Demolish or go to jail: Property developer in the doghouse

Article_Demolition-or-go-to-jail-wideAn extract from judgment in EThekwini Municipality v Bhardwaj (3135/2015) [2015] ZAKZDHC 80, which is available here: SAFLII

“….. a lenient approach ….. would also lead to an open invitation to members of the public to follow the course adopted by the [developer] and to continue with the construction of buildings and structures in circumstances where the authority therefor has not been obtained from the relevant municipality”

30 days – that’s how long a property developer will spend in the local lock-up unless he demolishes illegal building works.

A deviation from plans …..

  • A property developer obtained municipal approval to build a house on his property
  • The municipality, finding on inspection that the construction taking place deviated from the approved plans, obtained a court order forbidding him to continue
  • Undaunted, the developer carried on building, ignoring notices clarifying his legal position, a direction to “cease all work forthwith” and ultimately the threat of a contempt of court order
  • Hauled back to court, he tried to convince the court that, having applied for special consent to the deviation from plan, he believed that he was entitled to continue building
  • Unsurprisingly the Court was not impressed with this defence and, refusing to condone his conduct, found him guilty of contempt of court
  • Commenting that the object of contempt of court proceedings is not only to vindicate the court’s honour but also to compel performance of court orders, the court sentenced the developer to 30 days, suspended for 2 years on condition that he demolishes the illegal building work within 30 days, and thereafter complies with the original order.

So what do you do if your neighbour builds illegally?

Our advice is that you seek legal assistance immediately upon becoming aware of any illegal building activity in your area.  Don’t delay; you need to move quickly and decisively.

Again, our courts have confirmed that every municipality has “not only a statutory duty but also a moral duty to uphold the law and to see to due compliance …..”  Nor will our courts tread softly when it comes to assisting municipalities in carrying out this duty.

Note: The original of this article appears on Ashersons Attorneys website, here.