Fono and Another v Port St Johns Municipality (1271/2022) [2024] ZASCA 161 (22 November 2024)

Fono and Another v Port St Johns Municipality (1271/2022) [2024] ZASCA 161 (22 November 2024)

The Supreme Court of Appeal found that the full court erred in its approach to the applicability of the Building Standards Act in the former Transkei, as the responsible Minister was not cited and the issue of constitutionality was not properly ventilated. The municipality failed to promulgate relevant by-laws and was vague regarding the statutory basis for its application. However, the appellant's conduct contravened section 33(1) of SPLUMA, which applies to the property. The court held that SPLUMA grants a broader discretion to courts than the Building Standards Act regarding remedies for unlawful construction. Given the circumstances, including the appellant's bona fide reliance on...

Citation
[2024] ZASCA 161
Parties
Appellant: Luxolo Fono; Appellant: Caguba Tribal Authority; Respondent: Port St Johns Municipality
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 November 2024
Case Number
1271/2022
Procedural Posture
Civil Appeal / Appeal From Full Court Judgment
Outcome
Appeal upheld in part; demolition order set aside; appellant afforded opportunity to comply with SPLUMA; each party to pay own costs.
Judges
Mocumie, Mabindla-Boqwana, Smith, Mjali, Mantame
Legal Topics
Building Regulations, Spatial Planning, Municipal by Laws, Customary Law Vs Municipal Law, Remedial Orders, Demolition Orders
Land and Property Administrative Law Civil Procedure Building Regulations Spatial Planning Municipal by Laws Customary Law Vs Municipal Law Remedial Orders +1 more

Case Brief

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Parties

Luxolo Fono

Appellant

Caguba Tribal Authority

Appellant

Port St Johns Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court Judgment

Legal Issues

  1. 1 Whether the National Building Regulations and Building Standards Act 103 of 1977 applies to property in the former Transkei.
  2. 2 Whether the municipality's by-laws regulate building plans and construction on the property.
  3. 3 Whether the appellant's conduct contravened the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA).

Ratio Decidendi

The Supreme Court of Appeal found that the full court erred in its approach to the applicability of the Building Standards Act in the former Transkei, as the responsible Minister was not cited and the issue of constitutionality was not properly ventilated. The municipality failed to promulgate relevant by-laws and was vague regarding the statutory basis for its application. However, the appellant's conduct contravened section 33(1) of SPLUMA, which applies to the property. The court held that SPLUMA grants a broader discretion to courts than the Building Standards Act regarding remedies for unlawful construction. Given the circumstances, including the appellant's bona fide reliance on...

Court Disposition

Appeal upheld in part; demolition order set aside; appellant afforded opportunity to comply with SPLUMA; each party to pay own costs.

Orders

  • The appeal is upheld in part.
  • The order of the full court is set aside and substituted.