South Africa: Total Or Partial Demolition Of Illegal Construction: SCA Causes Confusion

BSB International Link CC v Readam South Africa (Pty) Limited

Recently in Lester v Ndlambe Municipality and another, the Supreme Court of Appeal held that a court hearing an application in terms of section 21 of the Building Regulations and Building Standards Act had no discretion but to order demolition of a building constructed without the required building approval, ie it could not order partial demolition but was compelled to order total demolition. This was so, the court emphasized, because the law could not and did not countenance an ongoing illegality which was also a criminal offence, and to do so would subvert the doctrine of legality and undermine the rule of law. In April 2016, however, the SCA seemed to say something different.

FACTS

In terms of section 21 of the National Building Standards Act 103 of 1977 (the NBSA) 'a magistrate shall have jurisdiction, on the application of any local authority or the Minister, to make an order . . . authorising such local authority to demolish such building if such magistrate is satisfied that such erection is contrary to or does not comply with the provisions of this Act or any approval or authorisation granted thereunder'.

In Lester, as indicated above, it was decided that a court hearing an application in terms of section 21 of the NBSA had no discretion but to order demolition of the building—ie it could not order partial demolition but was compelled to order total demolition. This was so, it was held, because the law could not and did not countenance an ongoing illegality which was also a criminal offence, and to do so would subvert the doctrine of legality and to undermine the rule of law.

However, in the recent case of BSB International Link CC v Readam South Africa (Pty) Ltd the correctness of the Lester judgment was questioned in a majority decision, albeit obiter. The case concerned an appeal against a number of High Court orders, amongst others, for the demolition of an unlawfully constructed building, to the extent necessary to ensure compliance with the relevant town planning scheme. The order was given on application by an aggrieved adjoining owner in terms of the common law and did not involve section 21 of the NBSA. It was for this reason that a partial demolition was competent.

The majority of the SCA in BSB upheld the High Court finding but observed that if the municipality had properly performed its functions and approached the court in terms of section 21 of the NBSA, the court would, on the strength of Lester, have been obliged to grant an order of total demolition. If Lester was correct, the majority stated, 'a stark dichotomy would exist between our common law and our statutory law in respect of substantially the same remedy . . . (f)or, in terms of the former, a court would have a broad general discretion, whilst in terms of the latter, a court would have no discretion'. The majority, then proceeded to list '(s)everal important factors which appear[ed] not to have received due consideration in the interpretive exercise undertaken by Lester':

'First, given the draconian nature of the power (namely to order demolition) the purpose of s 21 must obviously be to ensure judicial oversight. Judicial oversight without a judicial discretion seems, on the face of it, to be a contradiction in terms. The absence of a discretion would in those circumstances run counter to the proper exercise of judicial oversight.

Second, if the magistrates' court is merely to perform a rubber-stamping function then a review can hardly lie to the High Court at the instance of anyone aggrieved by that decision.

Third, in terms of s 21 of the NBSA a court has the power 'to make an order prohibiting any person from commencing or proceeding with the erection of any building or authorising such local authority to demolish such building'. Consequently, after the commencement of the erection of the building, but before completion of its erection, a court can grant an order either prohibiting the person from 'proceeding with the erection' or an order of demolition. If a court possesses such a discretion then it is difficult to see why, once erection of the building is complete, a court no longer possesses a discretion to even grant a partial demolition of the building to the extent of its illegality.

Fourth, irrespective of the extent of the illegality a demolition order must follow. Thus, even a fairly trivial illegality must elicit the rather disproportionate sanction of total demolition. Whether our Constitution would countenance that has to be debateable.

Fifth, in terms of s 26(3) of the Constitution no one may have their home demolished 'without an order of court made after considering all of the relevant circumstances'. That plainly envisages the exercise of a broad general discretion. Thus certainly insofar as a home is concerned, with which we are admittedly not concerned here, an interpretation of s 21 that there is no discretion appears not to square with the Constitution.

Sixth, the definition of 'building' in s 1(d) of the NBSA includes 'any part of a building' which suggests that any relief granted in terms of s 21, may be directed at part of a building. That, it goes without saying, will entail the exercise of a discretion.'

It thus seems incongruous to require judicial oversight over the grant of a demolition order in terms of section 21 of the NBSA but then remove any discretion from a court whether to grant a partial or total demolition order. The exercise of a discretion to order the partial demolition of a building to the extent of its illegality, accords with the principle of legality, because in granting such an order a court in no way abrogates its duty to enforce the law. For, these reasons, which are probably by no means exhaustive, it may well be that the interpretation placed on section 21 by Lester does not survive careful scrutiny. But, it is not necessary for now to express any firm view on its correctness.'

The minority judgment in BSB concurred with the majority's reasons for dismissal the appeal but criticised its obiter remarks questioning the Lester decision, emphasising that Lester remained binding authority. That may be so but the majority's obiter remarks may well afford the basis for a challenging that authority, prying open the door that Lester had shut on any judicial discretion to order partial demolition in applications under section 21 of the NBSA.

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