O'Grady v Fischer and Others (A30/06) [2006] ZAWCHC 67; 2007 (2) SA 380 (C) (17 May 2006)

O'Grady v Fischer and Others (A30/06) [2006] ZAWCHC 67; 2007 (2) SA 380 (C) (17 May 2006)

The court held that the paved parking area constructed by the first respondent falls within the ordinary dictionary meaning of 'structure' and thus within the extended definition of 'building' under section 1(a) of the National Building Regulations and Building Standards Act. However, the Act only requires written approval for buildings in respect of which plans and specifications must be submitted, and the appellant failed to provide evidence that the paved area was not exempted or that such approval was required. The appellant did not discharge the onus of proving entitlement to a final interdict, as he did not exclude the possibility of exemption under the Act. The magistrate's refusal...

Citation
[2006] ZAWCHC 67
Parties
Appellant: Raymond Patrick O'Grady; Respondent: Franz Fischer; Respondent: Municipality of Stellenbosch; Respondent: Boland District Municipality
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 May 2006
Case Number
A30/06
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal against the refusal of the application is dismissed; appeal against the costs order on an attorney and client scale succeeds.
Judges
D. Van Reenen, N.J. Yekiso
Legal Topics
Final Interdict, National Building Regulations, Statutory Interpretation, Costs Order
Land and Property Civil Procedure Final Interdict National Building Regulations Statutory Interpretation Costs Order

Case Brief

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Parties

Raymond Patrick O'Grady

Appellant

Franz Fischer

Respondent

Municipality of Stellenbosch

Respondent

Boland District Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the paved parking area constructed by the first respondent constitutes a 'building' under section 1(a) of the National Building Regulations and Building Standards Act, No 103 of 1977.
  2. 2 Whether the first respondent was required to obtain written approval from the local authority prior to constructing the parking area.
  3. 3 Whether the appellant established the requirements for a final interdict.

Ratio Decidendi

The court held that the paved parking area constructed by the first respondent falls within the ordinary dictionary meaning of 'structure' and thus within the extended definition of 'building' under section 1(a) of the National Building Regulations and Building Standards Act. However, the Act only requires written approval for buildings in respect of which plans and specifications must be submitted, and the appellant failed to provide evidence that the paved area was not exempted or that such approval was required. The appellant did not discharge the onus of proving entitlement to a final interdict, as he did not exclude the possibility of exemption under the Act. The magistrate's refusal...

Court Disposition

Appeal against the refusal of the application is dismissed; appeal against the costs order on an attorney and client scale succeeds.

Orders

  • The application is dismissed.
  • The magistrate's costs order is deleted and substituted with an order that the applicant is to pay the first respondent's costs on a party and party basis.