BSB International Link CC v Readam South Africa (Pty) Ltd and City of Johannesburg Metropolitan Municipality is a recent judgment handed down by the Supreme Court of Appeal. The judgment lays down important principles regarding the powers of the Courts to order the demolition, or partial demolition, of illegally constructed buildings. The judgment should serve as a warning to property developers and building contractors, and those involved in providing them with legal advice, about the dangers of proceeding with building works in contravention of relevant legislation.
Readam South Africa (Pty) Ltd (“Readam”) sought to demolish a building owned and constructed by BSB International Link CC (“BSB”) to the extent necessary to comply with the Sandton Town Planning Scheme. The judgment examined the relevant provisions of the law relating to illegal building structures and, in this light, sought to determine whether the Court has a general discretion to order the demolition of an illegally constructed building. .
The Supreme Court of Appeal held that the only power to be found in the National Building Regulations and Building Standards Act (“the NBSA”) to order the demolition of a building is that contained in section 21. The Court, in this light, examined the judgment of Lester v Ndlambe Municipality and Another in which the Supreme of Court of Appeal had held that a court hearing an application in terms of section 21 of the NBSA has no latitude not to order the complete demolition of a building once the relevant fact had been established.
The Court, at this stage, emphasised the ‘stark dichotomy’ between the provisions contained in section 21 of the NBSA and the provisions of the common law. The right provided for in section 21 of the NBSA is intended to enable the Minister and local authorities to ensure compliance with the provisions of the NBSA in relation to town planning schemes. Consequently, an individual would not be able to pursue the remedies provided for in section 21.
However, the Court stated that an individual would have the power to apply for an order for the demolition of a building in terms of the common law. In this regard, the Court stated that a discretion is vested in the Court when considering whether or not to order the demolition of a building. Based on the present set of facts, the Court, upon examination of the relevant circumstances, tipped the scales in favour of Readam due to the fact that BSB had been warned that it was acting illegally and, in spite of such warning, deliberately persisted in its illegal construction activities.
The Supreme Court of Appeal concluded that in a case such as this, a broad general discretion is vested in the Court which is to be exercised after due consideration of all relevant circumstances. The Court, however, stated that before granting a partial demolition order, it must be satisfied that the illegality complained of is capable of being addressed by such an Order and that it is practically possible to do so. It may be necessary to obtain expert evidence, such as engineers and architects, to ensure that the structural integrity and safety of the building is not compromised should a partial demolition of the building be ordered.
It is clear that the judgment raises some intricate legal issues. But these should not obscure its practical effect for all involved in the building industry. The message is clear: build illegally at your peril. If you do so, a neighbour may decide to take you on, and you may find yourself on the receiving end of the judgment of a court exercising its discretion to order your building to be totally or partially demolished.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)