Ten Napel and Another v Ekurhuleni Metropolitan Municipality and Others (44339/2020) [2021] ZAGPJHC 566 (30 September 2021)

Ten Napel and Another v Ekurhuleni Metropolitan Municipality and Others (44339/2020) [2021] ZAGPJHC 566 (30 September 2021)

The respondent constructed a multi-unit residential building in clear contravention of restrictive title conditions, the town planning scheme, and without approved building plans. He admitted to ignoring municipal stop notices and continued building despite being aware of legal requirements. The court found his...

Source-derived case information.

Citation
[2021] ZAGPJHC 566
Parties
Applicant: Jan Lourens Ten Napel; Applicant: Hugo Du Rand; Respondent: Ekurhuleni Metropolitan Municipality; Respondent: Nyepane Petrus Shilane; Respondent: Mapaseka Ruth Shilane
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 September 2021
Case Number
44339/2020
Procedural Posture
Urgent Application / Final Judgment After Interim Relief (part B)
Outcome
Application granted. Demolition of unlawful structure ordered. Costs awarded against respondent and municipality (for Part A).
Judges
Fisher
Legal Topics
Building Regulations, Town Planning Scheme, Restrictive Conditions of Title, Demolition Order, Municipal Enforcement, Neighbour Law
Land and Property Civil Procedure Administrative Law Building Regulations Town Planning Scheme Restrictive Conditions of Title Demolition Order Municipal Enforcement +1 more

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Parties

Jan Lourens Ten Napel

Applicant

Hugo Du Rand

Applicant

Ekurhuleni Metropolitan Municipality

Respondent

Nyepane Petrus Shilane

Respondent

Mapaseka Ruth Shilane

Respondent

Procedural Posture

Urgent Application / Final Judgment After Interim Relief (part B)

Legal Issues

  1. 1 Whether the court should order demolition of a structure built in contravention of town planning and building regulations.
  2. 2 Whether the respondent's reliance on professional advice and pending applications for regularisation justify a stay of proceedings.
  3. 3 Whether the applicants are entitled to costs against the municipality for its failure to enforce statutory obligations.

Ratio Decidendi

The respondent constructed a multi-unit residential building in clear contravention of restrictive title conditions, the town planning scheme, and without approved building plans. He admitted to ignoring municipal stop notices and continued building despite being aware of legal requirements. The court found his explanation for the breach untenable and noted no credible prospects for regularisation or rezoning. The applicants acted promptly and appropriately to protect their rights, and the municipality failed to enforce its statutory obligations. The court exercised its discretion to order demolition, finding that the unlawful structure could not be allowed to remain, as it undermined the...

Court Disposition

Application granted. Demolition of unlawful structure ordered. Costs awarded against respondent and municipality (for Part A).

Orders

  • The new multi-dwelling structure on Portion 2 of Erf 57 Parkhill Gardens Township is declared unlawful for contravening the town planning scheme, restrictive title condition, and building regulations.
  • The second respondent is ordered to demolish the structure in its entirety and remove all rubble at his own cost.