Stuart and Another v National Home Builders Registration Council (89999/2018) [2021] ZAGPPHC 171 (29 March 2021)

Stuart and Another v National Home Builders Registration Council (89999/2018) [2021] ZAGPPHC 171 (29 March 2021)

The respondent's refusal to exempt the applicants as owner builders was based on an incorrect interpretation of the Housing Consumer Protection Measures Act, as the Act does not require owner builders to undertake a technical assessment for exemption. The precedent in Ruiters v Minister of Human Settlements and Another is directly applicable and binding. The respondent's failure to apply the law correctly constitutes a reviewable irregularity. Given the lapse of time and the absence of any factual dispute, the court is in as good a position as the respondent to make the decision. Exceptional circumstances justify the substitution of the court's decision for that of the administrative...

Citation
[2021] ZAGPPHC 171
Parties
Applicant: Leslie Alexander Stuart; Applicant: Elmo-York Stuart; Respondent: National Home Builders Registration Council
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 March 2021
Case Number
89999/2018
Procedural Posture
Review Application / Judgment
Outcome
Application granted; respondent's decision set aside and exemption granted to applicants.
Judges
N Janse Van Nieuwenhuizen
Legal Topics
Judicial Review, Owner Builder Exemption, Housing Consumer Protection Measures Act, Substitution Order, Administrative Action, Technical Assessment Requirement
Administrative Law Land and Property Judicial Review Owner Builder Exemption Housing Consumer Protection Measures Act Substitution Order Administrative Action Technical Assessment Requirement

Case Brief

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Parties

Leslie Alexander Stuart

Applicant

Elmo-York Stuart

Applicant

National Home Builders Registration Council

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the respondent's refusal to exempt the applicants as owner builders under section 29 read with section 10A of the Housing Consumer Protection Measures Act was lawful and reasonable.
  2. 2 Whether the requirement for a technical assessment is applicable to owner builders seeking exemption under the Act.
  3. 3 Whether the court should substitute its own decision for that of the administrative body.

Ratio Decidendi

The respondent's refusal to exempt the applicants as owner builders was based on an incorrect interpretation of the Housing Consumer Protection Measures Act, as the Act does not require owner builders to undertake a technical assessment for exemption. The precedent in Ruiters v Minister of Human Settlements and Another is directly applicable and binding. The respondent's failure to apply the law correctly constitutes a reviewable irregularity. Given the lapse of time and the absence of any factual dispute, the court is in as good a position as the respondent to make the decision. Exceptional circumstances justify the substitution of the court's decision for that of the administrative...

Court Disposition

Application granted; respondent's decision set aside and exemption granted to applicants.

Orders

  • The decision by the respondent dated 2 November 2018, declining the applicants' application for exemption in terms of section 29 read with section 10A of the Housing Consumer Protection Measures Act, Act 95 of 1998, is set aside.
  • It is declared that the applicants are exempted in terms of section 29 read with section 10A of the Housing Consumers Protection Measures Act, Act 95 of 1998, from complying with the provisions of the Act.