Pellencin v City of Tshwane Metropolitan Municipality (47233/11) [2012] ZAGPPHC 133 (28 June 2012)

Pellencin v City of Tshwane Metropolitan Municipality (47233/11) [2012] ZAGPPHC 133 (28 June 2012)

The court held that the review board's decision to uphold the applicant's appeal constituted a de novo determination, effectively approving the building plans as built. The respondent's grounds for refusal were rejected by the review board, and no evidence was presented that the building failed to comply with the Act or any applicable law. Consequently, the respondent had no lawful basis to refuse the occupation certificate. The court found that section 14 of the Act imposed a legal obligation on the respondent to issue the certificate once compliance was established. The proceedings before the review board were an appeal, not a review, and the Promotion of Administrative Justice Act was...

Citation
[2012] ZAGPPHC 133
Parties
Applicant: S W Pellencin; Respondent: City of Tshwane Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 June 2012
Case Number
47233/11
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted; respondent ordered to issue occupation certificate and pay costs.
Judges
L I Vorster
Legal Topics
Mandamus, Building Regulations, Certificate of Occupancy, Administrative Appeal, Review Board Powers
Administrative Law Land and Property Mandamus Building Regulations Certificate of Occupancy Administrative Appeal Review Board Powers

Case Brief

Summary, issues, holding and outcome

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Parties

S W Pellencin

Applicant

City of Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent is legally obliged to issue an occupation certificate after the review board upheld the applicant's appeal.
  2. 2 Whether any residual discretion remains with the respondent to refuse the occupation certificate under section 14 of the National Building Regulations and Building Standards Act.
  3. 3 Whether a mandamus is the appropriate remedy in these circumstances.

Ratio Decidendi

The court held that the review board's decision to uphold the applicant's appeal constituted a de novo determination, effectively approving the building plans as built. The respondent's grounds for refusal were rejected by the review board, and no evidence was presented that the building failed to comply with the Act or any applicable law. Consequently, the respondent had no lawful basis to refuse the occupation certificate. The court found that section 14 of the Act imposed a legal obligation on the respondent to issue the certificate once compliance was established. The proceedings before the review board were an appeal, not a review, and the Promotion of Administrative Justice Act was...

Court Disposition

Application granted; respondent ordered to issue occupation certificate and pay costs.

Orders

  • The Respondent is ordered to issue an occupation certificate in respect of the dwelling situated at ….... Street, Wonderboom South, Pretoria to the applicant.
  • The Respondent pays the Applicant's costs of suit.