Failure to Comply with a Demolition Order: A Follow-up on the BSB Judgment

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In BSB International Link CC v Readam South Africa (Pty) Ltd and City of Johannesburg Metropolitan Municipality [2016] 2 All SA 633 (SCA), the Supreme Court of Appeal laid down important principles regarding the powers of the Court to order the demolition, or partial demolition, of illegally constructed buildings. BSB International Link CC (“BSB”) had erected a building on its property, adjacent to the immovable property of Readam South Africa (Pty) Ltd (“Readam”), which was in violation of the local town planning scheme. This violation resulted in the building later being declared unlawful by the Supreme Court of Appeal and, based on this unlawfulness, BSB was ordered to partially demolish the building in order to bring it within the scope of the town planning scheme.

Notwithstanding Readam’s various attempts to enforce compliance by BSB with this order, such attempts proved futile and it was clear that BSB had no intention of complying with the order. Instead of complying with the provisions of the order, BSB sought to overcome the contravention of the town planning scheme by, inter alia, purchasing the neighbouring erf, consolidating this erf with the erf which it previously owned and applying for a re-zoning. Such steps were taken in an attempt to make what was previously unlawful, lawful ex post facto.

Did this deliberate course of conduct by BSB to correct the problems in their own way constitute a wilful defiance of the Supreme Court of Appeal order?

The above question led the Gauteng Local Division to consider further, ancillary questions including whether principles, such as public policy, allow a litigant to unilaterally choose not to comply with a direct order of Court, thereby, effectively side-stepping the authority of the Court if, at the same time, de facto achieving the objective of lawfulness. It was necessary for the Court to consider whether BSB was in contempt of Court when the result of its actions led to the complained of actions being  rendered lawful.

In order for contempt of court to be proved, a wilful and mala fide defiance must be established beyond reasonable doubt. Although BSB argued that its actions, subsequent to the demolition order, effectively made what had been unlawful, lawful, the demolition order handed down by the Supreme Court of Appeal did not make the demolition optional in any respects. Consequently, BSB was declared to be in contempt of court and it was directed to comply with the order with the condition of a committal to incarceration for a period of thirty days should there be a further non-compliance.

This judgment, although severe in its outcome, demonstrates the Court’s unforgiving approach to parties failing to comply with a demolition order. Essentially, should you be an individual who intends engaging in once-off building activity or, alternatively, should you be a representative of a company which regularly engages in the building industry, it is of utmost important that you ensure that all building plans are properly approved and in accordance with published town planning schemes before even one brick is laid.

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)

Julia Newdigate
C & A Friedlander Inc.
– Construction Law

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