HT De Jager Properties CC v National Home Builders Registration Council (30954/2006) [2008] ZAGPHC 315 (1 February 2008)

HT De Jager Properties CC v National Home Builders Registration Council (30954/2006) [2008] ZAGPHC 315 (1 February 2008)

The court found that the respondent misconceived its powers under the Act and Rules by insisting on guarantees as a blanket requirement for late enrolment, without conducting a proper risk assessment or considering the competent person's certification. The applicant had complied with all requirements for late enrolment, including exposing the works for inspection and obtaining certification from a qualified engineer. The respondent's refusal to inspect and its reliance on a circular mandating guarantees for all late enrolments was unreasonable and not supported by the statutory scheme, which aims to protect housing consumers without unduly increasing building costs. The respondent's...

Citation
[2008] ZAGPHC 315
Parties
Applicant: HT De Jager Properties CC; Respondent: National Home Builders Registration Council
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
1 February 2008
Case Number
30954/2006
Procedural Posture
Review Application / Judgment on Review of Administrative Decision
Outcome
Application succeeded; respondent's decisions reviewed and set aside; respondent ordered to reconsider the applications and pay costs, including costs of two counsel.
Judges
Hartzenberg
Legal Topics
Housing Consumers Protection Measures Act, Late Enrolment of Building Projects, Administrative Reasonableness, Risk Management, Guarantees and Sureties
Administrative Law Land and Property Housing Consumers Protection Measures Act Late Enrolment of Building Projects Administrative Reasonableness Risk Management Guarantees and Sureties

Case Brief

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Parties

HT De Jager Properties CC

Applicant

National Home Builders Registration Council

Respondent

Procedural Posture

Review Application / Judgment on Review of Administrative Decision

Legal Issues

  1. 1 Whether the respondent was entitled to require guarantees from the applicant as a precondition for late enrolment of the building project.
  2. 2 Whether the respondent properly exercised its discretion under Rule 14(7) and section 16(1) of the Housing Consumers Protection Measures Act.
  3. 3 Whether the respondent failed to conduct a reasonable risk assessment before insisting on guarantees.

Ratio Decidendi

The court found that the respondent misconceived its powers under the Act and Rules by insisting on guarantees as a blanket requirement for late enrolment, without conducting a proper risk assessment or considering the competent person's certification. The applicant had complied with all requirements for late enrolment, including exposing the works for inspection and obtaining certification from a qualified engineer. The respondent's refusal to inspect and its reliance on a circular mandating guarantees for all late enrolments was unreasonable and not supported by the statutory scheme, which aims to protect housing consumers without unduly increasing building costs. The respondent's...

Court Disposition

Application succeeded; respondent's decisions reviewed and set aside; respondent ordered to reconsider the applications and pay costs, including costs of two counsel.

Orders

  • The decisions of the respondent's provincial manager, Nurse L Chavalala, taken on 18 July 2006 and endorsed by the Chief Executive Officer on 15 September 2006, requiring the applicant to furnish guarantees of R974,400 and R2,305,200 as a precondition to enrolment, are reviewed and set aside and referred back to the...
  • The respondent is ordered to pay the applicant's costs of the application, including the costs of two counsel, save for any existing orders for costs.