BSB International Link CC v Readam South Africa (Pty) Ltd (279/2015) [2016] ZASCA 58; [2016] 2 All SA 633 (SCA); 2016 (4) SA 83 (SCA) (13 April 2016)

Key Facts

Issues

• The primary issue centered on whether the City of Johannesburg Metropolitan Municipality's approval of building plans for Erf 426 in Parkmore Township, issued under section 7 of the NBSA, was lawful. The court also examined the interplay between common law remedies for illegal encroachments and statutory demolition powers under section 21 of the NBSA, particularly regarding the municipality's failure to enforce compliance with the Sandton Town Planning Scheme.
• The court addressed whether Readam, as an adjacent property owner, had legal standing to pursue a common law remedy for the unlawful construction of a building by BSB. The case emphasized that Readam's rights under the Sandton Town Planning Scheme were directly impacted by the illegal structure, justifying its intervention despite the municipality's statutory role in enforcement.
• A key issue was the contrast between the broad judicial discretion under common law (neighbour law) to order partial demolition and the perceived lack of discretion under section 21 of the NBSA, which mandates total demolition when a building is erected in contravention of the Act. The court concluded that in this case, common law principles applied, permitting a partial demolition order to address the illegality without requiring complete removal.

Holdings

• The temporary certificate of occupancy issued in 2013 was declared unlawful, as its validity depended on the prior unlawful approval of building plans. The second certificate was moot.
• The appeal was dismissed with costs, except for the amendments to the order regarding the building plan approval and demolition conditions.
• The court dismissed BSB's counter-application, determining it failed to raise a genuine dispute of fact regarding the scheme's coverage and parking requirements.
• The partial demolition order was upheld, but the court added that a suitably qualified engineer must certify the structural integrity and safety of the building and adjacent structures before any demolition occurs.
• An interdict was granted preventing BSB from occupying or permitting occupation of the building until a valid certificate of occupancy is issued under s 14(1)(a) of the NBSA.
• The court amended the order to review and set aside the municipality's unlawful approval of the building plans under s 7 of the NBSA, finding the approval invalid due to non-compliance with the Sandton Town Planning Scheme's coverage and parking requirements.

Remedies

• The court reviewed and set aside the first respondent's approval of the building plans under Reference No 2012/12/0397 in respect of Erf 426, Parkmore Township, measuring 991m², which was found to be unlawful under sections 7 and 21 of the National Building Regulations and Building Standards Act 103 of 1977 (NBSA).
• The court amended the order to require a suitably qualified engineer to certify that partial demolition of the building will not compromise the structural integrity and safety of the building or adjacent buildings. This was added to paragraph 4 of the high court's order.
• The appeal is dismissed with costs, except to the extent amended in paragraphs 1 and 4 of the order. The court a quo's order is otherwise upheld.

Legal Principles

• The court emphasized the enforcement of the National Building Regulations and Building Standards Act (NBSA) and town planning schemes as essential to maintaining the rule of law. It highlighted the importance of addressing unlawful building practices to prevent subversion of legal standards.
• The court applied a purposive interpretation of the NBSA, particularly s 21, to ensure judicial oversight and balance between statutory obligations and equitable remedies. This approach was used to justify partial demolition orders under common law while acknowledging statutory constraints.
• The judgment involved judicial review of the municipality's approval of building plans, determining that the approval was unlawful under the NBSA. The court also assessed the proportionality and necessity of demolition orders in light of statutory and common law obligations.

Precedent Name

• Camps Bay Ratepayers' and Residents' Association & another v Harrison & another
• JDJ Properties CC & another v Umngeni Local Municipality & another
• Zweni v Minister of Law and Order
• Turnbull-Jackson v Hibiscus Coast Municipality
• Wightman t/a JW Construction v Headfour (Pty) Ltd & another
• Lester v Ndlambe Municipality and another
• De Villiers v Kalson
• National Director of Public Prosecutions v King
• Absa Bank Ltd v Mkhize & two similar cases

Cited Statute

• National Building Regulations and Building Standards Act 103 of 1977
• Constitution of South Africa
• Town Planning and Townships Ordinance 15 of 1986

Judge Name

• V M Ponnan
• J Victor
• D Kathree-Setiloane
• S A Majiedt
• K G B Swain

Passage Text

• In a case such as this a court is possessed of a broad general discretion to be exercised after affording due consideration to all the relevant circumstances.
• stark dichotomy between discretion at common law and discretion in terms of s 21 of the NBSA.
• The order granted by the court a quo which directed that the property be demolished to the extent necessary to ensure compliance with the scheme, can accordingly not be faulted.