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IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

(1)            REPORTABLE: YES (2)            OF INTEREST TO OTHER JUDGES: YES (3)            REVISED. YES                   ………………………...                    DATE                                            SIGNATURE

                               

CASE NO: 100/2023

 

 

In the matter between

THULAMELA LOCAL MUNICIPALITY                          APPLICANT

and                          

SIKANDAR YUSUF ALIMOHAMED                               1^ST RESPONDENT

AMINA YUSUF ALIMOHAMED                                      2^ND RESPONDENT  

MOHAMED MUKHTAR ALIMOHAMED                        3^RD RESPONDENT

FARHANA MUSTAQ PATEL                                          4^TH RESPONDENT

MEHUL PATEL                                                                5^TH RESPONDENT

FNA FAMILY TRUST,

TRUST NO: IT000018/2020 (V)                                       6^TH RESPONDENT

MASTER OF THE HIGH COURT,

THOHOYANDOU                                                             7^TH RESPONDENT

REGISTRAR OF DEEDS                                                 8^TH RESPONDENT

                           

 

REASONS FOR THE ORDER

         

 

DENGE AJ

 

 

INTRODUCTION

 

[1] The applicant, hereinafter referred to as Thulamela brought an application for a final interdict against 1^st to 6^th respondents on an urgent basis. On 31/01/2023 this court, per acting DJP AML Phatudi  issued a rule nisi, returnable on 16 /03/2023, calling upon the 1^st to 6^th respondents to show cause, if any, as to why a final order may not be granted in the following terms:

 

“2.1 Interdicting and restraining the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th respondents from building or constructing the immovable structure at Erf Unit 24 Thohoyandou- P held under General Plan Number 282/1977 and Title Deed Number TG542397VN at Thohoyandou in the district of Thulamela in the Limpopo Province, without strict compliance with the approved building plan which was approved by the applicant on the 02/03/2022;

 

2.2 Directing the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th respondents to rectify their building structure at Erf Unit 24 at Thohoyandou- P referred to in paragraph 2.1 above by:

 

2.2.1 Removing the face brickwork and restoring the plaster and paint brickwork with decorative stone cladding as approved in the plan referred to in paragraph 2.1 above;

 

2.2.2 Restoring the dividing wall between shop 1 and shop 2 as approved in the plan referred to in paragraph 2.1 above;

 

2.2.3 Erecting the ablution facilities as reflected in the approved plan, contrary to only one toilet which has been built;

 

2.2.4 Restoring the rear open space which is currently bricked up with no access to parking or delivery zone;

2.2.5 Restoring the approved position and type of doors and windows in the structure as opposed to the current doors and old windows;

 

2.2.6 Demolishing the newly -introduced staircases within shop 1 position which is not in the approved plan; and

 

2.2.7 Demolishing or removing the new columns which were added without the approval in the approved plan referred to in paragraph 2.1 above;

 

3. That the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th respondents be ordered to pay costs of this application on an attorney and client scale;

 

4. That the applicant be granted further and or alternative relief; and

 

5. That the entire paragraph 2 above be immediately operative as a rule nisi pending finalisation of the matter.”

 

[2] The applicant then sought no cost order against the 7^th and the 8^th respondents, who, in any event, had not opposed the application.

 

[3] The rule nisi was extended on two occasions. Meanwhile, the 1^st to 6^th respondents, hereinafter referred to as the respondents, and the applicant filed the answering and replying affidavits, respectively.

 

[4] In their papers, the respondents applied for condonation for the late filing of their answering affidavits. Thulamela had not opposed that application by the respondents.

 

[5] The respondents also prayed that the rule nisi be discharged with costs on an attorney -and client scale. On the other hand, Thulamela had not pursued its prayer for attorney -and client costs against the respondents.

 

[6] The matter served before me on 06/09/2023; whereupon the point-in limine that had been raised by the respondents was also argued. Having read all papers filed of record, and having heard arguments of both counsel for the applicant and the respondents, it became clear that the applicant had made out a case for the relief sought.

 

[7] In the result, the rule nisi was confirmed with costs.

 

[8] Subsequent thereto, on 06/09/2023, the respondents’ attorneys filed a notice for the request for reasons for the order granted in favour of the applicant. The requested reasons appear hereinafter.

 

BACKGROUND

 

The Parties:

 

[9] Thulamela, is a municipality established in terms of section 12 of the Local Government Municipality Structures Act (1). It has power to govern on its own initiative, the local government affairs of its community whereat Erf Unit 24 Thohoyandou-P is located, subject to national and provincial legislation in terms of subsection 151(3) of the Constitution (2). It also has the power to make and administer by-laws for the effective administration of the matters which it has to administer, in terms of subsection 156 (2) of the Constitution (3).

 

[10] The 6^th respondent is a family trust whose address of operation is Erf Unit 24, Thohoyandou-P, in the Thulamela District. It is registered at the office of the Master of the High Court at Thohoyandou under Trust Number IT000018/2020 (V) and the 1^st to the 5^th respondents are its trustees.   

 

[11] The 7^th respondent, the Master of the High Court of South Africa at Thohoyandou is responsible for registration of trusts and appointment of trustees thereto; whereas the 8^th respondent, the registrar of Deeds in Limpopo is an officer created in terms of the laws regulating the immovable properties with its main place of business situated at 101 Bok Street Polokwane in the District of Polokwane. Nothing more needs be said about the 7^th and the 8^th respondents; seeing that they have not opposed the application by Thulamela for a final interdict.

 

6^th Respondent’s Approved Building Plan:

 

[12] The 6^th respondent acquired ownership of a piece of land referred to above as Erf Unit 24 Thohoyandou–P, through its aforementioned trustees. Subsequent thereto, the respondents presented to Thulamela a building plan to build a double –storied store or shop in the Erf, which building plan was duly approved on 02/03/2022.

 

[13] Annexure “TLM6” to the replying affidavit, namely the building permit, was received by the respondents’ architecture, M.A.P Luruli on 03/03/2022. The permit lists conditions for the approval of the plan, three of which relate to the site owner and the contractor’s responsibility (1) to complete the building strictly according to the approved building plan, all by-laws, “Building Regulations” and any other relevant legislative framework; (2) to ensure that approved temporary toilet facilities are provided for workers before construction work commenced and (3) to give at least 2 (two) days’ notice to the building inspector for compulsory inspections of foundation excavations prior casting of concrete, compaction and slab, superstructure-brickwork, superstructure plastering and final Inspection.

 

LEGISLATIVE FRAMEWORK

 

[14] The National Building Regulations and Building Standards Act (“The Building Regulations “) (4) intends to provide for “the promotion of the uniformity in the law relating to the erection of buildings in the areas of jurisdiction of local authorities; for the prescribing of building standards; and for matters connected therewith”.

 

[15] Subsection 4(1) of “The Building Regulations” provides that “ No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act”.

Subsection 6 (1) of the same Act provides that “A building Control Officer shall____

(a) ……………;

(b)……………;

(c) Inspect the erection of a building, and any activities or matters connected therewith, in respect of which approval referred to in section 4(1) was granted;

(d) report to the local authority in question, regarding non-compliance with any condition on which approval referred to in section 4(1) was granted.” 

 

[14] Subsection 10(1) of the “same Act” provided as follows:

“If any building or earthwork __

(a)  in the opinion of the local authority in question is being or is to be erected in such a manner that it __

(i)           will not be in the interests of good health and hygiene;

(ii)       will be unsightly or objectionable;

          (iii)        …………….;

          (iv)       …………….;

(b)  …………….;

such local authority may by notice in writing, served by post or delivered, prohibit the person erecting such building or earthwork from causing such building to be erected or commencing or proceeding with the erection thereof or from so commencing or proceeding except on such conditions as such local authority may determine from time to time.”

 

[16} Subsection 10(2) of the “same Act” criminalises failure to comply with any

provision of a notice or condition referred to in subsection (1) and also provides that the offender is liable on conviction to a fine not exceeding R100 for each day that the offender so failed.

 

SALIENT FACTS 

 

[17] Thulamela, through its municipal manager Masala Thomas Makumula, who deposed to the founding affidavit to which is attached confirmatory affidavits deposed to by building Inspectors Ntanganedzeni Petunia Mashila and Maduvha Ntsudzuluseni Mphaphuli, respectively, averred that the two inspectors visited the respondents’ site in the Erf, where they found the ground floor of the structure almost finished, and the upper floor erection about to commence.

 

[18] It further averred that the two inspectors observed that the structure was being built in contravention of the approved building plan in the following respects:

 

(1) All brickwork was changed to face brick from plaster and paint with decorative stone cladding;

(2) Dividing wall between shop 1 and shop 2 was not done at all;

(3) Ablution facilities area not done at all; instead, they built one toilet only;

(4) Rear open space was bricked up with no access and or delivery zone

(5) Approved positions of windows and doors including type and size were replaced, with old windows obtained somewhere or removed from some old structures;

(6) There were newly introduced staircases within shop 2 position, which were not part of the approved plan, and

(7) There were new columns included or constructed, which were not part of

the approved plan. 

 

[19] Thulamela also averred that the building inspectors issued to the respondents a building notice, namely Annexure “T8” to the founding affidavit to rectify the alleged violations and to thereafter proceed to build in accordance with the approved plan. The notice was not complied with. According to Thulamela, further building notices were issued against the respondents until the first final one, namely Annexure “T9” to the founding affidavit that was issued on 15/11/2022, allegedly.

 

[20] Thulamela averred that on Friday, and during what seemed to have been their last visit to the said site, the aforesaid building inspectors found that instead of rectifying the alleged deviations, the respondents were busy preparing to proceed with the construction of the upper floor, using the brickwork used on the ground floor.

 

[21] It seemed to have been common cause between Thulamela and the respondents that, during December 2022 and the last week (the alleged last visit presumably) on 18/01/2023 the 1^st respondent approached one of the aforesaid building inspectors, Mr Mphaphuli promising to correct the deviations that Thulamela had complained about. Unfortunately, according to Thulamela, when their two building inspectors visited the site again on 20 January 2023, they found that the construction of the second phase of the building or the upper floor was going on. It was then that Thulamela decided that the respondents be ordered by the Court to comply with the approved building plan as a matter of urgency.

 

[22] In conclusion, Thulamela submitted that if the respondents were not stopped from proceeding with the building work before they completed the second phase of the structure, it would have been impossible to correct or rectify the building without demolishing the whole building. It further submitted that the dust associated with the demolishing process or activity would have exposed it to the litigation by the neighbours who would have suffered various complications ranging from health complications to inconveniences. Lastly, Thulamela submitted in the same regard that, its expenses and logistics for carrying out a demolition would have been extremely high.

 

[23] The respondents denied that there was no compliance, and in the process raised a point-in limine to which I turn, immediately below.

 

THE POINT- IN-LIMINE

 

[24] The respondents raised a three-pronged point-in-limine wherein they complained about the alleged non-service and insufficiency of the alleged building notices, alleged lack of objective evidence and the alleged failure by Thulamela to point to by-laws, if any, which were applicable to this matter; and submitted that Thulamela had failed to meet the threshhold required of the types of applications, or to warrant any interdict at all; with the result that there was no proper application before the Court, and, therefore, that the application fell to be dismissed.

 

[25] Firstly, the respondents averred that they did not receive any building notices, and further said that there was no proof that the building notices were served on them. They submitted that the notices, namely Annexures “T8” and “T9” that I referred to, hereinabove, contained nothing related to the application.  

 

[26] Secondly, the respondents contended in their answer that there was no objective evidence by way of pictures and notes as well as comments from the building inspector, upon which they could be accused of a deviation.

 

[27] Lastly, the respondents contended that Thulamela contented itself with “The Building Regulations” which, so the argument goes, were in general terms and did not assist it. In the same vein, the respondents contended that Thulamela has failed to show whether it had passed by-laws, and if it did, which of those by-laws were (are) applicable to this case.

 

[28] I must immediately point out that there is no sound basis to the respondents’ submission that Thulamela’s application has failed to meet the threshold required of the type of applications or to warrant any interdict at all. Firstly, the respondents’ suggestion that Thulamela should have dealt with them on the basis of its by-laws’ if any, and not on the basis of “The Building Regulations” is, in my view, a fallacy. That suggestion overlooks the fact that “The Building Regulations” do make provision for local authorities, generally. The same measure is, therefore, relevant to the matter at hand. Not even to mention that in their answering affidavits the respondents admitted the relevancy of the “Building Regulations” to this application.

 

[29] Secondly, whether or not they received any notices, and whether or not those would have been sufficient notices: Thulamela belatedly introduced Annexures “TLM3”, “TLM4” and “TLM5” to their replying affidavit, which documents the respondents regarded as objectionable in that they were to them new matters that Thulamela had introduced improperly, without first seeking condonation from the Court. Those were the alleged building notices that had allegedly been served on site in question by the building inspectors upon the persons that I refer to in the ensuing paragraph. It has not been denied that Thulamela introduced the alleged new matters to clarify the alleged notices “T8” and “T9” which were clearly not legible when viewed from the papers on the Court file.

 

[30] For the reasons that I shall later provide in the ensuing paragraphs, when I deal specifically with: “making out a new matter in the replying affidavit”, I have found that Building notices “TLM3” and “TLM4” and “TLM5” were admissible as evidence. It is evident from Annexures “TLM3” and “TLM4” that Eddy Makopa, who was said to have been a contractor or builder hired by the respondents, and that Mr M A P Luruli, who was said to have been the respondents’ architect who drew the plan, received the alleged notices, respectively. The alleged building notice “TLM5,” namely, the said “second final notice” was said or alleged to have been received by the builder or contractor on site who refused to give his full names.

 

[31] Prima facie, those notices were not served on the respective respondents personally. Counsel for the respondents, Advocate Machaba contended that there was no proof that the persons upon whom the notices had allegedly been served were representatives of the respondents. However, the undisputed averment by Thulamela is that during December 2022, and on 18/01/2023 respectively, the 1^st respondent did approach one of the said building inspectors with a promise to rectify the alleged deviations.  This, in my view, suggests that the respondents had come to know about the notices even before the launch of the application proceedings on 26/01/2023, notwithstanding that those services had not been served personally.

 

[32] The respondents contended that building notice “TLM3” did not contain the alleged violations as per paragraph 18 of the founding affidavit. Advocate Machaba as well submitted that such was the case with notice “TLM3”, despite the fact that Thulamela had sought to clarify notice “T8” thereby.

 

[33] Notice “TLM3” listed 3 (three) alleged violations, of which one was described as: “deviation from approved building plans”. The following remarks appeared therefrom:

“You are hereby required to suspend all construction activities with immediate effect and obtain request for approval for deviations or amended building plans prior proceeding with construction activities or build strictly as per approved building plans and specifications”.

 

That the violations as per paragraph 18 of the founding affidavit did not specifically appear in “TML3” was inconsequential, in my view. For the phrase: “deviation from the approved building plans” appeared to be a catch-all or all-encompassing.

 

[34] Lastly, it is my further view that all the pictures, also marked Annexures “TML3”, “TLM4” and “TLM5” to the replying affidavits as well showed the alleged deviations on the site as per the said notice”TLM3 and paragraph 18 of the founding affidavit. The same goes for the bigger and clearer versions of the two maps cumulatively referred to as Annexure “T7” to the founding affidavit. The maps, whose introduction was objected to by the respondents saying it was new evidence. The aforementioned pictures as well had been objected to by the respondents as new evidence. For the same reasons that I have found the alleged building notices “TLM3”, “TLM4” and “TLM5” admissible as evidence, I also found the bigger and clearer maps, namely annexures “TLM7A” and “TLM7B” and the afore-mentioned pictures admissible as evidence.

[35] On the foregoing, the point –in -limine raised by the respondents failed, and fell to be dismissed.

 

 

 MAKING OUT A NEW MATTER IN THE REPLYING AFFIDAVIT

 

[36] Mr. Machaba referred me to the judgment In All G 2G Ltd and Others v Jansen van Rensburg and Others [59644/2020] [2021] ZAGPPHC 731 (4 November 2021) at paragraph [8] wherein A C Basson J held (that): “An applicant must make out a case in its founding affidavit. Only in exceptional cases will an applicant be allowed to make out or supplement a case in its replying affidavit and may thus run the risk that those (additional) allegations be struck out.”

 

[37] Mr. Machaba also referred me to the judgment in Juta & Co Ltd and Others v De Koker and Others 1994 (3) SA 499 (TPD) at 510 G - H wherein Mccreath J quoted with approval the principle enunciated by Milner J in Shakot Investments (Pty) Ltd v Town Council of the Borough of Stanger 1976 (2) SA 701 (D) as follows:

 

“ In consideration of the question whether to permit or to strike out additional facts or grounds for relief raised in the replying affidavit, a distinction must, necessarily, be drawn between a case in which the new material is first brought to light by the applicant who knew of it at the time when his founding affidavit was prepared and a case in which facts alleged in the respondent’s answering affidavit reveal the existence or possible existence of a further ground for relief sought by the applicant. In the latter type of case the court would obviously more readily allow an applicant in his replying affidavit to utilise and enlarge upon what has been revealed by the respondent and to set up such additional ground for relief as might arise therefrom.”

 

[38] I have, however, found the practical common-sense approach adopted by the Supreme Court of Appeal in the matter of Lagoon Beach Hotel (Pty Ltd vs Christopher D Lehane NO  (235/2015) [2015] ZASCA 210; [2016] 1 All SA 660 (SCA); 2016 (3) SA 143 (SCA) (21 December 2015), to be the one that I must follow. In that judgement Leach JA (Navsa, Cachalia, Tshiqi and Willis JJA concurring) expressed the following in paragraph [16]:

 

“Then there is the fact that a voluminous replying affidavit containing a great deal of evidential material relevant to the issues at hand had been filed. Relying upon authorities such as Sooliman [7] the appellant argued that it was ‘axiomatic’ … that a reply is not a place to amplify the applicant’s case and that the new matter had been impermissibly raised by Lehane in reply, that it was evidential material to which the appellant had not been able to respond, and that it fell to be ignored. However, again, practical common sense must be used, and it is not without significance that many of the hearsay allegations complained of were admitted by the appellant in its answering affidavit. And although Lehane had been appointed the official Assignee to Dunne’s estate some thirteen months before the application was launched in the court a quo and the information set out in reply could therefore have been contained in the founding affidavits, sight must not be lost of the fact that the application was initially launched by Lehane’s deputy official, Mr D Ryan, in the absence of Lehane who was abroad at the time and unable to depose to an affidavit.  The detailed allegations made by Lehane speak of he, and not Mr Ryan having been more au fait with the facts and circumstances of the matter. Moreover, the initial application was moved as a matter of urgency, and the courts are commonly sympathetic to an applicant in those circumstances, and often allow papers to be amplified in reply as a result, subject of course to the right of a respondent to file further answering papers. Regard should also be had to the intricacy of Mr Dunne’s dealings that required intensive and ongoing investigations. Furthermore, the appellant, as respondent a quo, did not seek to avail itself of the opportunity to deal with the additional matter Lehane set out in reply, and I see no reason why these allegations should therefore be ignored”.

 

[39] A similar argument as the one raised by the appellant in Lagoon Beach Hotel above, was raised by the respondent’s in the matter at hand. The respondents sought that which they referred to as new matter introduced in the reply be struck out, and asked me to decide on the basis of the founding and answering papers only.

 

[40] Relying on Lagoon Beach Hotel matter’s practical common sense approach, I allowed Thulamela to rely on the relevant pieces of evidential material.

 

[41] The rule nisi in the present matter was issued during the course of urgent Court proceedings. And, as one would have expected, although the founding papers were not perfect, urgency dictated that such be overlooked.

 

[42] That the respondents have not sought to respond to the additional evidential material in the reply, which material Thulamela introduced because it sought to clarify some aspects in the founding papers, cannot be blamed on Thulamela. The respondents simply chose not to respond to those. Therefore, I had no reason to ignore the relevant evidential material. For that reason my decision or order was premised on the three sets of affidavits.

THE DISPUTE OF FACT

 

[43] The respondents submitted in paragraph 67 of their reply that, there was a      dispute of fact as to whether they had violated the building plans or not. They further submitted that Thulamela had simply made bald or unsubstantiated allegations against them that they failed to adhere to the approved conditions of the building plan.

 

[44] Mr. Machaba submitted in argument that the issues occasioned by the alleged unsubstantiated averments in Thulamela’s founding papers, and by the alleged lack of and or deficiencies on the building notices, cannot be resolved on paper. He also contended that Thulamela had foreseen and must have foreseen that with the alleged insufficient founding facts there would be a dispute of fact, and that a final interdict, which was of a drastic nature could not be granted.

 

[45] It bears mentioning that those submissions by the respondents only had to do with Thulamela’s founding affidavits, and nothing more. And as I have indicated hereinabove, I have considered all 3 (three) sets of affidavits.

 

[46] Counsel for Thulamela, Advocate Sikhwari submitted in argument that the respondents only raised bare denials that did not raise a real or bona fide dispute, and had even been overtaken by events. In his reply Mr. Machaba contended that Thulamela’s argument of a bare denial was incorrect, just as a matter of law.

 

[47] Both counsel for Thulamela and the respondents referred me to the judgment in Plascon –Evans Paints Ltd V Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (AD) at 634H – 635C, where the Appellate Division as it was then, expressed itself in relation to disputes of fact in motion proceedings where a final relief is sought as follows:

 

“It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the court to give such final relief on the papers before it is, however not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact…. If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under rule 6(5) g of the Uniform Rules of Court….; and the court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks….. Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers….  .”  

 

[48] As I stated, herein-above, the respondents chose not to respond to the replying affidavits, by way of further answering affidavits. Thus they left Thulamela’s averments in the reply undisputed. That, resulted in their defence being a bare denial that was not permitted in law, as will be shown in the two judgments, to which I was referred by both counsel for Thulamela and the respondents, namely, Soffiantini v Mould  1956 (4) SA150 (E) at 154 E – G, and Wightman t/a JW Construction v Headfour (Pty) Ltd and Another   (66/2007) [2008] ZASCA 6; [2008] 2 All SA 512 (SCA); 2008 (3) SA 371 (SCA) (10 March 2008) at paragraph [13];wherein the relevant Courts emphasised that a Court must adopt a ‘robust common-sense approach’ to a particular dispute ‘or otherwise the effective functioning of the Court can be hamstrung or circumvented by the most simple and blatant stratagem.’

 

[49] As I have alluded hereinabove, the respondents have not seriously attacked the alleged disputed material facts. Instead they raised a bare denial and also tried to hide behind technicalities, when they necessarily must have been familiar with the facts alleged as stated hereinabove, and thus been able to provide an answer if those facts are not true. It follows that the respondents’ denial that they have not violated the building plans has not raised a real, genuine or bona fide dispute, and thus fell to be rejected.

 

REQUIREMENTS FOR A FINAL INTERDICT

 

[50] The Court has a discretion to refuse an (final) interdict. In order to succeed in obtaining a final interdict, the applicant must establish the following requirements:-

             (a)  a clear right;

             (b)  an injury actually committed or reasonably apprehended; and

             (c)  The absence of similar protection by any other ordinary remedy. Vide: Setlogelo v Setlogelo 1914 AD 221 at 227.

 

           [51] I deal with the relevant requirements chronologically, in the following paragraphs.

 

 

 ‘A clear Right’

 

[52] A right that forms the subject matter of the application for an interdict must be a legal right: Vide Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa (Now the High Court and the Supreme Court of Appeal) 4 ed Juta & Co Ltd Cape  Town at 1066. See also Minister of Law and Order Bophuthatswana & another v Committee of the Church Summit of Bophuthatswana & others 1994 (30 SA 89 (B) at 98D – F at 66 and Wattrus N.O 1980 (1) SA 662 (T) at 673D, and it must be enforceable in law. It is also trite that that right must be established on a balance of probabilities. Vide:  Nienaber v Stuckey 1946 AD 1049 at 1054.

 

 [53] The respondents have conceded in general terms that Thulamela’s right in this instance was located in the Constitution (5) which empowered it to exercise municipal governance at local government level; further that this right is given content to by the Municipal Systems Act (6). It is also clear from “The Building Regulations” (7) that Thulamela shoulders a responsibility to regulate, to inspect and to manage the erections of buildings within its area of jurisdiction. However, in both their answer and in argument, the respondents submitted that it was not enough to refer to the source of the right when such right had not been violated __ thus maintaining their argument that they never deviated from the building plan. In paragraph 97 of their answer, the respondents specifically averred that: “There is no right, …, to simply accuse someone of violating the regulations without any proof.”

 

[54] That argument in my view conflated rights and violation issues. For there did not necessarily have to be a violation for Thulamela’s right in this instance to exist. Thulamela succeeded in establishing a clear right. I accordingly found that Thulamela had a clear right.      

 

  ‘An Injury actually committed or reasonably apprehended’  

 

[55] An injury must actually be committed or reasonably apprehended. It was enough for Thulamela to show, on a balance of probabilities, that it had grounds for a reasonable apprehension that its rights would be infringed Vide: Minister of Law and Order Bophuthatswana above, at 99A -B. See also Erasmus v Afrikaner Proprietary Mines Ltd 1976 (1) SA 950 (W).

 

[56] Again, confining themselves to the first two sets of affidavits the respondents submitted that no harm was done or no harm was reasonably apprehended. They submitted that one could not make out what harm was there, in the absence of a violation.

 

[57] The respondents were shown to have been building the shop structure in violation of their building plan. The building inspectors began to realise that the building had commenced as they were driving past the relevant site, and by then the respondents had been preparing to commence with the building of the upper floor of the building.

 

[58] That in effect meant that the respondents had not even given Thulamela a notice for compulsory inspections of the foundation excavations, the superstructure brickwork and superstructure plastering, and the like.

 

 [59] The respondents had not been deterred by the first, the first final and second final building notices.  The building inspectors even found during their site visit on 20/01/ 2023, that the building of the upper floor was going on. And that was the case, notwithstanding the fact that the first respondent had promised to rectify the deviations. That was enough for one to apprehend that the respondents would continue to work contrary to the approved plan, even with the earlier deviations still intact.

 

[60] Upon realising that the respondents were persistent in their non-complience despite notices, Thulamela decided that the respondents should be ordered by the Court to comply. In the circumstances, the injury was ongoing, and Thulamela reasonably apprehended that it would not stop, unless the respondents had been interdicted by the Court.

 

[61] Therefore, Thulamela succeeded in showing, on a balance of probabilities, that it had grounds for a reasonable apprehension that the respondents would continue to infringe its right.

 

‘The Absence of Similar protection by any other Ordinary remedy.’

 

[62] Thulamela’s counsel’s argued that there could be no other remedy, which could offer the same or similar remedy or interdictory relief. Mr. Sikhwari contended that for the same reason, not even a criminal process would have provided an adequate response to the violation of Thulamela’s right.

              

[63] Thulamela emphasised in its papers that, should the building be completed without complying with the approved building plan, its authority would suffer harm as a sphere of governance at local government level, which would result in anarchy and lawlessness in its area of jurisdiction.

 

 [64] Thulamela also submitted that once the building had been completed, all the afore-stated inconveniences, which included severe financial and health risk to it and to the public respectively, would occur. It also specified that the building would not be user-friendly, it is a death trap, in that it has one toilet and it has no parking space. It is built on columns which had not been approved. In that regard, applicant’s counsel submitted further that the deviations pose a threat to the public, the environment, and are discriminatory to persons living with disabilities.

 

               

[65] The respondents denied that the criminal process would not have served as an interdictory relief. They further reiterated that if Thulamela had issued the necessary notices, they would have complied with them.  Alternatively, they would have requested a waiver of non-complience in terms of section 18 of the “Building Regulations”. Thus, maintaining their position that they had never been served with the building notices.  The respondents denied any wrongdoing.

 

 [66] Counsel for the respondents argued further that if Thulamela had opened a criminal case against the respondents, they would have desisted from the alleged conduct. He, however, submitted that he and counsel for the applicant were merely making assumptions. That was to say that as much as the respondents were merely assuming that a criminal process would have been adequate, Thulamela was merely assuming that a final interdict would stop the respondents from further offending, as it were.

 

[67] In fact, Thulamela was not merely assuming, it had sufficient facts in its papers to prove its case. What the respondents overlooked was that they were not entitled to a second bite at the cherry.

 

[68] What the respondents do not appreciate is, that the law does not, and would not tolerate an illegality, which was also a criminal offence’. In Lester v Dlambe Municipality and Another the SAFLII Neutral Citation (514/12) [2013] ZASCA 95; [2014] 1 All SA 402 (SCA); 2015 (6) SA 283 (SCA) (22 August 2013) the Supreme Court of Appeal had the following to say in a demolition case, at paragraph [22], while remarking on the question that was raised by Alkema J in the Court a quo (22):

 

“It is easy to understand why neighbour law, which is premised on considerations of fairness, equity and justice, would afford courts a discretion on whether to order removal of the offending structure or whether to award damages. But it seems to me that a public law remedy such as a demolition order in terms of s 21, is a different matter altogether. Here it is common cause that the dwelling is an illegal structure and not a mere encroachment on a neighbour’s property. Moreover, as stated, it constitutes a criminal offence under Section 4(4) of the Act.”

 

  [69] The Court continued in paragraph [23]:

“Section 21 authorises a magistrate, on the application of a local authority or the Minister, to order demolition of a building erected without any approval under the Act. This is undoubtedly a public law remedy. Alkema J questioned how a statutory breach which gives rise to the same claim under private law or public law can afford a court a discretion under private (neighbour) law, but not under public law. The answer is simply that the law cannot and does not countenance an ongoing illegality which is also a criminal offence. To do so, would be to subvert the doctrine of legality and to undermine the rule of law.”

   [70] I did find that Thulamela established the third requirement of a final interdict also.

 

IN CONCLUSION  

 

[71]     In the result, I gave the following Order:

 

(a)  The Point-in limine raised by the 1^st to the 6^th Respondents is dismissed.

 

 (b) The Rule Nisi is confirmed with costs.

 

                                                                               

_________________________________          

N E DENGE

ACTING-JUDGE OF THE HIGH COURT

                                                                       

 

Appearances:

 

1.         For the Applicant   Advocate M S Sikhwari

                                             Advocate I R Rakhadani

Instructed by                      Nemukongwe Attorneys Inc

 

2.         For the 1^s to 6^th Respondents  Advocate T J Machaba

                                                             Advocate N Mudzanani

Instructed by                                        A R Madia Attorneys

 

3.         For the 7^th and the 8^th Respondents   No Appearances         

 

END-NOTES

1.      Number 117 of 1998.

2.        The Constitution of the Republic of South Africa, 1996. See also subsection 4(1) of the Local Government Municipal Systems Act 32 of 2000 (Municipal Systems Act”) and the National Building Regulations and Building Standards Act Number 103 of 1977 (“The Building Regulations”).

3.        n 2.

4.        n 2.

5.        n 2.

6.        Subsection 4(1) (a), (b) and (c) of Act 32/2000.

7.        n 2.

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