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

BSB International Link CC (BSB) erected a building on Erf 426, Parkmore Township, Gauteng, measuring 991m². Readam South Africa (Pty) Ltd (Readam), an adjacent property owner, alleged that the building was erected in contravention of the Sandton Town Planning Scheme (1980) in two respects: (a) the building exceeded the maximum permissible coverage of 60% of the property (measurements showed it covered 86.13% or 853.58m²); and (b) inadequate parking was provided (only 10 parallel bays instead of the required 35 bays). Readam also alleged that building plans were either not approved or unlawfully approved by the City of Johannesburg Metropolitan Municipality. The municipality, though cited as first respondent, filed no answering affidavit and did not participate in proceedings. BSB continued building despite warnings, applied to amend the scheme to permit 85% coverage (which was refused in April 2014), and launched a counter-application claiming an inadequate record prevented proper defence. The high court (Mayat J) granted an order declaring the building unlawful and directing partial demolition to ensure compliance with the scheme.

• Whether Readam, as an adjacent property owner, had locus standi to seek a demolition order at common law
• Whether the approval of building plans by the municipality was unlawful and subject to review
• Whether BSB had raised a genuine dispute of fact regarding the contraventions of the scheme
• Whether a court has discretion to order partial (rather than total) demolition of an unlawful building at common law
• Whether section 21 of the National Building Regulations and Building Standards Act 103 of 1977 (NBSA) confers discretion on a court to order partial demolition
• The relationship between common law remedies and statutory remedies under section 21 of the NBSA
• Whether the counter-application for discovery of the full record should succeed

The appeal was dismissed with costs, subject to amendments to the high court's order. Paragraph 1 was replaced with an order reviewing and setting aside the purported approval of building plans by the municipality. Paragraph 4 was amended to add a requirement that a suitably qualified engineer must certify that partial demolition will not compromise the structural integrity and safety of the building or adjacent buildings. The partial demolition order requiring compliance with the 60% coverage limit and parking requirements of the Sandton Town Planning Scheme was upheld.

At common law, an adjacent property owner whose rights are adversely affected by contraventions of a town planning scheme has locus standi to seek a demolition order, notwithstanding that they cannot invoke the statutory remedy in section 21 of the NBSA which is reserved for the Minister or local authority. When adjudicating such common law claims, courts possess a broad general discretion to order partial demolition after considering all relevant circumstances, including the nature and extent of the illegality, the conduct of the parties, and practical considerations such as structural integrity. A party who deliberately continues illegal construction despite warnings and engages in obfuscatory conduct to delay proceedings cannot rely on bare denials to create genuine disputes of fact and will not be permitted to benefit from presenting the court with a completed illegal structure. Where building plans are approved contrary to the requirements of a town planning scheme, such approval contravenes section 7(1)(a) of the NBSA and is subject to review and setting aside.

Ponnan and Swain JJA (with Victor and Kathree-Setiloane AJJA) expressed significant reservations about the correctness of Lester v Ndlambe Municipality's interpretation that section 21 of the NBSA confers no discretion on courts to order partial demolition. They identified six factors suggesting this interpretation may not survive careful scrutiny: (1) judicial oversight without discretion is contradictory; (2) the absence of discretion would preclude meaningful review; (3) section 21 itself contemplates discretion between prohibiting continuation and ordering demolition; (4) mandatory total demolition for trivial illegalities appears disproportionate; (5) section 26(3) of the Constitution requires courts to consider all relevant circumstances before ordering demolition of homes; (6) the definition of "building" includes "part of a building" suggesting partial relief is contemplated. However, they did not express a firm view on Lester's correctness. Majiedt JA disagreed with this obiter discussion as unnecessary given that this case concerned common law remedies, not section 21, and expressed concern about calling into question binding precedent in obiter dicta on an issue with no bearing on the outcome. The court noted that the municipality's failure to perform its statutory functions properly created the stark situation where a common law remedy with discretion was pursued instead of a statutory remedy without discretion (per Lester).

This case clarifies the distinction between common law remedies available to affected property owners and statutory remedies under section 21 of the NBSA. It confirms that: (1) Adjacent property owners have locus standi at common law to seek demolition orders where their rights are adversely affected by contraventions of town planning schemes; (2) Courts exercise a broad discretion at common law when ordering demolition, including the power to order partial demolition, unlike under s 21 of the NBSA; (3) Courts will not tolerate deliberate, ongoing illegality and parties who persist with unlawful construction despite warnings will not be permitted to present courts with a fait accompli; (4) The case contains significant obiter discussion questioning whether Lester's interpretation of s 21 NBSA (that courts have no discretion but to order total demolition) is correct, raising constitutional and practical concerns about that interpretation, though Majiedt JA disagreed with this obiter as unnecessary to the decision. The case reinforces the importance of compliance with town planning schemes conceived in the public interest.