Ekurhuleni Metropolitan Municipality v Voltaire Investments CC and Others (4888/2018) [2019] ZAGPJHC 448 (5 November 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 4888/2018

In the matter between: Ekurhuleni Metropolitan Municipality Applicant and Volatire Investments CC First Respondent Moola Bilkis Second Respondent Moola Bilkis N.O. Third Respondent Moola Khadija Fourth Respondent Moola Khadija N.O. Fifth Respondent

JUDGMENT

MATOJANE J

Introduction

[1] The applicant is a local municipality in whose area of jurisdiction the immovable property known as Erf 534, Georgetown Township,

Germiston (‘the property’) is situated. The first respondent is the registered owner of the property. The second, third, fourth and fifth respondents are cited in their capacity as members the first respondent.

[2] The applicant claims that the respondents are in contravention of s 12 of the National Building Regulations and Building Standards Act 103 of 1977 (the ‘Act’). Section 12 of the Act provides:

12 Demolition or alteration of certain buildings

(1) If the local authority in question is of the opinion that-

(a) any building is dilapidated or in a state of disrepair or shows signs thereof;

(b) any building or the land on which a building was or is being or is to be erected or any earthwork is dangerous or is showing signs of becoming dangerous to life or property,

it may by notice in writing, served by post or delivered, order the owner of such building, land or earthwork, within the period

specified in such notice to demolish such building or to alter or secure it in such manner that it will no longer be dilapidated or in a state of disrepair or show signs thereof or be dangerous or show signs of becoming dangerous to life or property or to alter or secure such land or earthwork in such manner that it will no longer be dangerous or show signs of becoming dangerous to life or property: Provided that if such local authority is of the opinion that the condition of any building, land or earthwork is such that steps should forthwith be taken to protect life or property, it may take such steps without serving or delivering such notice on or to the owner of such building, land or earthwork and may recover the costs of such steps from such owner.

(2) If the condition of any building or the land on which a building was or is being or is to be erected or any earthwork is such that it is dangerous to life or property, the owner of such building, land or earthwork shall forthwith notify the local authority in question thereof.

(3)

(a) If the condition of any building or the land on which a building was or is being or is to be erected or any earthwork is such that it is dangerous or is showing signs of becoming dangerous to life or property, the local authority, irrespective of whether it was notified in terms of subsection (2), may by notice in writing, served by post or delivered, order the owner of such building, land or earthwork to instruct at the cost of such owner an architect or a registered person to investigate such condition and to report to such local authority on the nature and extent of the steps to be taken, in the opinion of such architect or registered person, in order to render such building, land or earthwork safe.

(b) The local authority in question may by notice in writing, served by post or delivered, order that any activities be stopped or prohibit the performance of any activities which may increase the danger or hinder or obstruct the architect or registered person referred to in paragraph (a) from properly carrying out the investigation referred to in that paragraph.

(c) If it is brought to the attention of a local authority or appears that an architect or registered person instructed in terms of paragraph (a) to perform certain duties is for any reason not competent to carry out the duties in question, the local authority

may require such architect or registered person to submit evidence of his or her competence to carry out such duties.

(d) If the architect or registered person contemplated in paragraph (c) is unable to satisfy the local authority of his or her competence to carry out the duties in question, the local authority may order the owner of the building, land or earthwork in question to instruct another architect or registered person to carry out the duties.

(4) If the local authority in question deems it necessary for the safety of any person, it may by notice in writing, served by post or delivered-

(a) order the owner of any building to remove, within the period specified in such notice, all persons occupying or working or being

for any other purpose in such building therefrom, and to take care that any person not authorized by such local authority does not enter such building;

(b) order any person occupying or working or being for any other purpose in any building, to vacate such building immediately or within a period specified in such notice.

(5) No person shall occupy or use or permit the occupation or use of any building in respect of which a notice was served or delivered in terms of this section or steps were taken by the local authority in question in terms of subsection (1), unless such local authority has granted permission in writing that such building may again be occupied or used.

(6) Any person who contravenes or fails to comply with any provision of this section or any notice issued thereunder, shall be guilty of an offence and, in the case of a contravention of the provisions of subsection (5), liable on conviction to a fine not exceeding R100 for each day on which he so contravened.

[3] The grounds upon which the applicant seeks the relief against the respondents are stated as follows in the founding affidavit:

3.1 the building situated on the property is dilapidated;

3.2 the respondents have been warned and are aware that their activities in respect of the property are in breach of the Act;

3.3 the applicant has no other remedy but to approach the Court for the relief sought.

[4] The applicant seeks the following substantive relief against the respondents:

4.1 An order for the the respondents to demolish, alternatively to alter, and further alternatively to secure the property in such manner that it will no longer be dilapidated, alternatively in a state of disrepair, or show signs of, or be dangerous or show signs of becoming dangerous to life or property; or to alter or secure such land or earthwork in such manner that it will no longer be dangerous, or show signs of becoming dangerous, to life or property in line with the provisions of inter alia, s 12 of the Act;

4.2 An order interdicting and prohibiting the respondents from occupying the property alternatively demolition of the above-mentioned

building, which is currently in contravention with the above-mentioned Act until its processes are followed; and

4.3 An order directing the respondents to demolish, alternatively to alter the property at their own cost, within thirty days of the order being granted, failing which the Sheriff or its agents would be authorised to demolish the dilapidated structures on the property.

Factual background

[5] The applicant states that its officials conducted an inspection of the property on 31 August 2016. It states that these officials

established that the property was dilapidated and needed to be renovated. They further concluded that the unsightly state of the

property devalued neighbouring properties.

[6] The applicant addressed a notice of contravention, dated 2 September 2016, to Golden City View Prop Inv Ltd at 261 Victoria Street, Georgetown, Germiston. This notice formally requested the respondents to renovate the property within thirty days to rectify the situation, failing which legal proceedings were to be instituted against the respondents. I must mention that this company is not associated with any of the respondents, and the physical address is not the address of any of the respondents.

[7] The applicant states that on 11 October 2016, a building inspector in its employ conducted a follow-up inspection of the property and found that the property was still in a dilapidated state in contravention of the Act. According to the Inspection Report attached to the founding affidavit, a further s 12(1) notice of contravention was delivered to the property by hand, in terms of which the respondents were again requested to rectify the situation within thirty days, by submitting building plans for the outbuilding and the proper structure that would be consistent with the Act. This notice was not attached to the founding affidavit.

[8] According to the applicant, a further follow-up inspection was conducted on 11 January 2017 and the property was found to still be in the same dilapidated state. On 13 March 2017, the applicant, through its attorneys, addressed a letter of demand to the first respondent, care of the second respondent. The letter informed the second respondent that the applicant deemed the property to be unsightly and dilapidated. The second respondent was called upon to appoint a contractor to renovate the property within thirty days of receipt of the letter of demand, failing which the applicant would institute legal proceedings to compel compliance and have the property forfeit to the applicant.

[9] According to the sheriff's return of service, the letter of demand could not be served on the second respondent as the second respondent had left the given address. The sheriff’s return of service details that Mr M Moola, an occupier of the premises, informed him of this fact.

[10] The applicant states that the letter of demand was also emailed to the email address of one of the residents on the property on 5 September 2017. Also, the applicant’s attorney alleges that he made a follow-up call to ‘Mr Moola’ on his cell phone and demanded that he comply with the letter of demand. He alleges that ‘Mr Moola’ confirmed receipt of the letter of demand and promised to revert with representations on renovation. The applicant did not attach a confirmatory affidavit by the attorney of record to the founding affidavit in relation to these allegations.

The respondents’ opposition to the relief sought

[11] The respondents oppose the application and have raised points in limine, in addition to the defence that they never received the notice of contravention which the applicant purports to have delivered to them. Each of these aspects will be addressed in turn below.

Lack of capacity

[12] The respondent submits that the applicant has failed to attach to the founding affidavit the resolution, from the Municipality, authorising the deponent to depose to the founding affidavit and to institute the application on behalf of the Municipality.

[13] The applicant has since attached to its replying affidavit a memorandum purporting to delegate to the deponent the power institute

legal proceedings and to depose to the affidavits on behalf of the applicant.

Non-compliance with the National Building Regulations and Building Standards Act

[14] In terms of s 12 of the Act, the notice of contravention may be served by post or delivered by hand to the owner of the building that the local authority considers to be dilapidated, dangerous or in a state of disrepair. However, should the local authority be of the opinion that the condition of any ‘building, land or earthwork’ necessitates immediate action to protect life or property, it may do so without delivering or serving the notice on the owner.

[15] The respondents state that no notice of contravention was delivered to them by the applicant. In this regard, they argue that the applicant was statutorily obliged to deliver the s 12 notice, because the applicant did not plead the specific facts which exempt it from delivering or serving the notice on the owner of the building. In other words, the applicant’s case is not based on the property being dangerous to ‘life or property’.

[16] The registered address of the first respondent, as per a CIPC report attached to the founding affidavit, is 49 Tygerberg Place, Lenasia South – yet the letter of demand dated 2 September 2016 was addressed to Golden City View Prop Inv Ltd in Georgetown, Germiston.

[17] In paragraph 11 of the replying affidavit, the applicant maintains that it caused a notice to be served on the property on which an inspection was conducted, namely Golden City Pro Inv Ltd and that the notice reached the attention of the owner thereof. The notice was not sent to the first respondent’s business address, but a different entity, and the applicant cannot demonstrate that it reached the first respondent, or any of the other respondents.

[18] The applicant also fails to attach the notice that is referred to in the Inspection Report, where the building inspector states that she delivered the notice of contravention by hand. The Report fails to set out any further details relating to the alleged delivery of this notice.

[19] The letter of demand by the applicant’s attorneys of the 13 March 2017 was addressed to the first respondent, care of the second respondent. As indicated earlier, the letter could not be delivered as the second respondent had left the given address.

[20] In relation to the purported receipt of the letter of demand, the applicant alleges that the person with whom its attorneys of record spoke to was Mr Moola. The applicant states in the founding affidavit that Mr Moola confirmed receipt of the letter of demand (in spite of the sheriff’s return of service contradicting this assertion) and that Mr Moola promised to revert with representations on renovations, which were never submitted. The respondents deny that such a conversation took place between themselves and the applicant’s attorney of record, and state that the telephone number which was called is not a number which belongs to any of the respondents. In the confirmatory affidavit attached to the replying affidavit, the applicant’s legal representative states that he telephoned Mr Moola in an attempt to avoid legal proceedings.

[21] Attached to the replying affidavit is a ‘final’ letter of demand, dated 6 September 2017, which was sent to Mr Mohamed Moola via email by the applicant’s attorneys of record. This is the first time these documents were attached to the pleadings.

[22] The applicant’s attempt to rely on its interactions with Mr Mohamed Moola is misguided. There appears to be a case of mistaken identity, particularly in light of the fact that the second and fourth respondents are female. Mr Mohamed Moola is not a party to the proceedings. He is not cited as a respondent, and he is not a member of the first respondent, Volatire Investments CC. There is no proof that any of the respondents received the notice of contravention or the letter of demand from the applicant.

Disputes of fact

[23] Paragraph 2 of the Inspection Report states:

‘The nature of the contravention was explained to the owner of the property in the notice and requested to rectify the situation within 30 days in order to submit building plans for the out building and the proper structure, that would be consistent and/or in compliance with the Act.’

[24] The building inspector does not mention the identity of the person to whom the nature of the contravention was explained. The respondents, on the other hand, aver that in October 2016, the property was not occupied. They further state that that property is ‘boarded’ up, and that the building inspector could not have inspected the building as no one could have provided the inspector with access to the property. The property was previously used as a motor dealership and did not have ‘out buildings’ as alleged by the building inspector.

[25] The respondent argues that a number of material allegations were only made in the replying affidavit, and as a result, the respondents were not afforded an opportunity to deal with the allegations.

[26] Applying the Plascon-Evans rule, as it is bound to do when final relief is sought on paper, the court must accept the respondent’s

evidence unless it is palpably far-fetched or untenable. The respondents’ version is not so clearly untenable that the Court

would be justified in rejecting it merely on the papers. I accordingly accept the respondents’ version.

Hearsay

[27] The respondents submitted that the applicant has failed to file confirmatory affidavits from the persons who had made hearsay

averments in the founding affidavit. They argue that no reliance can be placed on the hearsay averments which must be struck from the applicant’s founding affidavit.

[28] The applicant has attached the following documents in its replying affidavit:

28.1 A confirmatory affidavit by the applicant’s building inspector.

28.2 A confirmatory affidavit by a candidate attorney in the employ of the applicant’s attorneys of record, which purportedly confirms that the respondents were aware of their non-compliance with s 12 of the Act.

28.3 A letter of demand dated 6 September 2017 which applicant alleges was sent to the third respondent by email.

28.4 Additional photographs depicting the state of the building.

[29] In motion proceedings, the applicant is required to make its case in the founding affidavit and not in the replying affidavit. However, this rule is not absolute, as the court has the discretion to permit new material in reply.[1] In Shakot Investments (Pty) Ltd v Town Council of the Borough of Stanger,[2] the governing test in deciding whether to allow new matter in reply was set out in the following terms:

‘In consideration of the question whether to permit or to strike out additional facts or grounds for relief raised in the replying

affidavit, a distinction must, necessarily, be drawn between a case in which the new material is first brought to light by the applicant who knew of it at the time when his founding affidavit was prepared and a case in which facts alleged in the respondent's answering affidavit reveal the existence or possible existence of a further ground for the relief sought by the applicant. In the latter type of case the Court would obviously more readily allow an applicant in his replying affidavit to utilise and enlarge upon what has been revealed by the respondent and to set up such additional ground for relief as might arise therefrom.’

[30] In the present matter, the applicant had knowledge of the new material at the time when its founding affidavit was prepared. It seeks to cure the defects in the founding affidavit by attaching the confirmatory affidavits and supporting documents in reply. No particular or exceptional circumstances have been shown to exist for this Court to exercise its discretion to allow such material to remain in the replying affidavit without giving the respondent an opportunity to reply thereto.

[31] In the circumstances, I have to consider the case for the applicant without having regard to the new material raised in the replying affidavit as the respondent was not allowed to deal with the new information contained in the replying affidavits to its prejudice.

Conclusion

[32] Although the applicant maintains that the notice reached the attention of the respondents, it is clear from the founding affidavit that the respondents did not receive notification that the applicant is in contravention of the s 12 of the Act. The applicant has accordingly failed to make a case in terms of which this Court can grant the relief sought.

[33] In light of the above considerations, I am of the view that the applicant’s application stands to fail.

Order

In the premises, the following order is made:

1. The applicant’s application is dismissed.

2. The applicant is to pay the costs of the respondents.

_____________________________

K E MATOJANE

JUDGE OF THE HIGH COURT

Date of hearing:

7 October 2019

Date of judgment:

5 November 2019

Appearances:

Counsel for the Applicant:

B Brammer

Instructing Attorneys:

Nkadimeng Attorneys

Counsel for the Respondents: E Coleman

Instructing Attorneys:

Zaf Khan

[1] In Kleynhans v Van der Westhuizen N.O. 1970 (1) SA 565 (O) at 568E-G De Villiers J stated the following: ‘Normally the Court will not allow an applicant to insert facts in a replying affidavit which should have been in the petition or notice of motion … but may do so in the exercise of its discretion in special circumstances…’

[2] Shakot Investments (Pty) Ltd v Town Council of the Borough of Stanger 1976 (2) SA 701 (D) at 705H-B.