Harrington v Panayodites (A921/2015) [2017] ZAGPPHC 1187 (10 November 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

HIGH

COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Not Reportable

Not of interest to other Judges

CASE NO: A921/2015

In the matter between:

WIILIAM

JACOBUS

HARRINGTON

Appellant

and

CONSTANTINE PANAYODITES Respondent

Heard: 19 April 2017

Delivered: 10 November 2017

Coram: Makgoka, Mabuse and Baqwa JJ Judgment: Makgoka J (Unanimous)

Summary: Section 21 of the National Building Regulations and Building Standards Act 103 of 1977 - whether a municipality which has obtained an order authorizing it to demolish a building erected in contravention of section 4(1) read with section 4(3) of the Act enjoys a discretion whether to demolish the building in accordance with the court order.

ORDER

On appeal from a single judge of this Division (Pretorius J):

1. The order of the court a quo is amended by the addition of the following paragraphs:

' 1. The appellant' s building erected at number [...] L. S., Middle burg, Mpumalanga is to be demolished pursuant to an order of the Middelburg magistrate court on I August 2008, after a suitably qualified engineer has certified that the demolition of the building will not compromise the structural integrity and safety of the adjacent buildings;

2. The municipality shall within 15 days of this order request the Chief Executive Officer of the Engineering Council of South Africa to furnish it with three names of engineers, from which it shall select one for the purpose of the certificate referred to in paragraph I above;

3. The costs of the engineer referred to above shall be borne by the appellant;

4. Should the municipality fail to act in terms of paragraph 2 within the stipulated time period, the respondent is authorised to so act, and may recover the costs for doing so, from the appellant.'

5. Save to the extent set out above the appeal is dismissed with costs, including costs attendant upon the employment of two counsel.

JUDGMENT

MAKGOKAJ

Introduction

[1] The issue in this appeal is whether a municipality which has obtained an order authorizing it to demolish a building erected

in contravention of s 4(1) read withs 4(3) of the National Building Regulations and Building Standards Act 103 of 1977 (the Act) enjoys a discretion whether to demolish the building in accordance with the court order. Before us, Mr Raath SC with Mr Groenewald, appeared for the appellant, while Mr Swart SC with Mr Avvakoumides appeared for the respondent.

[2] The appeal, with leave of the Supreme Court of Appeal, concerns a hotel in Middelburg, Mpumalanga Province. The hotel, which it is common cause has been erected illegally, without any approved building plans as required by s 4(1) of Act,[1] belongs to the appellant, Mr William Jacobus Harrington. The respondent, Mr Constantine Panayodites (Mr Panayodites) owns a property adjacent to Mr Harrington's hotel. Mr Panayodites' locus standi was initially challenged in the court a quo, but was abandoned, wisely, in my view, given the clear authorities on this.[2]

[3] The municipality, under whose jurisdiction Middelburg falls, applied for

and was granted a demolition order in respect of the hotel by the magistrate court, Middelburg on 1 August 2008. That order provided

for a period of three months during which Mr Harrington had to obtain the necessary approval for the building. That period went without such approval, yet the municipality did not demolish the building. As a result, Mr Panayodites obtained an order in this court compelling the municipality to demolish the building in accordance with the magistrate' s court order. It is that order which Mr Harrington appeals against.

The background facts

[4] The dispute dates back to February 2008 when Mr Harrington, without municipal approval, commenced building works for the erection of a hotel on his property. On 21 February 2008 Mr Harrington submitted to the municipality for approval, building plans for the erection of the hotel. On 28 February 2008 the municipality served on Harrington, a notice in terms of s 4(1) of the National Building Regulations and Building Standards Act 103 of 1977 (the Act) ordering him to immediately stop the building works and to submit to the municipality a plan for approval. Despite the fact that no building plans had been approved, and that he had been requested to cease with the works until the plans had been approved, Mr Harrington continued with the building works, nevertheless.

[5] On 4 March 2008 the plans were rejected by the municipality. The reasons furnished for the rejection were that: the proposed building must be designed by a professional architect, as the architectural area of the building covered an area exceeding 500 square metres; the proposed building was classified as a 'residential' building (hotel) and had to comply with building lines applicable to a residential building; and the parking layout was not in accordance with standard requirements. The municipality advised Mr Harrington to resubmit the revised building plans compiled by an architect. There were also two other requirements he had to comply with. First, he had to submit, with the revised plans, an engineer certificate for the foundation and concrete slab, and second, an application had be lodged with the South African Heritage Resources Agency for approval of the demolition and convention of the building adjacent to Laver Street.

The proceedings in the magistrate 's court

[6] On the same day of the rejection of the plans, 4 March 2008, the municipality approached the Middelburg magistrate court (the

magistrate court) on an ex parte basis seeking an order interdicting Mr Harrington from conducting any further works on the property and authorizing the sheriff or the municipality to demolish the building illegally erected on the property, should Mr Harrington fail to submit building plans for approval as required by s 4 of the Act.

[7] The municipality acted in terms of s 21 of the Act, which reads as follows:

'Order in respect of erection and demolition of buildings

Notwithstanding anything to the contrary contained in any law relating to magistrates' courts, 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 authorising 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 authorisation granted thereunder .'

[8] The ex parte application and the rule nisi were served on Mr Harrington on 5 March 2008. On 10 March 2008 Harrington filed an answering affidavit, including a notice anticipating the return date of the rule nisi to 20 March 2008. Harrington simultaneously filed a counter-application, in terms of which he sought an order compelling the municipality to approve the building plans he had submitted to it. On the anticipated return date, 20 March 2008, there was no appearance on behalf of municipality. The rule nisi was discharged, and the application was postponed to 28 March 2008. It is not clear from the papers as to what happened on the occasion to which the matter was postponed.

[9] Meanwhile, on 26 March 2008, in response to a site development plan submitted by a firm of architects on behalf of Mr Harrington pursuant to the municipality's requirements dated 4 March 2008, and essentially for the same reasons it had furnished in its letter of 4 March 2008, rejected the site plan. In the penultimate paragraph of its letter, the municipality advised the architects to prevail upon Mr Harrington not to proceed with any building works without prior approval of the municipality. Despite this, Mr Harrington proceeded with the building works, which were completed by July 2008.

[10] On l August 2008 the magistrate court granted an order in favour of the municipality against Mr Harrington, in the following terms:

1. The respondent [Mr Harington] is prohibited from proceeding with the creation (as defined in section 1 o f the Nation a l Building Regulations and Building Standard Act, 1977 (Act No. 10 3 o f 1977 )) of any building in the property situated at [...] L. S., Middleburg, Mpumalanga, without the prior approval of the applicant [the municipality];

2. The applicant [the municipality] is authorize d in terms of section 21 of the National Building Regulation s and Building Standard Act, 1977 (Act No. 103 of 1977 ) to demo lish the building of the property situated at [...] L. S., Middelburg, Mpumalanga which is erected contrary to or does not comply with the provision s of the aforementioned Act, should the respondent [Mr Harrington] fail to obtain the approval of the applicant [the municipality] within a period of 3 (three) month s from date of this order . '

The aftermath of the demolition order

[11] As already stated , by the time the magistrate court delivered its judgment on I August 2008, Mr Harrington had proceeded with building works and had completed the building. Pursuant to the granting of the order on 1 August 2008, Mr Harrington submitted a new application for the approval of the building with a revised plan, this time properly drafted by an architect. The revised building plan was submitted on 6 October 2008.

[12] In a letter dated 28 February 2009 the town planning services department of the municipality nevertheless rejected the building plans because the building lines were exceeded; not sufficient parking facilities had been provided for and a demolishing permit issued by the South African Heritage Resources Agency[3] (SAHRA) had not been to be obtained. In that letter the architect who submitted the plan on behalf of the fourth respondent was informed that the building plan had to be amended to comply with the mentioned conditions.

[13] On 28 May 2010 the municipality's attorneys wrote to Mr Panayodites' attorneys noting that since the order was made, there had been ' protracted negotiations' between the municipality and Mr Harrington, which had eventually culminated in the municipality not approving Mr Harrington's building plans at the end of April 2010.

[14] Mr Harrington applied for the reduction of the building lines and the sale of municipal land for parking

purposes. The council of the municipality considered that application at its meeting in July 2010 and resolved not to approve the reduction and sale application and consequently also not the building plans for the erection of the hotel. In a letter dated 28 July 2010 the municipality informed Mr Harrington of that decision and required him to comply with its town planning requirements and the Act, within 30 days from the date of the letter (28

July 2010). Mr Harrington did not comply with the time period prescribed by the municipality in its letter of 28 July 2010.

[15] Tt is important to note the municipal manager's observations during the discussion that preceded the decision to reject the application.

'In my opinion the se building plans should not be approve. As matters stand at the moment the building has been erected over. the building lines, insufficient parking has been provided on the premises. As mentioned in the report the owner was given notice s to stop illegal building activities o n the property. Irrespective thereof he continued with the completion of a building which is to be use d for a purpose which is not in accordance with the provisions of the town planning scheme.

If the mayoral committee merely approves the mere reduction of the reduction of the building lines and the sale of municipal land for parking purposes to rectify an illegal situation it will send out a message to other developers that the council is either unable or unwilling to enforce the provisions of the town planning scheme which would make it impossible for council to properly manage land uses as a constitutional mandate. '

[16] To summarise on the outstanding approval requirements, they are the following: the building lines have exceeded the municipality ' s measurements; the inadequacy of the parking space; and the absence of a permit from the Heritage Resource Agency for the demolition of the old building. As to the parking requirements, the municipality needed 26 parking bays to be provided. In terms of Mr Harrington' s plans, only 18 accessible parking bays are provided for, 8 short of the municipality's requirements. To meet the first two requirements, Mr Harrington submitted a formal application to purchase and permanently close a portion of Laver Street. This was during August 2012.That proposal served before the council of the municipality on 21 August 2012 where it was resolved that Mr Harrington should, at his cost, procure and submit a traffic impact report by a traffic engineer for consideration by the council. That decision was communicated to Mr Harrington' s agents on 5 September 2012. I shall revert to that report later in the judgment.

In the court a quo

[17] On 26 November 2012 Mr Panayodites launched an application seeking a declaratory order that Mr Harrington had failed to obtain the

approval of the municipality within a period of three months referred to in the magistrate court's order of l August 2008; and for an order compelling the municipality to demolish the building, and ancillary relief. Although a number of respondents[4] were joined in that application, only the municipality (cited as the second respondent) and Mr Harrington (cited as the fourth respondent)

opposed the application. In this appeal, the municipality does not take any part, despite opposing the application in the court a quo.

[18] The relief sought by Mr Panayodites was simple. The period of three month s referred to in the magistrate's court order having lapsed without Mr Harrington ' s building plans having been approved, the municipality was obliged to demolish the building. In its opposition, the municipality explained that the reason why it had not demolished the building was that Mr Harrington 'did submit an application for approval of the building plans within the three month period ' stipulated in the court order, but which could not be approved due to certain town­ planning deficiencies.

[19] But, explained the municipality, new plans submitted by architects on behalf of Mr Harrington were acceptable and adequate, and that outstanding issues with regard to the demolition of an adjacent building to be approved by the SAHRA, were expected to be resolved ' soon' , thus paving the way for the required approval. It cannot escape notice that the stance adopted by the municipality in the court a quo is in stark contrast to the one it adopted in the magistrate's court. It seems to have changed again in the appeal, with the municipality not joining Mr Harrington in the appeal. This vacillation by the municipality, while glaring, is not properly explained on the papers. But, it seems that the explanation lies in the fact that there was a change in the political personnel at the helm of the municipality.

[20] The application served before the court a quo (Pretorius J) on 2 June 2015.

In a judgment handed down on 25 July 2015, Mr Panayodites' contention found favour with the court a quo, which granted an order compelling the municipality to give effect to the magistrate' s court order by demolishing the building within a period of one month of the granting of the order, failing which the sheriff was authorised to ' take the necessary steps necessary to give effect' to the order. The court a quo also made a punitive costs order on an attorney-and-client scale against the municipality and Mr Harrington, jointly and severally.

[21] The court a quo proceeded from the premise that the municipality was bound to give effect to the order granted by the magistrate court. The order allowed the municipality no discretion to rectify matters beyond the three months' period referred to in it. In deciding that the municipality had no discretion (beyond the three months period set out in the magistrate's court order) but to demolish the building, the court a quo relied on Lester[5] and United TechnicalEquipment.[6] It thus concluded that the law cannot countenance the on-going illegality of Mr Harrington. To do so, it said, would subvert the doctrine of legality and undermine the rule of law. Mr Harrington is aggrieved by this conclusion, and holds a view that the municipality does have a discretion.

In this court

[22] The following issues arose before us:

(a) Application by Mr Harrington for the admission of new evidence;

(b) The import of Lester and United Technical Equipment;

(c) The concession on behalf of Mr Harrington regarding the municipality's discretion;

(d)The parties' respective arguments on the conclusion of the court a quo;

(e) The nature and reach of a s 21 order;

(f) Section 21 in the context of the rule of law;

(g) The conclusion if the municipality has a discretion.

[23] I consider these, in turn.

Application for the admission of new evidence on appeal

[24] At the commencement of the hearing of the appeal, an application was moved on behalf of Mr Harrington

for the admission of further evidence onapp eal. According to Mr Harrington, the purpose of the evidence was to bring to the notice of the court what transpired in respect of his efforts to have his building plans approved, after the judgment a quo was delivered. The application was not opposed by Mr Panayodites . We granted the application. I shall deal with the new evidence and its relevance, later.

[25] The court a quo placed much reliance in its judgment on Lester and United Technical Equipment. For that reason, it is important to understand the import of those judgments. At the very outset, it must be emphasised that Lester v Ndlambe is distinguishable from the present case in one major respect. There, the issue was whether a court hearing an application in terms of s 21 of the Act, had any discretion not to order the complete demolition of a building where the jurisdictional fact, namely that the building was illegally erected, was established. The Supreme Court of Appeal concluded that the court has no such discretion, as, according to the court, the law cannot countenance an on-going illegality.[7] In the present case, the issue is different. The court has already granted the demolition order at the instance of the municipality. The issue is whether the municipality which has obtained such an order has a discretion not to demolish an illegally erected building. Therefore, Lester has no direct bearing on the issue to be decided in this appeal.

[26] In United Technical Equipment the municipality had obtained an interdict against the appellant to prevent the use of a residential property as offices in contravention of the town planning scheme. Thereafter, the appellant had sought to suspend the operation of the interdict pending an application to re-zone the property so as to allow its use as offices. The Full Court held that it had no general discretion to suspend the operation of an interdict against illegal land use where the wrong complained of amounted to a crime. The court pointed out that a suspension or postponement of the interdict would amount to the condonation of criminal behaviour as the court would thereby be abrogating its duty as an enforcer of the law.

'Concession' by Mr Panayotides on the discretion of the municipality

[27] Both in their written and oral submissions before us, counsel for Mr Panayodites expressly disavowed any reliance on the argument that a municipality at whose instance a demolition order had been granted has no discretion but to execute it. Instead, it was submitted that whether the municipality which fails to execute a demolition order obtained by it acts in breach of its statutory duty, is a ' question of fact' . Applying the principle to the present case, counsel submitted that Mr Harrington had, pursuant to the demolition order, submitted two further applications for approval which were both rejected and that a period of 9 years has elapsed since the granting of the order.

[28] Under these circumstances, the failure of the municipality to execute the demolition order constitutes a contravention of its statutory and moral duty in terms of the Act. This was .so, it was submitted on behalf of Mr Panayodites, because the municipality is condoning an on-going illegality, under circumstances where it appears that Mr Harrington is unable to meet the requirements for the granting of the approval of his building plans. Reliance was placed on United Technical Equipment in this regard. Based on the facts of the case, it was submitted, Mr Panayodites was entitled to the mandamus sought by him in the main application.

[29] Is the concession by Mr Harrington's counsel binding on this court? This being a legal issue, rather than a factual one, is a matter of legal policy. The parties ' common view is therefore not binding on the court. The court must still carefully evaluate that view to ensure that it is sound in law. As explained by Ngcobo J in Matatiele:[8]

'Here. we are concerned with a legal concession. It is trite law that this Court is not bound by a legal concession if it considers the concession to be wrong in law....[T]his Court firmly rejected the proposition that it is bound by an incorrect legal concession, holding that, ' if that concession was wrong in law [it], would have no hesitation whatsoever in rejecting it'. Were it to be otherwise, this could lead to an intolerable situation where this Court would be bound by a mis take of law on the part of a litigant. The result would be the certification of law or conduct as consistent with the Constitution when the law or conduct, in fact, it is inconsistent with the Constitution. ' [9]

[30] Also, the court is entitled to deal with the real issue of law arising from the papers, irrespective of how the parties might have formulated the issue for determination. In Paddock Motors[10] the point was stated thus:

·1f e.g. the parties were to overlook a question of law arising from the facts agreed upon, a question fundamental to the issues they have discerned and stated, the Court could hardly be bound to ignore the fundamental problem and only decide the secondary and dependent issues actually mentioned in the special case. This would be a fruitless exercise, divorced from reality, and may lead to a wrong decision. '[11]

The parties' arguments on the conclusion reached by the court a quo

[31] One must first determine what the court a quo's ratio was. Counsel for Mr Harrington submitted that, read in its proper context, the judgment of the court a quo did not find that a municipality which has obtained a demolition order is obliged to execute it, but had decided the matter on the facts of the case. I disagree. The judgment bears clear indications that the learned judge was of the view that there is no discretion on the part of such municipality. I refer to two passages from the judgment to illustrate the point. In para 24 of the judgment, the court a quo expressly rejected the submission on behalf of Mr Harrington that the municipality enjoyed a discretion. It stated that ' [t]here can be no doubt that the [municipality] has no discretion and has failed to obey a valid court order and have been doing so for the last 7 years'. Further, in para 35:

'The second respondent [the municipality] has been in gross dereliction of its duties by not giving effect to the order granted in 2008 and has gone so far to join forces with the fourth respondent [Mr Harrington]. The only inference the court can draw from the [municipality' s] actions is that [it] is under the impression that it has a discretion to ignore the court order which it has obtained or that it is entitled to interpret it in the manner it sees fit. [The municipality] has clearly been acting in dereliction of its statutory duties and has aided and abetted the fourth respondent [Mr Harrington] to continually commit a crime and to subvert the rule of law.'

[32] The above remarks by the court a quo received pointed criticism by counsel on behalf of Mr Harrington. It was submitted that the court a quo was wrong to conclude that the municipality was bound to the demolition order, and had no discretion. According to counsel for Mr Harrington, the municipality was not so bound, and enjoyed a discretion whether to act in accordance with the authorization which it had procured through the demolition order. In the present case, the municipality exercised that discretion in a way to try and remedy the technical deficiencies and thereby retain ' an otherwise beneficial development to the area' .

[33] It was further submitted that the exigencies of the case would require the municipality to act differently where it considers the development to be beneficial barring only some deficiencies which need to be attended to. In such a case the municipality was entitled to allow the builder to take steps which could lead to the approval of the building plans, and thereby termination of the offence committed. In sum, the submission was that the municipality was correct to allow Mr Harrington the opportunity to comply with the necessary technical requirements for the approval of the building plans, based on the discretion the municipality is said to enjoy.

[34] Counsel for Mr Harrington further submitted that whilst Mr Panayodites had succeeded in the court a quo on the basis that the municipality had no such disc retion, and had to demolish the building, and that having been proven wrong, it is not now open for Mr Panayodites, on appeal, to contend for another basis, namely that the facts of the case, in particular, the length of time it has taken during which Mr Harrington has failed to comply with the municipality' s requirements, has to be taken into consideration . This ' new approach', argued counsel , constitutes a concession that the court a quo was wrong in its conclusion that the municipality had no discretion.

[35] The discretion of the municipality , contended counsel, lies in the fact that the Act itself compels an outcome within a specific period of time on each occasion when an application is made for approval, meaning it is not a continuing process. The owner applying for approval has to repeat his attempts, each time in an attempt to meet the municipality's requirements. It was argued that it is here where the discretion of the municipality applies: it falls within its executive powers to decide whether or not the end of the road has been reached and the building is to be demolished. According to counsel, this is what occurred in Lester and United Technical Equipment. Seeking to distinguish the two cases referred to above, counsel argued that the court a quo failed to appreciate the fact that both cases concerned the discretion of the court and not that of the municipality .

[36] From the above submissions, it is clear that the parties' counsel are agreed that a municipality armed with a demolition order is not bound to implement it. Where the parties part ways, is whether in the circumstances of the case, the municipality breached its statutory duty by not demolishing Mr Harrington's illegally erected building. On Mr Panayodites' argument, the circumstances of the case, including the nine-year period which has elapsed since the order was granted. establish the municipality has breached its duty. On the other hand, the municipality has properly exercised its discretion by not demolishing the building.

The nature and reach of an order in terms of s 21

[37] To properly locate these arguments, and to determine whether a municipality which has obtained an order in terms of s 21 has the discretion whether to execute it, the nature and reach of that section should be explored. The summary of the argument advanced on behalf of Mr Harrington is this. An order obtained by a municipality in terms of s 21 of the Act is merely ' an authorization ' and not a binding order on the municipality to implement it. A municipality which has obtained such an order thus has a discretion whether to demolish an illegally erected building until it has decided that there was no possibility that the illegality could be rectified. Counsel obviously considers the use of the word ' authorize' in the section, for this interpretation.

[38] In my view, that is of no moment. It is simply indicative of no more than that, when the municipality approaches the court in terms of s 21 of the Act, such a municipality would have -decided that the building has to be demolished. Because it has to find some legal basis to do so, it approaches the court to obtain authority to demolish the building. It should be asked why a municipality would obtain a demolition order if it has no intention of executing it. In fact, it is difficult to imagine a municipality approaching the court without having formed an intention to demolish an illegally erected building, as demolition is the primary remedy provided in the section.

[39] As a matter of public policy and principle, I find it difficult to accept an interpretation of the section which would result in giving a discretion to a municipality whether a court order, which it obtained as a result of an illegality and a criminal conduct, should be executed upon. Such a decision can only be sanctioned by a court, lest the execution of a court order be left to the whims of the municipality. As is apparent in the present case, the contradictory stance adopted by the municipality (in obtaining an order and actively working against its enforcement) was a result of change in the political leadership in the municipality. Needless to say, the execution of a court order cannot tenably be dependent on such fluid factors and infinite variables as to who is in charge, and their subjective views of the matter. It must be principled, based objectively on cogent considerations. That can only be achieved through a judicial process.

[40] It is here that I find the ratio in Lester of particular relevance. As earlier stated, it was there concluded that a court does not have a discretion but to grant a demolition order once a building is found to have been illegally erected. If a court does not have a discretion but to grant the order, it is untenable that a municipality, after obtaining such order can thereafter have a discretion whether to execute it. As observed in BSM v Readam para 27, the purpose of s 21 is to ensure judicial oversight. It would therefore be incongruous for that judicial oversight to be by-passed by a municipality.

[41] Properly construed therefore, an order granted by a court in terms of s 21 of the Act has the force and consequence of any other court order. By parity of reason, the default position is that it must be executed upon, unless in exceptional circumstances, its execution would result in an injustice, unnecessary hardship or absurdity. It is undesirable, and indeed unwise, to formulate a list of what such special circumstances would be. Each case would depend entirely on its own facts. And, where such circumstances are said to be present, it must be the court which sanctions the suspension of the operation of its order.

[42] At the risk of repetition, whether the order is executed upon, cannot be left to the whims of a municipality, which may be open to abuse. In other words, a municipality must approach a court if it does not intend to forthwith execute the order. and set out facts and exceptional circumstances which render the execution of the order undesirable. Of course in extreme cases where the outstanding requirements are minimal and are capable of compliance within the shortest possibl e time , it would not be sensible to approach the court. The non-compliance with the law in this regard can be excused on the basis of the de minis non curat lex[12] principle.

[43] Thus, if the municipality in the present case was of the view that there was such a possibility, but foresaw that such approval would occur outside the three months window period provided in the demolition order, it should have approached the court for the

extension of that period. It did not. Instead, it resorted to an impermissible suspension of the operation of the order, and a

perpetuation of an illegality. That is what the appellants sought to do in United Technical Equipment. Of significance is the following reasoning by the court at 348C:

' The respondent [the municipality] has not only a statutory duty but also a moral duty to uphold the law and to see to due compliance with its town planning scheme. It would in general be wrong to whittle away the obligation of the municipality as a public authority to uphold the law. A lenient approach could be an open invitation to member s of the public to follow the course adopted by the appellant, namely to use land illegally with a hope that the use will be legalised in due course and that pending finalisation the illegal use will be protected indirectly by the suspension of an interdict. ' [13]

The reasoning in United Technical Equipment has been followed in a number of cases.[14]

[44] Whether an application for the extension of the period would have succeeded, in the light of United Technical Equipment v Johannesburg City Council, is a different consideration altogether. If it would not succeed, it would merely be confirmation that the municipality has no discretion and was obliged to execute the demolition order. But it was simply not open to the municipality to conduct itself as if the court order did not exist. That deserves censure. The duty of the government (including the local government, I presume) to observe the law was explained by the Constitutional Court in Mohamed:[15]

'[S] outh Africa is a young democracy still finding it s way to full compliance with the value s and ideals enshrined in the Constitution. It is therefore important that the State lea d by example. T his principle cannot be put better that in the celebrated words of Justice Brandeis. In Olmstead et al v United States:

'In a government of laws, existence of the government will be imperilled if it fail s to observe the law scrupulously....Government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example.. ..If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a la w unto himself; it invites anarchy.'[16]

[45] In Emdumeni[17] the Supreme Court of Appeal recognised, among other factors, the need for sensible interpretation of documents (including statutes) and explained that a sensible meaning is to be preferred to one that leads to insensible or unbusiness like results or undermines the purpose of the document. In my view, the interpretation of s 21 contended for on behalf of Mr Harrington would defeat and emasculate the very purpose of the section, namely to curb an illegality and criminal conduct.

[46] Apart from an interpretational point of view, there is a more compelling reason for that conclusion - the rule of law. Here, it is to be borne in mind that the prerequisite for the granting of an order in terms of s 21 of the Act, it must perforce, find both illegality and criminality, in that a building had been illegally erected in contravention of s 4(1) of the Act, which conduct

constitutes a criminal offence in terms of s 4(4) of the Act. Failure to execute an order obtained under such circumstances would mean that the municipality condones the very illegality and criminality it had sought to curb by obtaining a demolition order.

Readam

[47] The facts in this appeal bear some similarities to those in Readam.[18] There, the Supreme Court of Appeal had earlier, in BSM International , issued an order for partial demolition of a building erected pursuant to an unlawful authorization of building plans by municipality. Like the municipality in this case, the respondent in Readarn made no effort to comply with the court order for demolition.

[48] The party at whose instance the order of demolition was granted, Readam, brought an application for committal of the respondents for contempt of court. Apart from considering whether such conduct constituted contempt of court, the court identified two wider

questions emanating from the conduct by the respondents to ' get things corrected'. First, whether the order of the SCA allowed for such a course of conduct. Second, whether as a matter of principle and public policy, a litigant can be allowed to unilaterally choose not to comply with an order of court, thereby effectively achieving the objective of the unlawful enterprise by way of a fait accompli.

[49] In answering these questions, and considering the respondents' explanations for not demolishing the building (similar to those of the municipality in the present case) Sutherland J aptly remarked:

·The true gravamen of the excuse offered by BSB for non-compliance is the assertion that it was proper to deliberately not comply because it was envisaged that through the consolidation of the erven and a re-zoning application, what has been unlawful since 2013 shall enjoy the prospect of ' becoming lawful' ex post facto. In other words, since the order, BSB has been busy devising a strategy, which it expects will render the SCA order moot and legitimise its unlawful enterprise. The pith of the explanation, then, is that BSB and Slim want to be excused from compliance on the basis that they can bring their unlawful conduct into line with new regulations. I shall return to this point to address why it is inappropriate in principle. However , even on the facts the explanation is wanting. The unlawfully erected building remains a violation of the law. Even if it were to be assumed that the re-zoning application is to run its course the unlawfulness continues until these occurrences take place. The strategy pursued by [the respondents] is inconsistent with any fair meaning to be attributed to the SCA order. Properly interpreted, a demolition must occur, not may occur... The order cannot be read to mean that it is open to BSB to take steps that exclude a demolition. The SCA order is not an injunction to engage in a process of obtaining authorisations, permissions and consents to keep a building which was an unlawful enterprise from the very inception of the project.' [19]

[50] In my view, the municipality in the present case, is in a similar position to the respondents in Readam, and the observations made by Sutherland J are apposite. The only difference between the two cases is that it was not the municipality which had obtained the order. In my view, this makes no difference to the basic principle enunciated in that case, namely that there is a duty on litigants to execute court orders. That duty is even much pronounced in the present case than in Readam because here the order was obtained by a municipality as a public remedy against a criminal conduct.

[51] The sum total of all the above is the following conclusion. A municipality which has obtained an order in terms of s 21 of the Act has no discretion but to effect the order by demolishing an illegally erected building, unless such a municipality satisfies a court that exceptional circumstances exist which militate against the demolition and suspends the execution of the demolition order. Absent such judicial intervention, such a municipality must demolish the building. Thus, the court a quo cannot be faulted in its conclusion to this effect, and the concession on this point on behalf of Mr Panayodites was erroneously made.

[52] Like the respondents in Readam it was not open to the municipality, without resort to judicial process, to decide that it would not give effect to the court order, but engage in a parallel process aimed at assisting Mr Harrington to rectify the deficiencies in his building plans with the hope that they would, ex post facto, be approved. The unlawfully erected hotel remains a violation of the law. As emphasised in Readam such conduct can hardly be countenanced by a court, as to do so ' will make a mockery of ordered town planning and by extension the law.' [20]

The alternative basis

[53] However, even if the conclusion on the nature of the s 21 order is wrong, and it be that the municipality enjoys a discretion, it goes without saying that such a discretion should be exercised properly. In the present case, as I will demonstrate below, the municipality has not properly exercised that discretion. Not only on the basis of the time lapse since the demolition order was granted, but on the specific facts of the case.

[54] The municipality's reasons for not effecting the demolition as per the court order can be distilled from the answering affidavit filed on its behalf in the court a quo. Essentially, five reasons were proffered. It says that: but for the deficiencies already pointed out, the building plans would have been approved; the re-submitted plans were acceptable and suitable in terms of the National Building Regulations; the completed building has improved the appearance of the area; a lot of money had been spent on the erection of the hotel and Mr Harrington had ' engaged ' the municipality regarding the outstanding requirements and the municipality expected those issues be resolved soon, paving the way for the approval of the building plans. However, the municipality does not explain why, if the re-submitted plans are acceptable, they have not been approved, yet. The municipality engages in circular reasoning by saying that but for the deficiencies pointed out, the plans would have been approved. Of course the reason for the non-approval is the very existence of the deficiencies.

[55] But, in any event, the municipality 's reasons do not bear scrutiny when considered in the light of the facts of the case. I recap the facts. The demolition order ,vas granted on I August 2008, with a window period of three months for Mr Harrington to obtain approval of his plans. He submitted his revised building plans on 6 October 2008, which were rejected on 28 February 2009 because: the building lines were exceeded; not sufficient parking facilities had been for and a demolition permit had not been obtained from SAHRA. Thereafter, for a period of 19 months (over a year and 6 months) , the municipality did nothing to execute the order. The next reported activity is in July 2010, when Mr Harrington applied for the reduction of the building lines and the sale of municipal land for parking purposes. There is no explanation of any nature whatsoever, why the demolition order was not executed upon during that period of 19 months.

[56] Mr Harrington's application referred to above, was rejected. The letter informing him of that decision is dated 28 July 2010. Again, the municipality did nothing, this time for a further two years, until August 2012 when Mr Harrington submitted an applicationto the municipality to purchase , and permanently close, a portion of Laver Street to enable him to comply with the parking and line

requirements. The municipality sought to explain its inactivity during this period with a broad statement that after the rejection, ' [t]here followed a number of meetings and negotiations to attempt to resolve the matter. ' This is meaningless if no details are furnished. Apart from that, it points to something else: the very fact that after that long there has not been a resolution is a pointer that Mr Harringtons compliance issues are insurmountable. Anyway, the municipality requested Mr

Harrington to submit a traffic impact study. He did so, apparently in January 2013, after the application had been launched in November 2012.

[57] Earlier I mentioned the granting of leave to Mr Harrington to adduce new evidence. The upshot of that evidence is that after the judgment of the court a quo was handed down, he continued to liaise with the municipality in order to rectify the deficiencies in his application for approval of his building plans. That liaison, which commenced in November 2015, culminated in a letter by the municipality's attorneys on 6 February 2017, in which Mr Harrington was informed that in order for his building plans to be considered, he had to comply with the municipality's town planning scheme's building line and parking requirements , as well as approval by the SARRA for demolition of an old building.

[58] Properly viewed, this letter is nothing more than a re-iteration of the municipality's decisions communicated to Mr Harrington on 28 February 2009 and 28 July 2010, more fully referred to in paras [12] and [14] above, respectively. This appears to be the last word of the municipality on the matter. The fact that the municipality does not mention anything about the traffic impact study as of 6 February 2017, can only mean that the report has not altered its requirements set out in its letter of 28 February 2009, reiterated in its letter of 28 July 2010.

[59] I am fortified in this conclusion by the following. The answering affidavit on behalf of the municipality was deposed to on 27 February 2013. Nothing was said about the traffic impact report. The answering affidavit of Mr Harrington was deposed to on 1 March 2013, in which he mentions that he had just received the report, which suggests that the municipality had not yet considered it and decided on its contents when the answering affidavits were prepared.

[60] One assumes, however, that when the matter came before the court a quo, over two years later (June 2015) the municipality would have considered the report and taken a decision on it. It seems that the possible relevance of this report was a subject of discussion at the hearing in the court a quo. Apparently, it was enquired of Mr Harrington's counsel whether Mr Harrington was seeking a postponement

of the application in order to obtain the reaction of the municipality to the report, to which counsel answered in the negative.

[61] My view is that if the traffic impact report was that important to his case, Mr Harrington would have welcomed the opportunity to place it before court. He elected not to. The irresistible inference to be drawn from that is that he knew that the municipality had considered the report but has not acceded to his proposal to close Laver street. This would mean that the municipality had not altered its approval requirements of February 2009, reiterated in July 2010. That explains why those requirements were again reiterated on 6 February 2017.

[62] These are substantive requirements, and cannot simply be reduced to minor deficiencies' as the argument on behalf of Mr Harrington seeks to. Parking, for example, is a major consideration for an establishment like a hotel, and cannot be explained away as a minor deficiency. In BSM v Readam, one of the requirements which led to the order for partial demolition was inadequate parking space. But even if this requirement

can somehow be overcome, there remains the SAHRA permit requirement, about which Mr Harrington has not said a word.

[63] What is more, Mr Harrington does not contend that these requirements are onerous, unreasonable or invalid in any manner, hence he has not sought to challenge their validity, nor has he exercised his right of appeal against the reasons for the rejection of his building plans. It should therefore be accepted that despite its efforts to accommodate Mr Harrington, his illegality cannot be rectified.

[64] That should be the end of the road for the municipality in its endeavours to come to Mr Harrington's assistance. What else is there to do, it might be asked rhetorically? Nothing, it seems. I am quite aware of the drastic nature of a demolition order, and ordinarily one would incline to the view that all avenues and possible remedies should be explored to avert demolition. But in the present case, I can think of no other remedy. Is the demolition a disproportionate measure, given that the building has been completed? I do not think so, given the facts of the matter, especially the background facts which gave rise to the demolition order.

[65] To recap, here are those facts. In February 2008 Mr Harrington, without having submitted building plans to the municipality,

commenced with his illegal and criminal conduct. He submitted his plans on 21 February 2008. On 28 February 2008 he was served with a notice in terms of s 4(1) of the Act ordering him to immediately cease his illegal and criminal conduct. He simply ignored the notice and defiantly proceeded with his illegal and criminal conduct.

[66] On 4 March 2008 his building plans were rejected by the municipality. On the same day the municipality obtained a rule nisi restraining Mr Harrington from conducting any further works. Despite the rule nisi having been served on him on 5 March 2008, he disdainfully proceeded with the building works to completion. By 1 August 2008 when the demolition order was granted, the illegal building works had been completed. From these facts, it is clear that at all relevant times, Mr Ha1Tington knew that his conduct was illegal. His violation of the law was deliberate and flagrant. And, despite pending litigation regarding the building works, he proceeded with his illegal conduct, such that when the magistrate court handed down its judgment on 1 August 2008, the building had been completed. He has thus been contemptuous in his criminal conduct throughout the process.

The municipality's stance therefore amounted to an extension of Mr Harrington' s criminal conduct.

[67] If the outcome of the litigation which followed his conduct be that his illegally erected building is to be demolished, he would only have himself to blame. He has obviously invested a lot of money into the project. But, despite being warned by the municipality very early to cease with his illegal conduct, he flippantly cocked a snook at the municipality ' s warnings. Similar conduct by the appellant in BSM International was frowned upon by the Supreme Court of Appeal:

' What tips the scales against BSB is that it was warned that it was acting illegally and in spite of such warning, it deliberately

persisted. If anything, it engaged in obfuscatory behaviour to delay finalisation of this litigation whilst pressing ahead with its illegal conduct. Such conduct can hardly be countenanced by a court. To do so will make a mockery of ordered town planning and by extension the law. The order granted by the court a quo which directed that the property be demolished to the extent necessary to ensure compliance with the scheme, can accordingly not be faulted. ' [21]

Summary

[68] The sum total of the above is that a municipality which has obtained an order in terms of s 21 of the Act enjoys no discretion

whether to demolish an illegally erected building, except with the permission of a court, exerc1smg judicial oversight. Even if there was such discretion, it has not been properly exercised on the facts of the present case. In any event it seems, on the available evidence that the municipality has reached the end of the road in its endeavours to accommodate the owner of the illegally erected building, as the requirements seem to be beyond the owner's reach. Put differently, it appears that the municipality's requirements are insurmountable to the owner.

[69] Under these circumstances, we find it difficult, on any conceivable basis, to come to the aid of the owner of an illegally erected building. The conclusion is therefore that by failing to demolish the building, the municipality has breached its statutory duty to uphold the law.

Modalities regarding the demolition

[70] There remains the technical aspect of the demolition of the building. The municipality has to ensure that the demolition of the building does not compromise the structural integrity of adjacent buildings. Unlike the Supreme Court of Appeal in BSM International, the court a quo did not give consideration to this aspect. We should make provision in this regard for an engineer's certificate.

To ensure that this does not become another avenue for further bureaucratic obfuscation, the process for the appointment of the

engineer should be defined. It is only fair that Mr Harrington should bear the costs of procuring the engineer's certificate.

Conclusion

[71] In the result the appeal has to fail. The order of the court a quo should however be amended to the extent that the technical aspect of the demolition should be built into the order. Costs should follow the event. Both parties employed two counsel. This was prudent and warranted, given the nature of matter and the issues involved.

Order

[72] The following order is made:

1. The order of the court a quo is amended by the addition of the following paragraphs:

'1. The appellant's building erected at number [...] , Middleburg, Mpumalanga is to be demolished pursuant to an order of the Middelburg magistrate court on 1 August 2008, after a suitably qualified engineer has certified that the demolition of the building will not compromise the structural integrity and safety of the adjacent buildings;

2. The municipality shall within 15 days of this order request the Chief Executive Officer of the Engineering Council of South Africa to furnish it with three names of engineers , from which it shall select one for the purpose of the certificate referred to in paragraph I above;

3. The costs of the engineer for preparing the report referred to in paragraph 1 shall be borne by the appellant;

4. Should the municipality fail to act in terms of paragraph 2 within the stipulated time period, the respondent is authorised to so act, and may recover the costs for doing so, from the appellant.”

2. The municipality shall within 15 days of this order request the Chief Executive Officer of the Engineering Council of South Africa to furnish it with three names of engineers, from which it shall select one for the purpose of the certificate referred to in paragraph 1 above;

3. The costs of the engineer for preparing the report referred to in paragraph I shall be borne by the appelleant;

4. Should the municipality fail to act in terms of paragraph 2 within the stipulated time period, the respondent is authorised to so act, and may recover the costs for doing so, from the appellant,'

2. Save to the extent set out above the appeal is dismissed with costs, including costs attendant upon the employment of two counsel.

______

TM Makgoka

Judge of the High Court

I agree

SAM Baqwa

APPEARANCES:

For the Appellant:

R J Raath SC (with R J Groenewald)

Instructed by:

Terblanche-Pistorius Inc.,

Christo Coetzee Attorneys, Pretoria

For the Respondent: B H Swart SC (with GT Avvakoumides)

Couzyn Hertzog Inc., Pretoria

[1] Section 4(1) of the Act prohibits the erection of any building in respect of which plans and specifications a re to be drawn and submitted in terms of the Act, without the prior approval in writing of the local authority in question. Section 4(4) renders the contravention of s 4(1) a criminal offence with a penal sanction of a fine. Section 9 makes provision for an appeal against decisions of local authorities. The refusal to grant approval of building plans is appealable to a review board.

[2] See for example Johannesburg City Council v Tuckers Land Holdings Ltd and Others 197 1 (2) SA 478 (W); Alberton Town Council v Zuanni 1980 (I) SA 278 (T); Lester v Ndlambe Municipality and another [2014) I All SA 402 (SCA) para 21.

[3] In terms of section 34(1) of the National Heritage Resources Act 25 of 1999, no person may alter or demo l is h any structure which is older than 60 years without a permit issued by the relevant

provincial heritage resources authority.

[4] The municipality was cited as the second respondent, the first respondent being the mayor of the municipality. The member of the executive committee (MEC) responsible for local affairs was the third respondent, while the fourth and fifth respondents were respectively, Mr Harrington and the close corporation through which his hotel is conducted . The rest of the respondents took no part in the proceedings in the court a quo.

[5] Lester v Ndlambe Municipality and another 2015 (6) SA 283; [2014) I All SA 402 (SCA).

[6] United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T).

[7] The correctness of that conclusion was doubted by the majority of the court in BSB International Link CC v Readam South Africa (Pty) Ltd and another [2016) 2 All SA 633; 2016 ( 4) SA 83 (SCA) paras 27 and 28. Majiedt JA, who wrote the unanimous judgment in Lester, unsurprisingly, wrote a dissenting judgment in BSB International.

[8] Matatiele Municipality v President of the Republic of South Africa 2006 (5) SA 47 (CC).

[9] Para 67.

[10] PaddockMotors (Pty) Ltd v Igesund 1976 (3) 16 (A).

[11] At 24A-B.

[12] The principle denotes that the law does not govern trifles.

[13] See also Peri-Urban Areas Health Board v Sandhurst Gardens (Pty) Ltd 1965 (I) SA 683 (T).

[14] See for example Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC and Others 2004 (2) SA 81 (SE); City of Tshwane Metropolitan Municipality v Grobler and others 2005 (2188 7/04) [2005)

ZAGPPHC 22 (23 February 2005); Laskey and Another v Showzone CC and Others 2007 (2) SA 48 (C); Bitou Local Municipality v Timber Two Processors CC 2009 (5) SA 678 (C) See however. Huisamen and Others v Port Elizabeth Municipality 1998 ( I ) SA 477 (EC) where the full court of the Eastern Cape Divisi on accepted, without discussion, that a court in general has a judicial discretion whether or not to issue an interdict. However, the court recognised, at 483J-484B that the exercise of such discretion in favour of a respondent whose conduct amounts to a criminal offence under a statute seemed to be 'somewhat debatable' unless the contravention may be said to be de minimis, as a court which refused to interdict criminal conduct would, in effect, sanction it.

[15] Moamed and another v President of the Republic of South Africa and others 200 I (3) SA 893 (CC).

[16] Para 68.

[17] Natal Joint Municipality Fund v Emdumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262; 2012 (4) SA 593 (SCA) para 18.

[18] Readam SA (Pty) Ltd v BSB International Link CC and others [2017] 2 All SA 902 (GJ).

[19] Paras 1 3 , 16and 17.

[20] Para 26.

[21] Para 26.