Smith v Kyaligonza (22/19414) [2024] ZAGPJHC 273 (14 March 2024)

Smith v Kyaligonza (22/19414) [2024] ZAGPJHC 273 (14 March 2024)

The court found that the applicant had established a prima facie case of non-compliance with approved building plans, supported by the town planner's report and the respondent's failure to produce a certificate of occupancy. The applicant's request for access was not a shifting of the goalposts but a necessary step to verify compliance, given the initial absence of building plans. The court held that its inherent powers under section 173 of the Constitution allowed it to grant the inspection order, notwithstanding the limited application of Rule 36. The respondent's objections based on privacy and lack of engagement were insufficient to outweigh the applicant's right to investigate...

Citation
[2024] ZAGPJHC 273
Parties
Applicant: Smith, Ruth; Respondent: Kyaligonza, Anthony; Respondent: City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 March 2024
Case Number
22/19414
Procedural Posture
Interlocutory Application / Application to Compel Access for Expert Inspection
Outcome
Application to compel access for expert inspection granted; costs reserved.
Judges
P Den Hartog
Legal Topics
Building Regulations, Access for Expert Inspection, Certificate of Occupancy, Boundary Encroachment, Municipal by Laws
Land and Property Civil Procedure Building Regulations Access for Expert Inspection Certificate of Occupancy Boundary Encroachment Municipal by Laws

Case Brief

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Parties

Smith, Ruth

Applicant

Kyaligonza, Anthony

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Interlocutory Application / Application to Compel Access for Expert Inspection

Legal Issues

  1. 1 Whether the applicant is entitled to access the respondent's property for expert inspection to verify compliance with approved building plans.
  2. 2 Whether the respondent's renovations and structures comply with municipal by-laws and approved plans.
  3. 3 Whether the absence of a certificate of occupancy indicates non-compliance with statutory requirements.

Ratio Decidendi

The court found that the applicant had established a prima facie case of non-compliance with approved building plans, supported by the town planner's report and the respondent's failure to produce a certificate of occupancy. The applicant's request for access was not a shifting of the goalposts but a necessary step to verify compliance, given the initial absence of building plans. The court held that its inherent powers under section 173 of the Constitution allowed it to grant the inspection order, notwithstanding the limited application of Rule 36. The respondent's objections based on privacy and lack of engagement were insufficient to outweigh the applicant's right to investigate...

Court Disposition

Application to compel access for expert inspection granted; costs reserved.

Orders

  • The First Respondent is ordered to grant a land surveyor and/or town planner duly appointed by the South African Association of Consulting Professional Planners access to the property for the purpose of taking measurements and inspecting the building structures to compile a report.
  • The First Respondent must provide access within fifteen (15) calendar days from being provided proof of appointment by the South African Association of Consulting Professional Planners.