20 Sep 2013

Demolition and the Doctrine of Legality

Practice Area(s): Litigation |

The Supreme Court of Appeal has recently delivered a judgment granting a local authority, Ndlambe Municipality an order for the demolition of an expensive residential property within its jurisdiction. The property owner, Professor Lester engaged in protracted litigation with the municipality and his neighbour relating to the construction of the residence. The neighbour's principal objection was that the building which had been constructed obscured the panoramic view of the ocean which he previously enjoyed. This was due to the size of the building and height of its roof. It was common cause that the plans submitted by Professor Lester and pursuant to which the building had been erected, were rejected by the municipality.

The municipality, no doubt prompted by the neighbouring property owner, applied to court for a demolition order. This was granted by the Eastern Cape Provincial Division. Professor Lester then took the matter on appeal to the Supreme Court of Appeal.

In the Supreme Court of Appeal Lester argued firstly that Section 26(3) of the Constitution precluded the grant of a demolition order. Section 26(3) states 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. He also argued that Section 21 of the National Building Regulations and Building Standards Act which empowers a magistrate, on the application of a local authority, to make a demolition order should be read subject to discretion not to order demolition and that such discretion should have been exercised in his favour. The Supreme Court of Appeal rejected both these contentions. As to the constitutional point namely that Section 26(3) of the Constitution precludes demolition, the court held that this section applied to the homeless and destitute, not a case such as the present which involved a spacious and luxurious home. Particularly if there was no allegation made in the papers that Professor Lester would be homeless or destitute if the demolition occurred, as in casu.

As to the submission that the court (or a magistrate) had a discretion not to order demolition, this argument was likewise rejected on the ground that the Building Standards Act clearly requires buildings to be erected in accordance with the approved plans and provides that noncompliance is a criminal offence attracting a penalty. The court held that to import a discretion not to demolish would fly in the face of the Act and would undermine the rule of law. Consequently, the doctrine of legality precluded the court coming to the assistance of a transgressor of the Building Act. This notwithstanding the calamitous financial consequences for the owner. The outcome of this case was no doubt harsh for Professor Lester but should be read in the context that he had previously been involved in six High Court cases, (all lost by him), with the local authority and his neighbour.