Matthew Robert Michael Lester v Ndlambe Municipality and Another

The appellant, Professor Matthew Robert Michael Lester, erected a luxury dwelling in Kenton-on-Sea without approved building plans as required by s 4(1) of the National Building Regulations and Building Standards Act 103 of 1977. Over more than a decade, multiple sets of building plans were submitted, approved, reviewed, set aside, and re-approved by the Ndlambe Municipality, largely following objections by the neighbouring property owner, High Dune House (Pty) Ltd. Ultimately, by court orders granted by consent, all approvals of the later ‘Pelissier plans’ were set aside, leaving the building without any validly approved plans. Lester consented to an order requiring him to submit compliant plans within a month, failing which demolition proceedings could follow. Subsequent revised plans were rejected by the municipality for non-compliance, leading Ndlambe to apply for a demolition order under s 21 of the Act. Lester opposed the demolition and counter-applied for an order permitting alterations to the building instead.

The appeal was dismissed with costs, including the costs of two counsel, and the demolition order granted by the Eastern Cape High Court was upheld.

The case authoritatively confirms that courts have no discretion to refuse demolition under s 21 of the National Building Regulations and Building Standards Act once unlawful erection of a building is established. It clarifies the limited scope of s 26(3) of the Constitution in demolition cases involving luxury or non-indigent housing and affirms the doctrine of legality by requiring strict enforcement of statutory building controls.