SCA rules that courts have a discretion to order the demolition of unauthorised/illegal building works on application by a neighbour

Jun 1, 2016 | 2016, News

BSB International Link CC owned property in Parkmore, Gauteng and its neighbour, Readam South Africa (Pty) Ltd, had a problem with the building works that BSB had undertaken.

Readam argued that BSB proceeded

  1. without the prior approval of building plans by the City of Johannesburg Metropolitan Municipality (the municipality) as required by the National Building Regulations and Building Standards Act 103 of 1977 (NBSA); and
  2. in contravention of the provisions of the Sandton Town Planning Scheme.

The Gauteng High Court sided with Readam. It appeared that BSB had not complied with the zoning provisions and that the municipality had, at some stage, cancelled its initial approval. The court said that the building was unlawful and ordered BSB to partially demolish it so as to ensure that it was compliant with the zoning laws.

BSB launched a counter-application against Readam’s initial claim, arguing that it was prejudiced by the inadequate record furnished by the municipality. The municipality, though cited as respondent in the High Court hearing, took no part in the matter. The High Court dismissed the counter-application but BSB nonetheless sought leave to appeal mainly on the basis that the court a quo had erred in dismissing its counter-application. The relief sought on appeal by BSB was that, as a consequence of the inadequate record, the order of the court a quo about partial demolition had to be set aside and replaced with an order compelling the municipality to provide the requested documentation for the matter.

What the SCA stated:

In applying the provision of the zoning scheme and section 21 of the NBSA, only a municipality or the Minister could approach the court for a demolition order.

In the circumstances the court a quo could thus not order demolition in terms of the NBSA, as an individual, such as Readam, does not have locus standi to pursue the remedies provided for in section 21. Such an individual would be restricted to seeking a mandamus in appropriate circumstances to compel the municipality or the Minister to act in terms of section 21 of the NBSA, should the municipality or Minister have failed to do so.

This did not mean that Readam was without a remedy. At common law the power to order the demolition of a building ordinarily finds application in the case of an encroachment by a building onto a neighbour’s property, but case law has held that encroachment is also a consideration where the rights of a neighbour are encroached upon, which would follow where zoning provisions are not adhered to. Our courts recognise that the contravention of a zoning scheme may have a direct adverse and harmful impact on the rights of others. The court a quo thus had and could exercise a discretion.

The appeal accordingly failed.

Read the case here