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Stronger demolition remedy

27 March 2014

YOU, YOUR NEIGHBOUR, AND YOUR (SUDDENLY STRONGER) DEMOLITION REMEDY
The High Court decision of Dyecomber (Pty) Ltd and Another v East Coast Papers CC (AR 469/12) [2013] ZAKZPHC underlines the growing readiness of courts to order demolition of any building work carried out without approved plans (or otherwise unlawfully).

In the case in question, a demolition order was confirmed on the application of a neighbour. In other words, this was a case where “private” or “neighbour” law applied, rather than the “public law” matter in which the Supreme Court of Appeal held last year that a court has no discretion but to grant a municipality a demolition order where a structure is illegal for want of approved building plans.

So, if your neighbour has indulged in a spot of illegal construction work, your chances of obtaining a demolition order just got stronger. In this case for example, the offending owner failed to convince the court that it had any discretion to order an alternative remedy in the form of a compensation order for encroachment on its neighbour’s property.

Owners and builders
Don’t start up the cement mixer until all necessary building plans have been passed and you have checked for any encroachments or other potential sources of illegality.

Neighbours
Speed can be of the essence here, so take legal advice immediately upon learning of any unlawful (or potentially unlawful) building work next door.

NOTE FOR ATTORNEYS: Judgment in  Dyecomber (Pty) Ltd and Another v East Coast Papers CC (AR 469/12) [2013] ZAKZPHC  is available on Saflii. Note that this was a Full Bench appeal, and that the Court also held (at 25-27) that even if the trial court had enjoyed a discretion not to order demolition, it had on the facts exercised that discretion properly. For the sake of simplicity and brevity, we have not dealt with this aspect in the article above.

Jack Crook (LLB Lond, LLB Rhod) is the author of LawDotNews, a monthly newsletter which is personalised and e-mailed to your firm's clients compliments of your firm. Readers are welcome to contact Jack, or visit his web site at http://www.dotnews.co.za for further details.

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