Masuku v City of Mbombela (A55/2024; MRCC 227/2023) [2025] ZAMPMBHC 35 (8 May 2025)

Masuku v City of Mbombela (A55/2024; MRCC 227/2023) [2025] ZAMPMBHC 35 (8 May 2025)

The court held that the matter was governed by public law and statutory remedies under the National Building Regulations and Building Standards Act, not by common law principles. The Supreme Court of Appeal in Lester v Ndlambe Municipality established that once illegality is proven, the court has no discretion and must order demolition. The appellant's reliance on BSB International Link CC was misplaced, as that case concerned common law remedies, not statutory ones. The magistrate correctly applied the law and was bound to order demolition of the illegal structure. Even if discretion existed, the appellant failed to advance any facts to justify a different outcome.

Citation
[2025] ZAMPMBHC 35
Parties
Appellant: Eunice Zanele Masuku; Respondent: City of Mbombela
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
8 May 2025
Case Number
A55/2024
Procedural Posture
Civil Appeal / Appeal From Regional Magistrate's Judgment
Outcome
Appeal dismissed with costs.
Judges
H F Fourie, TV Ratshibvumo
Legal Topics
National Building Regulations Act, Illegal Structure Demolition, Public Law Remedy
Land and Property Administrative Law National Building Regulations Act Illegal Structure Demolition Public Law Remedy

Case Brief

Summary, issues, holding and outcome

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Parties

Eunice Zanele Masuku

Appellant

City of Mbombela

Respondent

Procedural Posture

Civil Appeal / Appeal From Regional Magistrate's Judgment

Legal Issues

  1. 1 Whether the magistrate had a discretion to order demolition of an unlawfully erected structure under the National Building Regulations and Building Standards Act.
  2. 2 Whether the court a quo correctly applied the prevailing legal principles regarding demolition orders for illegal structures.

Ratio Decidendi

The court held that the matter was governed by public law and statutory remedies under the National Building Regulations and Building Standards Act, not by common law principles. The Supreme Court of Appeal in Lester v Ndlambe Municipality established that once illegality is proven, the court has no discretion and must order demolition. The appellant's reliance on BSB International Link CC was misplaced, as that case concerned common law remedies, not statutory ones. The magistrate correctly applied the law and was bound to order demolition of the illegal structure. Even if discretion existed, the appellant failed to advance any facts to justify a different outcome.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the respondent's costs on party and party, Scale A.