 2016, there is no
proof of such. The municipality insisted that the buildings were erected without approved
building plans and thus, as stated somewhere else in this judgment, the structures on the
property are unlawful.’
[28] I agree with what was held in River Gate Properties. It applies to the case
at hand.
[29] Eventually, the parties entered into a settlement agreement, which
provides that the respondent undertakes to complete, at its own costs, the
demolition and removal of any remaining structures, remnants and concrete
demolition and removal of any remaining structures, remnants and concrete
slabs erected on the property on or before 30 November 2025 , to rectify the
contravention identified under the NBRBSA and the Scheme . Such an
undertaking was made without any admission of the unlawfulness or otherwise
of the erection of the structures.
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[30] As I have indicated above, the issue of costs was placed before the court
for determination.
[31] The award of costs is a matter wholly within the discretion of the cour t,
which discretion must be exercised on the grounds upon which a reasonable
person could have come to the conclusion arrived at.8
[32] It is a fundamental principle that the party who succeeds should be
awarded costs, and this route should not be departed from except on good
grounds. The court still retains a judicial discretion in awarding costs.
[33] In this application , the respondent has been guilty of contravening
municipal laws or national laws. It was served with letters wh ich provided it an
opportunity to settle this matter before the application was instituted. It chose to
file an answering affidavit wherein it raised technical points , which were never
raised prior to litigation, at which stage the applicant would have considered its
position.
[34] The fact that it is the applicant who instituted the application instead of
the Minister does not mean that the respondent is not guilty of the contravention
of the legislation concerned.
[35] The High Court of Souther n Rhodesia had adopted the view that when a
statutory body is engaged in litigation , the general rule that costs follow the
event should apply, but that the court will be justified in departing from the
8 A C Cilliers, C Loots and H C Nel Herbstein and Van Winsen Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa 5 ed (2009) at 955.
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general rule when the body concerned has acted impartially and not
unreasonably in exercising its statutory duties.9
[36] The delay in settling the matter cannot be ignored and the erection of the
structure dates to 2021. Between 2021 and 2024, the parties were
communicating by exchange of letters. In all these years, the respondent never
raised any technical points . The respondent only raised such a point in the
answering papers as a defence on 14 November 2024, wh en the matter was
already in court.
[37] Even if I were to accept the respondent’s technical points, the respondent
remains in contravention of the NBRBSA. The respondent cannot just erect a
structure without approval from the Minister or the municipality concerned.
[38] The settlement agreement is in line with the relief contained in the notice
of motion. This indicates that the applicant has been successful in this matter
and costs shall follow the event.
[39] The fact that the Minster is not a party to this litigation does not change
the fact that the respondent contravened the NBRBSA. The applicant acted in
good faith to protect the area in question.
[40] There are no reasonable grounds for me to depart from the general
principle applicable to the award of costs.
[41] I accordingly make the following order:
9 L & B Holdings (Pvt) Ltd v Mashonaland Rent Appeal Board and Others 1959 (3) SA 466 (SR) at 470D-G.
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The respondent is ordered to pay the costs of the applica tion on a party and
party scale on scale B.
_____________________
MATLAMELA AJ
Appearances:
Counsel for the applicant: K Mshengu
Instructed by: Sandile Dlomo Inc
Counsel for the respondent: C Rodel
Instructed by: Van Heerden Attorneys
Heard on: 22 October 2025
Delivered on: 27 February 2026.