Cachalia v Lehwright Proprietary Limited (Makgoba JP, Phatudi J, Tshidada AJ) [2020] ZALMPPHC 14 (26 March 2020)

Cachalia v Lehwright Proprietary Limited (Makgoba JP, Phatudi J, Tshidada AJ) [2020] ZALMPPHC 14 (26 March 2020)

The court found that the appellant constructed the pigeon loft less than 1 meter from the boundary, in clear contravention of the National Building Regulations and Building Standards Act, applicable bylaws, and the Town Planning Scheme. The purported municipal approvals were tainted by fraud, as the relaxation clause was inserted into the consent form after it was signed by the respondent. The building plans were not properly approved by the authorised municipal officer. The court held that fraud vitiates all administrative processes and that no advantage obtained by fraud can be retained. The respondent, as an adjoining landowner, was entitled at common law to seek a demolition order for...

Citation
[2020] ZALMPPHC 14
Parties
Appellant: Yusuf Cachalia; Respondent: Lehwright Proprietary Limited
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
26 March 2020
Case Number
HCA 02/2019
Procedural Posture
Civil Appeal / Appeal From Single Judge Decision; Judgment Delivered
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Makgoba, Phatudi, Tshidada
Legal Topics
Building Regulations, Nuisance, Town Planning Scheme, Fraudulent Misrepresentation, Demolition Order, Municipal Approval
Land and Property Delict Civil Procedure Building Regulations Nuisance Town Planning Scheme Fraudulent Misrepresentation Demolition Order +1 more

Case Brief

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Parties

Yusuf Cachalia

Appellant

Lehwright Proprietary Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Single Judge Decision; Judgment Delivered

Legal Issues

  1. 1 Whether the appellant constructed the pigeon loft in compliance with legislative and legal requirements, including the Town Planning Scheme.
  2. 2 Whether the pigeon loft and the keeping of pigeons create a persistent and continued nuisance for the respondent.
  3. 3 Whether the respondent was entitled to a demolition order without first seeking review and setting aside of municipal approvals.

Ratio Decidendi

The court found that the appellant constructed the pigeon loft less than 1 meter from the boundary, in clear contravention of the National Building Regulations and Building Standards Act, applicable bylaws, and the Town Planning Scheme. The purported municipal approvals were tainted by fraud, as the relaxation clause was inserted into the consent form after it was signed by the respondent. The building plans were not properly approved by the authorised municipal officer. The court held that fraud vitiates all administrative processes and that no advantage obtained by fraud can be retained. The respondent, as an adjoining landowner, was entitled at common law to seek a demolition order for...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel.
  • The order of the court a quo directing the appellant to demolish the pigeon lofts and to cease keeping pigeons in a manner creating a nuisance is confirmed.