THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 514/12

In the matter between

Reportable

MATTHEW ROBERT MICHAEL LESTER

APPELLANT

and

NDLAMBE MUNICIPALITY

FIRST RESPONDENT

HIGH DUNE HOUSE (PTY) LTD

SECOND RESPONDENT

Neutral citation: Lester v Ndlambe Municipality (514/12) [2013] ZASCA 95
(22 August 2013)

Coram:
MTHIYANE DP, CACHALIA, THERON and MAJIEDT JJA,
ZONDI AJA

Heard:
15 MAY2013

Delivered:
22 AUGUST 2013

Summary:
Local Government – demolition of a building erected
without approved building plans – court not vested with any discretion
where demolition applied for in terms of s 21 of the National Building
Regulations and Building Standards Act 103 of 1977 – doctrine of
legality
requires
courts
to
enforce
statutory
prohibitions
the
contravention of which constitutes a criminal offence

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Eastern Cape High Court, Grahamstown(Alkema J, sitting
as court of first instance):

The appeal is dismissed with costs, including the costs of two counsel, where
so employed.

______________________________________________________________

JUDGMENT
______________________________________________________________

MAJIEDT JA (MTHIYANE DP, CACHALIA and THERON JJA and ZONDI
AJA concurring):

Introduction:

[1] This appeal concerns the demolition of a luxury home in Kenton-on-
Sea (Kenton) on the Eastern Cape coast. The home belongs to the appellant,
Professor Matthew Robert Michael Lester. The first respondent, the Ndlambe
Municipality, under whose jurisdiction Kenton falls, applied for and was
granted a demolition order in respect of the appellant‟s home by Alkema J in
the Eastern Cape High Court, Grahamstown. The learned judge also
dismissed the appellant‟s counter-application to allow him to alter the house
and made costs orders in accordance with these outcomes. This appeal is
with his leave.

[2] The second respondent, High Dune House (Pty) Ltd, is a private
company, whose shareholders and directors are Mr and Mrs Haslam. Their
holiday home is registered in the company‟s name and is adjacent to the
appellant‟s residence. Mr Haslam has deposed to all the affidavits on the

company‟s behalf. For the sake of convenience I shall refer to the various
parties as „Ndlambe‟, „Lester‟ and „Haslam‟. Ndlambe‟s seat as local authority
is in the nearby town of Port Alfred.

The factual matrix:

[3] This case has a long, sorry history, which includes seven high court
applications, including the one presently on appeal, extending over a period of
more than a decade. All these applications culminated in orders against
Lester, either by consent or by the court finding against him. As these
applications form an integral part of the factual backdrop to this matter, I
consider it necessary to recount them in some detail. The facts are largely
undisputed. Most importantly, it is common cause that Lester‟s dwelling,
which is the subject of this dispute, has been erected unlawfully, without any
approved building plans as required by s 4(1) of the National Building
Regulations and Building Standards Act 103 of 1977. I shall revert to this and
other relevant provisions of the Act presently.

[4] Kenton is a quaint seaside village, on the coastal road between Port
Elizabeth and East London, the R72. It is flanked by this road, two rivers and
the Indian Ocean. Its inhabitants consist mostly of retirees, holidaymakers and
a few permanent residents. Lester, a professor in tax law at Rhodes
University in Grahamstown, (some 60 kilometres from Kenton by road), falls
into the lastmentioned category. It is undisputed that the property is his
primary residence. As stated, the Haslams‟ neighbouring property is their
holiday home. It is located (as the company‟s name suggests) on the flat top
of a dune, with Lester‟s property to the south, lower down the sloping dune.
Lester acquired his property in 1997 from his mother and aunt, to whom it had
been bequeathed by Lester‟s grandfather. The property initially provided basic
holiday accommodation but, upon joining Rhodes University in 1998, Lester
decided in 2001 to make Kenton his permanent home. This necessitated the
construction of a bigger house higher up the slope of the dune. This is when
the trouble started.

[5] Before the construction began, the Haslams had sweeping, panoramic
views over the ocean from their dwelling, spanning from the west to the east.
This changed when Lester began building. Lester first engaged the
architectural services of Ms Pollos Purden to design a dwelling higher up from
the existing rudimentary dwelling. She designed a single storey pitched roof
house. Her building plans were approved by Ndlambe on 3 May 2002 (the
Purden plans). The design envisaged a split level home. It has erroneously
been described by some of the parties as a „double-storeyed‟ home, though
nothing turns on this issue. Lester commenced building operations on the
Purden plans. Haslam obtained copies of the Purden plans from Ndlambe‟s
officials, after he saw foundations being cast for the new dwelling. He made it
plain to the officials at that early stage that he had an interest in the matter
and that he required to be notified of Lester‟s building plans, prior to their
approval. Haslam raised an objection to the construction of a second,
separate dwelling higher up on the dune because it contravened Lester‟s title
deed restriction which prohibited more than one dwelling on the same
property. Lester was notified of this objection, but chose to continue building,
pending a council decision.

[6] These events led to the first high court application in which Haslam
applied for an interdict restraining Lester from continuing building operations,
pending the outcome of review proceedings. The application was successful
before Pickering J who interdicted Lester from building further pending
approval of amended plans. Of significance is that Lester, in his answering
affidavit, acknowledged that in the event of a successful review he would be
obliged to demolish the existing structure for lack of approved plans. On
Lester‟s instructions, Ms Purden amended the plans to convert the old
building to a boathouse and outbuildings, thus overcoming the prohibition
against the construction of more than one dwelling on the property. The
amended Purden plans were approved on 8 November 2002. It is common
cause that these plans remain unchallenged and valid. One would have

thought that Lester, in view of what had happened, would have contented
himself with this situation and to have proceeded with the building on these
plans. This was not to be. Due to a change in his personal circumstances,
which entailed Lester having to create additional space for his frail mother in
his new house, he discarded the Purden plans altogether, and appointed
another architect, Mr Sam Pelissier, with a mandate to design a double-storey
building, using the Purden plans‟ footprint.

[7] Pelissier fulfilled his mandate by designing a dome-shaped roof in
place of the envisaged pitched roof of the Purden plans to cater for the wind,
height and shade factors (the Pelissier plans). It is important to note that these
plans varied significantly from the Purden plans in respect of the general
architectural design. In particular it had a bigger roof which considerably
increased the height of the building. The Pelissier plans were taken to the
relevant Ndlambe officials in Port Alfred for approval by Lester himself on 17
July 2003. In Lester‟s own words, he “walked the officials of the various
[Ndlambe] departments through the plans”, resulting in them being approved
on the same day. Neither Ndlambe nor Lester gave notice to Haslam of the
new Pelissier plans despite being undeniably aware of Haslam‟s interest in
the matter. So, when construction of the new dwelling commenced, Haslam,
completely unaware of the changed circumstances, assumed that building
was still proceeding under the unchallenged Purden plans of November 2002.
When he realised that this was not so during October 2003 he launched the
second application to have the Pelissier plans reviewed and set aside.

[8] Several grounds for review were advanced by Haslam in the second
application amongst others the fact that Ndlambe had failed to appoint a
building control officer whose tasks in terms of the Act included the furnishing
of a report on Lester‟s building operation. Ndlambe conceded this omission
and consented to an order before Jennett J on 25 June 2004, setting aside
the approval of the Pelissier plans and referring them to Ndlambe for

reconsideration, following the appointment of a building control officer and
upon notice to Haslam. Lester also consented to the order.

[9] Ndlambe approved the Pelissier plans again during November, subject
to certain conditions, which included the change in the conditions in the title
deed. This prompted Haslam to launch the third application on 24 February
2005, for the review and setting aside of the conditional approval of the plans.
Several grounds were relied upon for the review, of which the principal ground
was that Ndlambe had no authority to approve plans „conditionally‟, and that
its purported „conditional approval‟ was ultra vires s 7 of the Act. Goliath AJ
made an order by consent on 22 September 2005, setting aside the Pelissier
plans yet again and referring them back to Ndlambe for fresh consideration.

[10] The Pelissier plans were approved by Ndlambe for the third time on 14
February 2006, after it had received submissions from all interested parties
and after it held a hearing on 25 November 2005. And so the fourth
application was made for a review of this latest approval on substantially the
same grounds as in the previous application. Jones J made an order by
consent between the parties on 29 June 2007, setting aside this approval.This
time, Jones J did not remit the matter to Ndlambe, but issued a declarator to
the effect that the Pelissier plans (of July 2003) „be not approved‟. Lester‟s
counter-application was dismissed. In effect Jones J‟s order required the
submission of new building plans, a fact which Ndlambe acknowledged by
passing an important resolution on 31 March 2008. The relevant part reads:
„That it be noted that the building on Erf 20 [Lester‟s dwelling] exists without plans, no
plans have subsequent to Jones J‟s by the owner of Erf 20 for approval.‟
The fifth application, in which Haslam sought a mandamus to compel
Ndlambe to make a decision following the judgment of Jones J, was
withdrawn when Haslam became aware of the resolution. But he was not
satisfied with the terms of the resolution and brought the sixth application for
the reviewing and setting aside of the resolution and substituting it with an
order directing Lester to submit, within one month, building plans that comply

with all the applicable statutory and zoning prescripts failing which Ndlambe
would apply in terms of s 21 of the Act for the dwelling to be demolished.

[11] On 22 April 2010 Plasket J made an order by agreement between the
parties. The order granted Haslam the relief set out in the preceding
paragraph. The significance of this order was twofold:
(a)
Lester was placed on terms to submit plans within one month that
complied with all statutory and zoning requirements; and that,
(b)
the spectre of a demolition order being sought in the event of non-
compliance, loomed large.
It bears emphasis that Lester had consented to Plasket J‟s order. The whole
sorry saga surrounding Lester‟s dwelling raised the ire of several members of
the community, forcing Lester to decamp to Cape Town for a brief sojourn. It
is not in issue however, that the dwelling in Kenton remained his primary
residence.

[12] Lester sought to comply with the Plasket J order by submitting various
sets of amended and revised plans to Ndlambe, none of which met with the
latter‟s approval. The final revised plans envisaging the removal of the top
floor and the domed roof to be replaced with a flat roof in order to achieve a
reductionin overall height and size, were submitted on 15 September 2010.
On 5 December 2010 Ndlambe adopted the recommendations of the building
control officer and resolved in terms of s 7(1)(b) of the Act not to approve the
final plans since they did not comply with the Plasket J order. Lester was
notified of this outcome on 13 January 2011 and the demolition application
followed on 21 January 2011. As I have mentioned, Lester instituted a
counter-application to permit him to alter the dwelling so as to avoid the
demolition order.

The judgment of the court below

[13] The central disputes between the parties in the court below concerned
the questions:
(a) whether the existence of the requisite jurisdictional facts ipso facto
warrants a demolition order under the Act;
(b) whether a court has any discretion at all in deciding whether or not to order
demolition where there has been non-compliance with the relevant statutory
provisions;
(c) if such a discretion exists, whether it is a wide or narrow discretion; and
(d) lastly, whether an alteration of the dwelling, as sought by Lester, should be
ordered instead.

[14] Alkema J made the following principal findings:
(a)
Lester was no innocent victim of Ndlambe‟s incompetence;
(b)
Absent any internal appeals under s 9 of the Act or challenges by way
of reviews under the Promotion of Administrative Justice Act 3 of 2000
(PAJA) these decisions remain valid and legally binding until set aside
on appeal or review;
(c)
Lester‟s property is, both judicially and administratively, an unlawful
structure in terms of the Act, thus entitling Ndlambe to seek an order
authorising it to have the dwelling demolished in terms of s 21 of the
Act;
(d)
Whereas Ndlambe‟s case against Lester turns on s 4(1) read with s 21
of the Act, Haslam relies on both the common law principles of
neighbour law and the statutory contraventions;
(e)
In all cases where a demolition order is sought, the court retains a
discretion which has to be exercised judicially, ie in accordance with
the disproportionality of prejudice test, bearing in mind the dictates of
legal and public policy;

(f)
In applying the disproportionality of prejudice test, Lester‟s own
conduct and the absence of any evidence that he would not be able to
afford other housing, does not constitute sufficient prejudice, nor can
he avail himself of the rights enshrined in s 26(3) of the Constitution;
(g)
Legal and public policy required the court to enforce the principle of
legality and to uphold the rule of law by granting the demolition order.

[15] I do not propose dealing with all these findings. For the reasons that
follow, I agree that the demolition order was warranted, but I am of the view
that Alkema J chose an incorrect path in reaching his conclusion. He found
firstly that neighbour law principles are applicable in this case and secondly
that a court has a discretion in all demolitions sought under the Act. In this
court Lester, understandably so, supported the finding that a court has a
discretion, but contended that such discretion should have been exercised in
his favour, by granting the counter-application for alteration of the dwelling.
Lester‟s counsel relied for these submissions on s 26(3) of the Constitution
and the common law‟s neighbour law principles for the existence of such a
discretion. This discretion, contended counsel, was either a wide discretion,
particularly if s 26(3) of the Constitution applies, or what he termed a „residual
discretion‟ which he contended emanates from the Act itself. I shall deal with
these submissions separately by first examining the constitutional basis and
then by considering whether neighbour law applies at all. Closely associated
with the latter aspect is the question whether the statutory provisions
themselves permit such a discretion, bearing in mind the principle of legality.

Does s 26(3) of the Constitution afford a court a discretion in demolition
cases?

[16] Section 26 of the Constitution reads as follows:
„Housing
26 (1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation of this right.‟

(3) No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.‟
It was submitted on behalf of Lester that the magistrate‟s authority (or in this
instance that of the high court) to order a demolition under s 21 of the Act had
to be read with s 26(3) of the Constitution, which requires „all relevant
circumstances‟ to be taken into account before making the order. This
confers, so it was contended, a wide discretion on a magistrate when faced
with such an application to consider all the relevant circumstances in this case
before ordering the demolition of Lester‟s dwelling. For the reasons that
follow, I consider this submission to be misplaced.

[17] Section 26(3) must not only be read in its historical context, ie as a
bulwark against the forced removals, summary evictions and arbitrary
demolitions of the shameful past dispensation, but also together with s 26(1)
and (2), since s 26 must be read as a whole. Mokgoro J, writing for a
unanimous court in Jaftha v Schoeman; Van Rooyen v Stoltz1 emphasized
that:
„(s)ection 26 must be seen as making that decisive break from the past. It
emphasises the importance of adequate housing and in particular security of tenure
in our new constitutional democracy.‟2
The protection afforded in s 26(3) must therefore always, without exception,
be read against the backdrop of the right to have access to adequate housing,
enshrined in s 26(1). Thus where a person, facing a demolition order, does
not adduce any evidence that he or she would not, in the event of his or her
dwelling being demolished by order of a court, be able to afford alternative
housing, s 26(1) is of no avail to him or her. Lester, as the court below
correctly found in my view, is in precisely this position. Apart from alluding to
the „calamitous financial implications‟ which demolition of his dwelling (which
he estimates to be worth around R8 million) would entail, he does not state
anywhere in his papers that he would be rendered homeless and destitute by

1 Jaftha v Schoeman; Van Rooyen v Stoltz 2005 (2) SA 140 (CC) para 28.
2 Ibid, para 29.

the demolition.3 This court pointed out in Standard Bank of South Africa Ltd v
Saunderson4 that what constitutes „adequate housing‟ is always a factual
enquiry and that executing a writ of execution in respect of a luxury home,
which Lester‟s dwelling undeniably is, has no bearing on the right of access to
adequate housing. And the fact that the dwelling sought to be demolished is
the person‟s primary residence, as is the case here, does not detract from this
principle. The cardinal question is whether demolition of Lester‟s property
would infringe upon his right to access to adequate housing. The answer, on
the papers before us, must be an emphatic „no‟. Lester‟s counsel contended
that such an interpretation of s 26(3) would render the words „. . . an order of
court made after considering all the relevant circumstances‟ nugatory. I
disagree. Even taking into account ‟relevant circumstances‟ (which the court
below in any event did), the primary consideration is whether the right of
access to adequate housing would be compromised by the demolition. That is
the import and effect of the judgment in Jaftha and the plain, unambiguous
meaning of s 26. I turn to consider the second submission, namely that the
source of the discretion not to order a demolition is to be found in the statute
and in the common law principles of neighbour law, which are based on
principles of fairness and equity.

The statutory provisions and neighbour law as possible sources of a
court’s discretion

[18] Alkema J relied heavily on the case of Benson v S A Mutual Life
Assurance Society 5 as authority for his finding that he does have a discretion
whether to order demolition or not. Lester‟s counsel has correctly conceded
that Benson does not lend such support, since it concerned the discretionary
remedy of specific performance in breach of contract instances. The passage
relied upon (783C-E) in particular, is clearly about this aspect and not about a
discretion concerning demolition orders. The judge below appears to have
given recognition to this in his judgment granting leave to appeal to this court,

3Lester‟s counsel was driven to an oblique concession in this regard in the course of his
argument.
4Standard Bank of South Africa Ltd v Saunderson 2006(2) SA 264 (SA) para 17.
5Benson v S A Mutual life Assurance Society 1986 (1) SA 776 (A) at 783C-E.

acknowledging that „[Benson] dealt with a discretion in cases of specific
performance and not in demolition orders‟ and later on, that he had exercised
his discretion ‟on an extremely narrow, and perhaps novel basis‟.

[19] A useful starting point, to my mind, in ascertaining whether there are
other sources for such a discretion in demolition cases, is the statute itself.
The Act‟s objective is to provide uniformity in the law relating to the erection of
buildings in the area of jurisdiction of local authorities and to prescribe building
standards. Section 4(1) reads as follows:
„(1) 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.‟
Section 4(4) renders the contravention of s 4(1) a criminal offence with a
penal sanction of a fine not exceeding R100 for each day on which the
offender was engaged in erecting the (illegal) building. Section 9 makes
provision for an appeal against decisions of local authorities. For present
purposes the refusal to grant approval of building plans is appealable – such
appeal is to a review board. Section 21 reads as follows:
‟21. Order in respect of erection and demolition of buildings:
Notwithstanding anything to the contrary contained in any law relating to magistrates‟
courts, a magistrate shall have jurisdiction, on the application of any local authority or
the Minister, to make an order prohibiting any person from commencing or
proceeding with the erection of any building or authorizing 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 authorization
granted thereunder.‟

[20] It is plain that s 21 must be read with ss 4(1) and 4(4) of the Act. As
stated, it was common cause before Alkema J that Lester‟s property is an
illegal structure having been erected without approved building plans. It was
therefore at risk of demolition by order of court at the instance of Ndlambe.
Both Nlambe and Haslam (in particular) adopted the stance in the court below
and again before us that a court has no discretion in the circumstances and

must order demolition under s 21 once illegality is established. Lester‟s
counsel valiantly sought to persuade us that such a discretion is to be found in
the section itself and if not, that the neighbour law principles should be
„imported‟ into the section. He contended that s 21 implicitly permits partial
demolition in the present case, as sought by Lester in his counter-application.
These submissions are devoid of merit. First and foremost a mere reading of
the provision makes it plain that there is no warrant for reading such implicit
discretion into it. What is more, s 4(4) read with s 4(1), creates a criminal
offence with a penal sanction in the event of a building being erected without
approved building plans, an aspect which militates strongly against such
discretion. I shall revert to the provisions of s 4 under the next rubric in which I
will discuss the applicability of neighbour law and the doctrine of legality.
Counsel was unable to expound on the legal basis for and the modalities of
the importation of neighbour law principles into the provisions contained in s
21. It comes as no  surprise that there is a complete dearth of authority for this
novel proposition. Counsel was unable to point us to such authority and I am
not aware of any. The conclusion that the statutory provision itself does not
lend itself to such a discretion is unassailable. The language of the provision
gives a magistrate no latitude not to order the demolition once the
jurisdictional fact, namely that the building was erected contrary to the Act, is
established. During argument Lester‟s counsel contended that the provision
must at a minimum be read to give a residual discretion  to the magistrate. But
he was unable to advance authority for this proposition and it too is devoid of
merit. I turn to a consideration of neighbour law principles and the doctrine of
legality.

The relevance of neighbour law and the role of the doctrine of legality

[21] Alkema J commenced his judgment by stating that this case „involve
issues of neighbour law, public law and administrative law‟. Lester‟s counsel
vigorously endorsed the view that neighbour law principles apply here,
understandably so. But this is not a neighbour law case at all.  The
misconception in this regard stems from the Haslams‟ involvement in the
case. To illustrate why this was misconceived, a brief history of how they

joined the fray is required. Haslam (and I am still referring to him here
representing the second respondent company) was initially cited in Ndlambe‟s
demolition application as one of several respondents with an interest in the
matter. Haslam, however, successfully and without any opposition thereto,
applied for joinder as second applicant with Ndlambe in the main application.
He did so because he supported fully the relief sought by Ndlambe. More
importantly, in so doing, Haslam did not rely on any neighbour law principles,
nor did he seek any additional remedies based on neighbour law. Haslam
made common cause with Ndlambe in seeking public law remedies, ie
demolition in terms of s 21 of the Act and ancillary relief. In the supporting
affidavit in the joinder application, Haslam pertinently states that „High Dune
(ie second respondent) has a legal interest in ensuring that Ndlambe takes all
appropriate steps to remedy any failure by Lester to comply with all statutory
zoning and other requirements‟. Alkema J wrongly found that „the issues
raised by the joinder (of Haslam), on the other hand, are essentially matters of
neighbour law, which is a branch of the law of obligations, and which call into
play certain legal principles which do not arise as between Ndlambe and
Lester, but became relevant between Haslam and Ndlambe.‟ As a
consequence of this misconception, a significant part of the judgment of the
court below deals with neighbour law principles and cases. I intend restricting
myself to a few of them only, to illustrate why this is not a neighbour law case
and to contrast it with the doctrine of legality.

[22] It is plain that Ndlambe approached the court below for a public law
remedy, namely a s 21 demolition. It simply sought enforcement of a statutory
right flowing from a statutory contravention, which also amounts to a criminal
offence. And Haslam supported the relief sought by the council. Lester‟s
counsel‟s submission appears to be that there is no reason not to apply the
common law principles of neighbour law, which give courts a wide and
equitable discretion to avoid granting a demolition order in respect of
encroaching structures in the context of a public law remedy. Neighbour law
has long recognized that in matters such as encroachment, courts have a
discretion to award damages instead of ordering the removal of the offending

building or structure, the deciding factor being the disproportionality between
removal of the encroachment measured against the damage or inconvenience
suffered by a plaintiff. There is an interesting academic discourse on whether
the English law influence of equity finds application in this discretionary
power, but it need not be discussed at all in this instance6. In Rand Waterraad
v Bothma7, Hattingh J undertook a detailed analysis of this discretion in
encroachment cases. Numerous cases and the Roman and Roman Dutch
authorities are collated in the judgment. Brevitatis causa, it will suffice to
summarize the conclusions reached by Hattingh J at the end of his detailed
discussion8 (loosely translated and condensed):
(a)
the sui generis nature of neighbourly relationships resulted in the
development of legal rules based on equity in our common law;
(b)
the emphasis in neighbour law is always on the protection of the
neighbourly relationship as such, rather than the individual interests of
every neighbour separately;
(c)
neighbour law principles and precepts are aimed at attaining a just and
equitable result and the correct application thereof ought always to lead
to a result which satisfies one‟s sense of justice.
The law reports are replete with instances where the courts have held that
such a discretion exists in neighbour law cases.9 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 s4(4) of the Act.

6See, inter alia, J B Cilliers and C G van der Merwe „The „‟year and a day rule‟‟ in Sourth
African Law: do our courts have a discretion to order damages instead of removal in the case
of structural encroachments on neighbouring land?‟ (1994) THRHR 587 at 592.
7Rand Waterraad v Bothma 1997(3) SA 120 (O) at 130F-138G.
8 Ibid, at 138D-G.
9See inter alia: Hornby v Municipality of Roodepoort - Maraisburg and Arthur 1918 AD 278 at
296 – 298 (in this dictum Solomon JA recognizes the existence of a discretion on principles of
equity in English law, but appears to leave open the question whether those principles apply
in our law as well); Johannesburg Consolidated Investment Co Ltd v Mitchmor Investments
(Pty) Ltd 1971 (2) SA 397 (W) at 405-407.

[23] Section 21 authorizes 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. In United Technical Equipment Co (Pty) Ltd v
Johannesburg City Council10 the Full Court was seized with an appeal against
the granting of an interdict in the Local Division in terms whereof the appellant
company (qua respondent a quo) was restrained from using property which
was zoned residential in terms of the Town Planning Scheme, for business
purposes (offices). It was common cause that by using the property as offices,
the appellant was committing an offence. The appellant‟s case was that the
court should have suspended the interdict pending the final dismissal of his
application to the Administrator for rezoning of the property. Harms J, writing
for the Full Court, considered whether a court has a general discretion to
grant or refuse an interdict. The learned judge pointed out that in the leading
case on interdicts, Setlogelo v Setlogelo11, this court granted a final interdict,
having been satisfied that all the requisites for the granting of a final interdict
had been met, without considering at all whether it should, in the exercise of a
discretion, refuse the interdict. Harms J also referred to Peri-Urban Areas
Health Board v Sandhurst Gardens (Pty) Ltd12, where the court refused to
suspend an interdict under similar circumstances because, as Clayden J put
it: „where the breach of law interdicted is a breach of a statute a stricter
approach is adopted.‟13 As Harms J correctly explains, what Clayden J meant
to convey was not that there is a rule that a statutory right is stronger than a
common law right, but simply that the statutory breach referred to is a breach

10United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987(4) SA 343 (T).
11Setlogelo v Setlogelo 1914 AD 221.
12Peri-Urban Areas Health Board v Sandhurst Gardens (Pty) Ltd 1965 (1) SA 683 (T).
13Ibid, at 685A.

which is visited by criminal sanctions (as is the case here). The following
dictum of Harms J is apposite: „It follows from an analysis of these cases that
discretion can, if at all, only arise under exceptional circumstances.
Furthermore, I am not aware of any authority which would entitle the court to
suspend the operation of an interdict where the wrong complained of amounts
to a crime‟14.

[24] Courts have a duty to ensure that the doctrine of legality is upheld and
to grant recourse at the instance of public bodies charged with the duty of
upholding the law. In Standard Bank of South Africa Ltd v Swartland
Municipality15 Moosa J had to deal with an application that a demolition order,
issued in the Malmesbury Magistrates‟ Court, be set aside and for Standard
Bank, as mortgagee, to be joined. In stressing the courts‟ duty in enforcing
demolition orders, the learned judge stated that:
„The unauthorised and illegal conduct of the third respondent (in unlawfully erecting a
structure without approved plans) is contra boni mores and contrary to public policy,
and cannot be condoned by the court. It militates against the doctrine of legality,
which forms an important part of our legal system, and more especially since the
Constitution became the supreme law of the country‟16.
Moosa J referred to the oft quoted dictum of Chaskalson CJ in
Pharmaceutical Manufacturers of SA: In re Ex parte President of the Republic
of South Africa and others17, which bears repetition:
„The exercise of all public power must comply with the Constitution, which is the
supreme law, and the doctrine of legality, which is part of that law‟.

The doctrine of legality as part of the rule of law

14United Technical Equipment Co (Pty) Ltd v Johannesburg City Council, supra, at 347F-H.
15Standard Bank of South Africa Ltd v Swartland Municipality 2010(5) SA 479 (WCC); see
also Standard Bank of South Africa Limited v Swartland Municipality 2011 (5) SA 257 (SCA).
16Ibid, para 22.
17Pharmaceutical Manufacturers of SA: In re Ex parte President of the Republic of South
Africa 2000 (2) SA 674 (CC) para 20. See also: Minister of Justice and Constitutional
Development v Chonco 2010 (4) SA 82 (CC) para 27 and cases cited there.

[25] Wade and Forsyth correctly point out that in administrative law, the rule
of law encapsulates, inter alia, the notion that „government should be
conducted within a framework of recognized rules and principles which restrict
discretionary power‟18 It is self-evident that this principle encompasses all
three arms of government, ie the executive, the legislature and the judiciary.
Equally obvious is that it applies to the three spheres of government, ie
national, provincial and local government. Yvonne Burns explains that this
doctrine ensures in the sphere of public law that „(a) the exercise of public
power by the administration conforms to constitutional principles; (b) public
authorities comply with specific duties and obligations in the exercise of their
discretionary powers and (c) the state and its officials obey the law to ensure
good and fair administration‟.19

[26] Local government, like all other organs of state, has to exercise its
powers within the bounds determined by the law and such powers are subject
to constitutional scrutiny, including a review for legality. In Fedsure Life
Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council
1999 (1) SA 374 (CC) 20 the court expounded on the doctrine of legality as an
essential component of the rule of law as follows:
„These provisions [ie ss 174(3) and 175(4) of the Constitution] imply that a local
government may only act within the powers lawfully conferred upon it. There is
nothing startling in this proposition – it is a fundamental principle of the rule of law,
recognized widely, that the exercise of public power is only legitimate where lawful.
The rule of law – to the extent at least that it expresses this principle of legality – is
generally understood to be a fundamental principle of constitutional law.‟21 (footnote
omitted).
The power to approach a court for a demolition order in s 21 is unquestionably
a public power bestowed upon local authorities. As such, its exercise must
conform to the doctrine of legality. Put differently, a failure to exercise that

18Wade and Forsyth Administrative Law 7ed (1994) 24.
19Y Burns „A rights-based philosophy of administrative law and a culture of justification (2002)
17 SAPL: 279 at 285.
20 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council
1999 (1) SA 374 (CC) para 40.
21Ibid para 56; see also para 58.

power where the exigencies of a particular case require it, would amount to
undermining the legality principle which, as stated, is inextricably linked to the
rule of law. See AAA Investments (Pty) Ltd v Micro Finance Regulatory
Council and another where the court held as follows:
„(t)he doctrine of legality which requires that power should have a source in law, is
applicable whenever public power is exercised . . . . Public power . . . can be validly
exercised only if it is clearly sourced in law‟22.
In National Director of Public Prosecutions v Zuma23 Harms DP emphasized
that the courts are similarly constrained by the doctrine of legality, ie to
exercise only those powers bestowed upon them by the law.24 The
concomitant obligation to uphold the rule of law and, with it, the doctrine of
legality, is self-evident. In this regard, the court below was constrained by that
doctrine to enforce the law by issuing a demolition order once the
jurisdictional facts for such an order were found to exist.

[27] I conclude by reverting to what Harms J said in United Technical
Equipment, supra, with regard to the City Council‟s obligations to enforce the
law in the face of an ongoing illegality being perpetrated by the appellant
company in that case:
„The respondent has not only a statutory duty but also a moral duty to uphold the law
and to see to due compliance with its town planning scheme. It would in general be
wrong to whittle away the obligation of the respondent as a public authority to uphold
the law. A lenient approach could be an open invitation to members of the public to
follow the course adopted by the appellant, namely to use land illegally with a hope
that the use will be legalise in due course and that pending finalisation the illegal use
will be protected indirectly by the suspension of an interdict.‟25
Ndlambe is in exactly the same position as the respondent in the
aforementioned case – it was statutorily and morally duty bound to approach
the court below for a demolition order in order to uphold the law. The court a
quo, in turn, had a concomitant duty to uphold the doctrine of legality, by

22 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC).
23National Director of Public Prosecutions v Zuma 2009 (2) SA 277 SCA 28.
24 Ibid para 15.
25United Technical Equipment Co (Pty) Ltd v Johannesburg City Council, supra, at 348I-J.

refusing to countenance an ongoing statutory contravention and criminal
offence.

Conclusion:

[28] As stated, Lester has erected an unlawful structure on his property –
this fact is unchallenged and common cause. The jurisdictional basis for a
demolition order in terms of s 21 has therefore been established. All
administrative actions, such as the unanimous resolution of Ndlambe‟s full
council on 5 December 2010 not to approve the final revised plans, remain
valid and legally binding until set aside on review or appeal. Absent any
challenge on appeal, internally in terms of s 9 of the Act to a review board, or
on review in terms of PAJA to a competent court, that resolution had legal
consequences. In Camps Bay Ratepayers’ Association and another v
Harrison and the Municipality of Cape Town, the Constitutional Court,26 in
referring with approval to Oudekraal Estates (Pty) Ltd v City of Cape Town27
said that:
„[A]dministrative decisions are often built on the supposition that previous decisions
were validly taken and unless that previous decision is challenged and set aside by a
competent court, its substantive validity is accepted as a fact. Whether or not it was
indeed valid is of no consequence. Applied to the present facts it meant that the
approval of the February 2005 plans must be accepted as a fact. If the footprint issue
was part of that approval, that decision must likewise be accepted as a fact unless
and until it is validly challenged and set aside‟.
See also: Member of the Executive Council for Health, Eastern Cape v Kirland
Investments28. I have already found that the court below erred in finding that it
had a discretion whether or not to issue a demolition order. Absent such
discretion, the court below simply had to uphold the rule of law, refuse to
countenance an ongoing statutory contravention and enforce the provisions of
the Act.

26Camps Bay Ratepayers and Residents’ Association v Harrison 2011 (4) SA 42 (CC) para
62.
27Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) para 31.
28Member of the Executive Council for Health, Eastern Cape v Kirland Investments (Pty) Ltd
t/a Eye & Laser Institute (473/12) [2013] ZASCA 58] (16 May 2013) para 20.

[29] I turn to the counter-application. It was conceded on Lester‟s behalf
that in the event of this court finding that the court below was correct in
ordering demolition as sought by Ndlambe, supported by Haslam, the
counter-application would inevitably be doomed to failure. In the counter-
application Lester sought an order that the dwelling be demolished partly only
to the extent that its design would then accord with the plans submitted by him
to Ndlambe on 18 May 2010, alternatively 13 December 2010. But Ndlambe‟s
council has already considered these final revised plans and the
accompanying representations and has rejected them. As stated, that
resolution remained extant and legally binding as a valid administrative act,
unless and until set aside by a competent court. Moreover, it is undisputed
that the final 2010 plans still offend the existing building regulations because
of the height of the roof. As pointed out above, an order for partial demolition
as sought by Lester, would amount to the sanctioning of an ongoing illegality
and criminal offence, in the face an existing valid administrative decision. This
can never be countenanced by a court. The counter-application was therefore
correctly dismissed by the court a quo.

[30] Alkema J made certain adverse findings against Lester, inter alia, as
stated above, that he was not the mere innocent victim of Nlambe‟s
incompetence, as contended by counsel, and further that the learned judge
had „a sense, nothing more, that Lester may have orchestrated the situation in
which he now finds himself‟. In my view it is not necessary to come to any
conclusion on these aspects. The common cause material facts suffice,
namely that the structure was illegal and that Lester had, in the face of six
preceding court orders against him, elected to continue building operations
without approved plans. As stated (see para 6 above), Lester already
acknowledged as early as 2002 during the first high court application before
Pickering J, in his answering affidavit that, in the event of a successful review
before the high court, he would be obliged to demolish the existing structure
for lack of approved plans. And, as stated, the spectre of demolition loomed
large in the order of Plasket J (see para 11 above).

[31] One is acutely aware of the financial calamity, inconvenience and
disruption which the demolition of what is plainly and expansive, luxurious
dwelling, and a primary residence to boot, would cause Lester. But the
upholding of the doctrine of legality, a fundamental component of the rule of
law, must inevitably trump such personal considerations. The appeal must
therefore be dismissed with costs, including the costs of two counsel where so
employed.

[32] In the result I make the following order:

The appeal is dismissed with costs, including the costs of two counsel, where
so employed.

________________________

S A MAJIEDT

JUDGE OF APPEAL

APPEARANCES

For Appellant:
R G Buchanan SC

Instructed by:

DLA Cliffe Dekker Hofmeyer, Johannesburg

Webbers, Bloemfontein

For 1st Respondent:
I J Smuts SC

Instructed by:

Wheeldon Rushmere & Cole, Grahamstown

Symington & De Kok, Bloemfontein

For 2nd Respondents:
EAS Ford SC with TJM Paterson SC -

Instructed by:

Rushmere Noach Inc, Port Elizabeth

McIntyre & Van Der Post, Bloemfontein