Ndlambe Municipality v Lester and Others (92/2011) [2012] ZAECGHC 33; [2012] 3 All SA 441 (ECG) (3 May 2012)

Ndlambe Municipality v Lester and Others (92/2011) [2012] ZAECGHC 33; [2012] 3 All SA 441 (ECG) (3 May 2012)

The court found that the dwelling constructed by Lester is an unlawful structure, both judicially and administratively, as it was built without approved plans and in breach of statutory and municipal requirements. Previous court orders and administrative decisions declaring the structure unlawful are binding and cannot be set aside by a single judge in the exercise of discretion. While the court retains a discretion in granting demolition orders, this discretion must be exercised judicially, weighing the disproportionality of prejudice and the dictates of legal and public policy. The hardship and financial loss to Lester, though significant, is not disproportionate to the prejudice...

Citation
[2012] ZAECGHC 33
Parties
Applicant: Ndlambe Municipality; Respondent: Matthew Robert Michael Lester; Respondent: High Dune House (Pty) Ltd.; Respondent: Haslam
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
3 May 2012
Case Number
92/2011
Procedural Posture
Review Application / Final Judgment After Multiple Prior Applications and Counter Application
Outcome
Application for demolition order granted; counter-application dismissed.
Judges
Alkema
Legal Topics
Building Regulations, Demolition Order, Municipal Approval, Title Deed Restriction, Proportionality of Prejudice, Constitutional Right to Housing
Administrative Law Land and Property Civil Procedure Building Regulations Demolition Order Municipal Approval Title Deed Restriction Proportionality of Prejudice +1 more

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Parties

Ndlambe Municipality

Applicant

Matthew Robert Michael Lester

Respondent

High Dune House (Pty) Ltd.

Respondent

Haslam

Respondent

Procedural Posture

Review Application / Final Judgment After Multiple Prior Applications and Counter Application

Legal Issues

  1. 1 Whether the court has a discretion to refuse a demolition order under section 21 of the National Building Regulations and Building Standards Act when the structure is unlawful.
  2. 2 Whether the prejudice to the owner of the unlawful structure outweighs the prejudice to the neighbouring property owner.
  3. 3 Whether the principle of legality and public policy require demolition in the circumstances.

Ratio Decidendi

The court found that the dwelling constructed by Lester is an unlawful structure, both judicially and administratively, as it was built without approved plans and in breach of statutory and municipal requirements. Previous court orders and administrative decisions declaring the structure unlawful are binding and cannot be set aside by a single judge in the exercise of discretion. While the court retains a discretion in granting demolition orders, this discretion must be exercised judicially, weighing the disproportionality of prejudice and the dictates of legal and public policy. The hardship and financial loss to Lester, though significant, is not disproportionate to the prejudice...

Court Disposition

Application for demolition order granted; counter-application dismissed.

Orders

  • The First Respondent is ordered to demolish the offending building structure highlighted on Annexure RD 27 of the Applicant’s Founding Affidavit, at his costs and expense, within 180 days of this order.
  • The First Respondent, on good cause shown, is granted leave to apply to this court to extend the period of 180 days.