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[2012] ZAWCHC 312
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City of Cape Town v Therapeia Centre CC and Another (20966/11) [2012] ZAWCHC 312 (18 September 2012)
In
the High Court of South Africa
(Western
Cape High Court, Cape Town)
In
the matter between:
Case No: 20966/11
CITY
OF CAPE TOWN
...................................................................................................
Applicant
and
THERAPEIA
CENTRE CC
.................................................................................
First
Respondent
SEND
IT/ SA GIFTING
...........................................................................
Second
Respondent
JUDGMENT DELIVERED ON 18 SEPTEMBER
2012
BUIKM AN. AJ:
1.
The Applicant instituted proceedings against the First Respondent
for an order in terms of section 21 of the National Building
Regulations and Building Standards Act 103 of 1997 (“the NBR
Act”) for the demolition of certain parts of a building
owned
by the First Respondent and which is used for commercial
purpo:s.fe
:
s:{“th.e-d-emolition;::ap‘p'1i.catiO:n”)'.
The Second Respondent is cited only inasmuch as it has an interest
in the relief claimed, it having previously occupied an offending
portion of the building in respect of which the Applicant had
not
issued an occupancy certificate in terms of the NBR Act.
2.
There are two separate areas of the First Respondent’s
property which the Applicant seeks to have demolished - one pertains
to a timber deck which encroaches upon the Applicant’s
property and the second being certain offending renovations carried
.out to the first floor of the premises where the First Respondent,
in summary, enlarged and extended an office, built a balcony
and
increased the height of the roof. AN these structures arid
renovations, it is common caus^, are not;-:;; :: in accordance
with
approved building plans.
3.
The demolition application was postponed on 22 March 2012 at the
behest of the: First Respondent when it was first set down;
for
hearing. A
rule nisi
was issued, time periods were set for the filing of papers and the
matter was postponed to the semi- urgent roll on 30 May 2012.
Four
days before the matter was due to be heard in Gourt; an^iit almost a
month after its answering affidavit had to be filed,
the
7.Mr
Muller
,
the sole member of the First Respondent, appeared in person and
sought a postponement of the applications: ostensibly to obtain
legal representation. It appears However that he wishes to launch a
new application against the Applicant; on the basis that
it is
interfering with the First Respondeht-;s business and wants legal
advice in thisvregard.
8.
Given the history of the matter, and- the fact that the First
Respondent did not bring a substantive application for the
postponement of the;
:
demolition and review application save to advise me from the bar
that it wishes to institute new proceedings against the Applicant,
-
the application for the postponement was refused.
Background
common cause facts
9.
The First Respondent owns immovable property in Kenilworth,
is
zoned for business use.
10.
In February 1998 the Applicant rejected an application by First
Respondent to acquire a portion of the Applicant’s property^
which is situated directly adjacent to the First Respondent’s
property. The Applicant advised the First Respondent that
it
proposed to erect an electrical substation on its property.
11.
Notwithstanding the fact that no plans had been approved, the First
Applicant built the timber deck which encroached on the
Applicant’s
property.
12.
In 2006, after the deck’s construction, the First Respondent
submitted a further application to the Applicant to acquire
a
portion of the Applicant’s property (this time for a larger
portion than it had first applied for) in order to permit
an
extension to the existing business activities on. the First
Respondent’s : property.
13.
On 14 August .2006 the Applicant resolved that an area of
approximately 155 square metres be sold to the First Respondent
subject to the condition that the relevant portion be rezoned from
“municipal purposes" to “business use”.
14.
In 2007 the First Respondent submitted building plans for further
renovations to be done on its property. The timber deck
structure is
not reflected on these plans. These plans were approved on .26
February 2009.
15.
Instead of building in terms of the approved plans, the First
Respondent enlarged an office area on the plan, which was shifted
eastwards, with a row of pillars having been erected from the ground
floor to support the resultant overhang. The roof pitch
was also
materially different from that shown on the approved plans and
instead of building two sash windows, the First Respondent
inserted
doors opening onto a first floor balcony, itself not depicted on the
approved plans.
16.
In October 2009 the relevant sub-councii of the Applicant turned
down the First Respondent’s rezoning application and
hence the
sale lapsed.
17.
The First Respondent failed to avail itself of its right to lodge
its appeal rights timeously and the appeal process was accordingly
treated as invalid.
18.
Various attempts were made by the Applicant to enforce compliance
with the approved building plans. On 7 May 2009 the First
Respondent
was given until 7 July 2009 to rectify or demolish the deviations.
This led to a criminal summons being issued in
October 2009. The
First Respondent ignored the summons but eventually paid an
admission of guilt fine. Mr Muller maintains that
it did so because
it was “logisticaily and administratively” more
expedient to deal with the matter in this way.
19.
The First Respondent also allowed a tenant to occupy the premises
thereby contravening the NBR Act in that
:
no certificate of occupancy had been issued by the Applicant.
20.
On 11 January 2011 the Applicant issued another notice advising the
First Respondent that the balcony on the property: did
not conform
to the approved building plans. This notice wks not collected from
the post office. A further notice was despatched
by email to the
First Respondent on 22 March 2011. Again no response was received
from the First Respondent. On; 21 June 2011
the Applicant’s
attorneys directed a letter of demand to the First Respondent, which
was sent by registered post as well
as to the email of Mr Muller.
This letter too was not collected from the post office.
The
review application
21.
The First Respondent seeks to review and set aside the decision of
the Applicant taken in October 2009 to refuse the First
Respondent’s
application to rezone a portion of the Applicant’s land, which
the First Respondent wished to purchase.
22.
The review application is relevant to the timber deck structure in
as much as it is a defence to its demolition. In the event
that it
is successful, then the Applicant will have to reconsider the First
Respondent’s application for rezoning which
may mean that the
First Respondent might succeed in acquiring the land on which the
timber deck is presently an encroachment.
23.
Dealing with the review application, Mr Muller argued that the
application should not be before this Court but should instead
be
dealt with by the offices of the Public Protector. He contended that
various external bodies needed to evaluate the application
before
this Court could make a determination. Although he did not agree
that he was abandoning the First Respondent’s review
application, it seems that the thrust of Mr Muller’s argument
was that the review application was premature.
24.
This argument is of course at variance with that raised in the
founding affidavit of the review application. In this affidavit,
the
First Respondent contends that this Court must review the
Applicant’s decision and that it has the necessary
jurisdiction
to: do so.
25.
Having regard to the fact that the review application is before me,
I need to adjudicate it on its merits. There is no reason
that it
should be postponed so that various unnamed parties, including the
Public Protector, ought to first consider the merits
, of the
rezoning application.
26.
Mr Janisch, for the Applicant, argued that there is no merit in the
review application on the grounds set out in the founding
affidavit.
The First Respondent, he argues, did not give a sufficient
explanation for the inordinate delay in bringing the application
is
regard is had to the fact that it was launched two years after the
date when it ought to have been brought The First Respondent
had 180
days to bring its review proceedings ; in terms of
section 7(1)
of
the
Promotion of Administrative Justice Act 3 of 2000
and, given
that it received registered notice of the Applicant’s final
decision on appeal on 18 June! 2012, it ought to
have launched the
review application by no later than 18 December 2010.
27.
I agree with Mr Jantech that the reasons given for the delay in the
founding affidavit are indeed weak. Mr Muller was ostensibly
“very
disillusioned” with the process after the conclusions of the
internal appeals. He states at paragraph 58 in
his founding
affidavit that he was not aware of the right of review until he
sought assistance in opposing the Applicant’s
demolition
application. This averment conflicts with that advanced by Mr Muller
at the hearing of this application. He contended
that he was in fact
informed by his legal representatives at the time that there was
nothing that could be done. This is also
contrary to the number of
emails and correspondence annexed to the founding affidavit
exchanged between the Applicant and the
First Respondent from which
it is clear that Mr Muller was quite aware of the First Respondent’s
rights, including its
right to administrative justice. There can be
no doubt that the impetus for the review application was the
demolition application.
28.
The arguments raised by the First Respondent in its review
application are also without merit:
28.1.
the First Respondent failed to exhaust the internal remedies
available to him to achieve administrative redress before
approaching this Court. In this regard the First Respondent failed
to file his appeal in terms, of the Systems Act timeously and
also
failed to file his application to appeal the rezoning decision
within the requisite time in terms of the Land Use Planning
Ordinance;
28.2.
the grounds that are set out in the founding affidavit to
substantiate the review, in the main, relate to the Applicant’s
bias and alleged . administrative and : procedural unfairness. All
these arguments have been extensively dealt with by the Applicant
in
its answering affidavit and to which there is no reply.
29.
In the circumstances, I am satisfied that there is no merit in the
review application, which falls to be dismissed.
The
demolition application
30.
The demolition order that the Applicant seeks relates to two
distinct areas of building works on the premises the first being;
the timber deck (demarcated in blue on plan “NOM1” and:
“NOM2” to the notice of motion) and, second,
the
renovations to the first floor shown in yellow on annexures “NOM1”,
“NOM2” and “NOM3”
to the notice of motion.
The Applicant also wants an order interdicting and restraining the
First Respondent from permitting
any person occupying any portion of
the first floor unless the Applicant has issued the requisite
certificate of occupancy in
respect thereof.
31.
I am advised that the timber deck has in fact now been removed save
for the supporting pillars, which still encroach on the
Applicant’s
property.
32.
Mr Muller referred me to the fact that on
24
July 2012 the First Respondent submitted new plans “as-built”
plans to the
;
Applicant to obtain its approval for the illegal structures.
Although these new plans do not form part of the papers filed of
record, Mr Janisch suggested that any demolition order be
;
suspended pending the final determination of these new building
plans.
33.
It is not disputed that the structures that were built were illegal.
In the answering affidavit filed of record, the First
Respondent
sought to excuse the fact that it just went ahead and built the
timber deck without the Applicant’s permission
based on a
“legitimate expectation- that the property on which the deck
encroaches would be sold to the First Respondent.
34.
In exercising my discretion as to whether or not to grant a
demolition order, I need to weigh up the prejudice to the parties
and, also, to have regard to the dictates of legal and . public
policy. (See
Ndlambe Municipality v
Lester and Others
[2012] ZAECGHC 33
(3 May 2012))
35.
The offending structure forms part of a commercial premises and not
a residential dwelling. Furthermore, it is clear that
the First
Respondent has demonstrated a flagrant and sustained disregard of
the law over a long period of time. Every attempt
by the Applicant
to enforce compliance has been; thwarted. Despite admitting its
guiit and a conviction pursuant to a criminal
summons, the First
Respondent did not seek to remedy the deviations save that it has
now, on the eve of the hearing of. this
application, taken down the
timber deck (save for its pillars), and has submitted new plans to
approve the offending renovations.
36.
Having regard to all the circumstances, I see no reason why I should
not grant the Applicant the demolition order it seeks.
However,
now that the First Respondent has submitted new plans to approve the
deviations it has built, I will suspend, the demolition
order
pending the final determination by the Applicant of the new plans
and on the conditions set out in the order below. I mention
in this
regard that Mr Muller had no objection to such an order being
granted.
37.
Mr Muller did resist an order that the First Respondent be
;
interdicted and restrained from permitting any person to occupy any
portion of the first floor of the building on its property
unless
and until the Applicant has issued a certificate the renovations
have been approved of occupancy in respect: thereof.
Although he
argued that this was not logistically feasible, he was unable to
give any reason for this contention. Clearly, allowing
the property
to be occupied, in the absence of an occupancy certificate as is
required by section 14 of the NBR Act, is unlawful.
There is no
reason why I should not grant such an order in light of the fact
that the First Respondent
:
previously permitted people, more particularly the Second
Respondent, from occupying the unlawful property and thus committed
an offence in terms of section 14(4)(a) of the NBR
Costs
38.
Mr Janisch argued that this is a matter that warrants a special
order as to costs and seeks an order that the First Respondent
pay
the costs of the demolition application and the review application
on an attorney and client scale.
39.
I have already referred to the First Respondent blatant disregard
for the law and the Applicant’s processes which gave
rise to
the demolition appiication. The manner in which the First Respondent
conducted the litigation is also worthy of censure.
The review
application never had any prospect of success. This is also apparent
from the fact that no replying affidavit was
filed. In its answering
affidavit to the demolition application crude, unsubstantiated and.
entirely unjustified references are
made to “maladministration,
bias, mischief and possible personal pocket lining of officials.”
I agree with Mr Janisch
that the First Respondent clearly has no
respect for the law or the officials of the Applicant.
Accordingly,
I believe that it just that the First Respondent be ordered to pay
the Applicant’s costs on an attorney and
client scale to
ensure that it is not out of pocket in respect of the expenses the
First
Respondent caused by the litigation.
Accordingly,
I make the following order:
1.
The First Respondent’s review application is dismissed with
costs on a scale as between attorney and client.
2.
The First Respondent is ordered:
2.1.
to demolish the timber deck structure situated partly on Erf 65382
Kenilworth
{“the property
”)
and partly on Erf 64568 Kenilworth, the extent of which is shown in
blue on annexures “NOM1” and “NOM2”
hereto,
including the supporting pillars; and
2.2.
to demolish the first floor structure of the building on the
property the extent of which is shown in yellow on annexures
“NOM1”,
“NOM2” and “NOM3” hereto, including the
balcony comprising the southern portion thereof,
the roofing
structure and the ground floor pillars supporting the eastern extent
thereof; and
2.3.
to restore the building on the property to the state as shown in the
building plan approved on 26 February 2009 (plan no.
A78501).
3.
The First Respondent is interdicted and restrained from permitting
any person to occupy any portion of the first floor of the
building
on the property unless and until the.Applicant has issued a
certificate of occupancy in respect thereof.
4.
The relief in paragraphs 2.2. and 2.3 above is suspended pending the
final determination of the First Respondent’s application
for
building plan approval in respect of the deviations referred to in
paragraph 2.2 above originally submitted on 24 July 2012
under plan
no. 02097/2012, on the following conditions:
4.1.
the First Respondent shall have finally submitted the said
application, in its entirety, by no later than 16h00 on Monday
24
September 2012, failing which the suspension
4.2.
the First Respondent shall have submitted any further amendments to,
or information pertaining to, the said plans which the
Applicant may
require in due course within two weeks of such requirement being
imposed, failing which the suspension shall lapse;
4.3.
the suspension shall also lapse in the event that the said
application is finally not approved by the Applicant (which shall
include the dismissal of any interna! appeai in terms of the
Local
Government: Municipal Systems Act 32 of 2000
); and
4.4.
the suspension shall also lapseinthe event that the Ffirsl:
Respondent commits or permits any: breach of jparagra 3 above.
5.
Should the First Respondent fail to comply with the order in
paragraph 2.1 by 30 September 2012 or to comply with the
order in paragraph 2.2 within 30 days of the
date suspension lapses, the Applicant is authorized to carry
said demolition and to recover the reasonable
costs thereof from the First Respondent, and the First Respondent is
directed to
permit the Applicant access to the property and the
building for purposes of so doing.
6.
The First Respondent and/or the Sheriff is prohibited from selling
or passing transfer of the property to any third party (whether
voluntarily or by way of sale in execution) without such third party
first accepting the. obligations in terms of paragraphs
2, 4 and 5
above, and the Applicant is authorised to note the contents of this
Order as a
caveat
against the title deeds of the property.
7.
The First Respondent is directed to pay the Applicant’s costs
pertaining to the demolition application, on a scale as
between
attorney and client, including the costs pertaining to the previous
hearing dates for the said application on 22 March:
2012 and 30 May
2012 and any costs pertaining
to
the First Respondent’s application to stay the said
application dated 24 May 2012
BUIKMAN, AJ