Dyecomber (Pty) Ltd and Another v East Coast Papers CC (AR 469/12) [2013] ZAKZPHC 61 (7 November 2013)

Dyecomber (Pty) Ltd and Another v East Coast Papers CC (AR 469/12) [2013] ZAKZPHC 61 (7 November 2013)

The court held that the encroaching structure was illegal, as no building plans had been approved by the municipality. In terms of section 4 of the National Building Regulations and Building Standards Act and the principle of legality, the court had no discretion to permit the illegal structure to remain, regardless of whether the application was brought by a neighbour or the municipality. The non-joinder of the municipality was fatal to the appellants' counter-application for compensation, as the municipality had a direct and substantial interest in any order permitting the illegal structure to remain. Even if a discretion existed, the appellants failed to discharge the onus of proving...

Citation
[2013] ZAKZPHC 61
Parties
Appellant: Dyecomber (Pty) Ltd; Appellant: Cotton King Manufacturers (Pty) Ltd; Respondent: East Coast Papers CC
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
7 November 2013
Case Number
AR 469/12
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal dismissed with costs, including costs of senior counsel.
Judges
Koen, Lopes, Chili
Legal Topics
Illegal Structure, Building Regulations, Encroachment, Removal of Structure, Compensation for Encroachment, Non Joinder
Land and Property Civil Procedure Illegal Structure Building Regulations Encroachment Removal of Structure Compensation for Encroachment Non Joinder

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Parties

Dyecomber (Pty) Ltd

Appellant

Cotton King Manufacturers (Pty) Ltd

Appellant

East Coast Papers CC

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the court had a discretion to order compensation instead of removal of an illegal encroaching structure.
  2. 2 Whether the non-joinder of the municipality was fatal to the counter-application for compensation.
  3. 3 Whether the appellants discharged the onus of proving the quantum of compensation.

Ratio Decidendi

The court held that the encroaching structure was illegal, as no building plans had been approved by the municipality. In terms of section 4 of the National Building Regulations and Building Standards Act and the principle of legality, the court had no discretion to permit the illegal structure to remain, regardless of whether the application was brought by a neighbour or the municipality. The non-joinder of the municipality was fatal to the appellants' counter-application for compensation, as the municipality had a direct and substantial interest in any order permitting the illegal structure to remain. Even if a discretion existed, the appellants failed to discharge the onus of proving...

Court Disposition

Appeal dismissed with costs, including costs of senior counsel.

Orders

  • The appeal is dismissed with costs, including costs consequent upon the employment of senior counsel.
  • The order of the court a quo is replaced with an order in terms of paragraphs 1, 2 and 3(a) of the Notice of Motion, save that the reference to 'two weeks' in paragraph 1(b) is substituted with 'two months'.