Body Corporate of Roosmaryn v City of Tshwane Metropolitan Municipality and Another (44120/15) [2017] ZAGPPHC 429 (14 July 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 44120/15

Not reportable

Not of interest to other judges

In the matter between:

THE BODY CORPORATE OF ROOSMARYN Applicant

and

THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent

JACOBUS ALBERTUS VAN NIEKERK Second Respondent

JUDGMENT

PETERSEN AJ:

[1] This is an interlocutory application seeking to join the first respondent, the City of Tshwane Metropolitan Municipality to the main application in terms of Uniform Rule 10.

[2] Rule 10( ) of the Uniform Rules of Court read with Rule 6(14) provides that:

'Several defendants may be sued in one action either jointly, jointly and severally, separately or in the alternative, whenever the question arising between them or any of them and the plaintiff or any of the plaintiffs depends upon the determination of substantially the same question of law or fact which, if such defendants were sued separately, would arise in each separate action'.

[3] In the main application the applicant seeks relief against the second respondent in terms of section 4(1) and 21 of the National Building Regulations and Building Standards Act, 103 of 1977("the National Building Regulations and Building Standards Act"), "inclusive of but not limited to the demolition of certain building works at the second respondent's property premised on the alleged contravention of the Act."

[4] Sections 4(1) and 21 of the National Building Regulations and Building Standards Act provide as follows:

"No persons 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 the Act... "

"Notwithstanding anything to the contrary contained in any law relating to the Magistrates' Court, a Magistrate shall have jurisdiction, on the application of any local authority or the Minister, to make an order prohibiting any person from commencing or proceeding with the erection of any building or authorizing such local authority to demolish such building if such Magistrate is satisfied that such erection is contrary to or does not comply with the provisions of this Act or any approval or authorization granted thereunder.

[5] The applicant is a body corporate which administers a sectional title scheme known as Roosmaryn. The second respondent owns a property known as Unit 25 Roosmaryn in the sectional title scheme. It is common cause that the second respondent commenced building work at the property without approved building plans. The first respondent as a result issued a contravention notice in terms of section 4(1) of the National Building Regulations and Building Standards Act on 30 September 2013. On the 25 November 2014 the second respondent complied with the section 4(1) notice by submitting building plans for approval by the first respondent. The first respondent subsequently advised the second respondent to obtain approval of his proposal from the Body Corporate by way of a Special Resolution from the Board of Trustees, prior to final approval of the building plans in accordance with section 24 of the Sectional Titles Act 95 of 1986. A stalemate has been reached in obtaining the aforementioned approval from the applicant.

[6] The first respondent's view is that the second respondent has a building application which is approvable save for the outstanding resolution from the applicant. The first respondent abides by the decision of the court and does not oppose the application for joinder.

[7] The main application is premised on non-compliance with section 4(1) of the National Building Regulations and Building Standards Act; and pursuant to Rule 28(3) of the Sectional Titles Act. The applicant seeks to join the first respondent submitting that it has a direct and substantial interest in the main application; and on the basis that it is responsible for the administration of the National Building Regulations and Building Standards Act.

[8] The first respondent, a local authority, with locus standi in terms of section 21 of the National Building Regulations and Building Standards Act has no intention of invoking the section as result of compliance with the section 4(1) notice by the second respondent. At face value the issue in the main application turns on whether or not the applicant has locus standi to seek a demolition order in terms of section 21 of the National Building Regulations and Building Standards Act.

[9] The applicant in oral argument before this court made two submissions in the following terms: that the first respondent has a direct and substantial interest in the relief sought; and that it would be convenient to join the first respondent.

[10] The applicant initially in its heads of argument relied on the decision of Lester v Ndlambe Municipality and Another [2013] ZASCA 95 (SCA), 2015 (6) SA 283 (SCA) [2014] 1 All SA 402 but in oral argument distanced itself from the decision opting to rely on the more recent decision of BSB lntemational Link CC v Readom SA (Pty) Ltd and one other (279/2015) [2016) ZASCA 58 (13 April 2015).

[11] In Lester v Ndlambe the Court confirmed the locus standi of the municipality and the Minister in an application in terms of section 21 of the National Building Regulations and Buildings Standards Act; and further that the Magistrates' court had no discretion but to order complete demolition of a building once the jurisdictional fact that the building was erected contrary to the National Building Regulations and Buildings Standards Act was established.

[12] In BSB v Readom the Court confirmed the decision in Lester v Ndlambe that: "(23)...only a .local authority or the Ministerhas locus standi to bring an application in terms of s 21 before a magistrate. The statutory right to seek the remedies provided for in s 21 is clearly

intended to enable local authorities and the Minister to ensure compliance with the provisions of the NBSA in relation to town-planning schemes. Consequently an individual with standing to bring an application to review and set aside the unlawful approval of building plans by a local authority would not have locus standi to pursue the remedies provided for in s 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 s 21 of the NBSA, should the municipality or Minister have failed so to act."

[13] The applicant submits that the facts of 8SB v Readom are analogous to the facts of the present matter and places specific reliance on para 2: 'Although the City of Johannesburg Metropolitan Municipality (the municipality) was cited as the first respondent, it filed no answering affidavit and took no part in the proceedings. This was despite the fact that the primary relief sought by Readom, in terms of rule 53 of the Uniform Rules of Court, was directed at reviewing and setting aside the building plans approved by the municipality in terms of s 7 of the National Building Regulations and Building Standards Act 103 of 1977 (the NBSA)". In Readom the City of Johannesburg had a direct and substantial interest in the matter as specific relief was sought against it. The facts of Readom are distinguishable from the facts of this matter.

[14] In an application for joinder a court is not called upon to decide the prospects of the applicant in the main application. The only issue for determination in an application for joinder is whether the first respondent should be joined to the main application either on the basis that it has a substantial interest in the matter or as a matter of convenience.

[15] Having considered the evidence before me and the submission of counsel for the applicant and second respondent, I find that the balance of convenience favors the joinder of the first respondent to the main application, as there would be no prejudice to the second respondent in doing so. Having heard the submissions on costs, I can find no basis for a punitive cost order as argued by counsel for the second respondent as the issue at hand was arguable. The applicant in its application initially tendered the costs of this application. In view of this court's finding, even though the application was opposed and the applicant has been successful on the basis of a balance of convenience, the dictates of fairness in my view favors an order that the applicant pays the costs of this application.

[16] In the result:

1. The application for the joinder of the first respondent to the main application is granted.

2. The applicant is to pay the costs of this application.

_________________

AH PETERSEN

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

Appearances:

On behalf of the Applicant : Advocate P Venter

Instructed by Van Zyl Le Roux Incorporated

On behalf of the Second Respondent: Adv RC De Alcantara

Instructed by Tiaan Smuts Attorneys

DATE HEARD: 02 May 2017

DATE OF JUDGMENT: July 2017