Lester v Ndlambe Municipality

Professor Matthew Lester erected a luxury home in Kenton-on-Sea without approved building plans as required by section 4(1) of the National Building Regulations and Building Standards Act 103 of 1977. Over more than a decade, there were seven high court applications concerning the property, all resulting in orders against Lester. Initially, Lester obtained approval for building plans designed by Ms Purden in May 2002. However, he subsequently discarded these plans and engaged a different architect, Mr Pelissier, who designed a double-storey building with a dome-shaped roof significantly different from the approved Purden plans. The Pelissier plans were approved and then set aside three times through various review applications brought by the neighbouring property owner, Mr Haslam. In June 2007, Jones J made an order by consent declaring that the Pelissier plans 'be not approved'. In April 2010, Plasket J made an order requiring Lester to submit compliant plans within one month, failing which the municipality would apply for demolition under section 21 of the Act. Lester submitted various revised plans, all of which were rejected. The municipality then applied for a demolition order, which Lester opposed, also bringing a counter-application to allow partial alteration of the dwelling instead of complete demolition.

• Whether a court has any discretion to refuse a demolition order under section 21 of the National Building Regulations and Building Standards Act where a building has been erected without approved plans
• Whether section 26(3) of the Constitution (the right not to have one's home demolished without a court order considering all relevant circumstances) confers a discretion on courts in demolition cases
• Whether common law neighbour law principles apply to statutory demolition applications and confer a discretion on courts
• Whether the doctrine of legality requires courts to enforce statutory prohibitions that constitute criminal offences
• Whether partial demolition or alteration of an unlawfully erected structure should be permitted as an alternative to complete demolition

The appeal was dismissed with costs, including the costs of two counsel where so employed. The demolition order granted by the Eastern Cape High Court was upheld, and Lester's counter-application for partial alteration was dismissed.

Where a building has been erected in contravention of section 4(1) of the National Building Regulations and Building Standards Act 103 of 1977 (without approved building plans), and a local authority applies for a demolition order under section 21 of the Act, a court has no discretion to refuse the demolition order once the jurisdictional fact (that the building was erected contrary to the Act) is established. The doctrine of legality, as a fundamental component of the rule of law, requires courts to enforce statutory prohibitions the contravention of which constitutes a criminal offence under section 4(4) of the Act. Courts cannot countenance ongoing illegality and must uphold valid administrative decisions that have not been set aside on review or appeal. Common law neighbour law principles, which confer equitable discretions in encroachment cases, do not apply to public law remedies involving statutory contraventions that amount to criminal offences.

The Court made several non-binding observations: (1) It was not necessary to determine whether Lester had orchestrated the situation or was merely an innocent victim of municipal incompetence - the material facts of illegality and continuation of building without approved plans sufficed. (2) The Court acknowledged acute awareness of the financial calamity, inconvenience and disruption that demolition of an expensive, luxurious primary residence would cause, but emphasized that upholding the doctrine of legality must inevitably trump such personal considerations. (3) The Court noted the long and sorry history of the case involving seven high court applications over more than a decade, all resulting in orders against Lester. (4) The Court commented that one would have expected Lester to have contented himself with the approved Purden plans after the first setback, rather than pursuing significantly different designs.

This case establishes important principles regarding the enforcement of building regulations and the doctrine of legality in South African law. It clarifies that: (1) Courts have no discretion to refuse demolition orders under section 21 of the National Building Regulations and Building Standards Act where buildings have been erected without approved plans in contravention of section 4(1). (2) The doctrine of legality requires courts to enforce statutory prohibitions, particularly where their contravention constitutes a criminal offence, and courts cannot countenance ongoing illegality. (3) Section 26(3) of the Constitution does not confer a broad discretion in demolition cases where the affected person has not demonstrated they would lack access to adequate alternative housing. (4) Common law neighbour law principles based on equity do not apply to public law remedies seeking enforcement of statutory contraventions. (5) Local government authorities have both statutory and moral duties to uphold the law by enforcing building regulations. The case reinforces that the rule of law and legality principle must trump personal convenience and financial considerations, even in cases involving primary residences and substantial financial loss.