REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA

		CASE No: 11525/2009

In the matter between:

THE STANDARD BANK OF SOUTH AFRICA LIMITED     			 Applicant
and

JUDGMENT DELIVERED : 31 MAY 2010

MOOSA, J:

The Demolition Order:
[1 ] On 29 April 2009, the first respondent in this matter obtained default judgment in terms of which the Magistrate's Court ordered the third respondent to demolish, on or before 8 June 2009, the unauthorised and illegal structures comprising a garage and a storeroom on Erf 7407 and situate at 3 Simmentaler Street, Malmesbury ("the property"). In the event of the third respondent failing to comply with the order, the Court authorised and ordered the second respondent, the Sheriff, to carry out the order by 9 June 2009 (the "demolition order").

It is common cause that the third respondent had failed to get written approval from the
first respondent prior to erecting the said structures.

[3] The demolition order was obtained in terms of section 21 of the Act on the ground that the erection of the said structures does not comply with the provisions of the Act, in that the third respondent did not have approved plans for the erection of the said structures and the said structures contravened the provisions relating to the five metre street building line or set back.

Application to Interdict and Set Aside the Demolition Order:

"2. That a rule nisi be issued calling upon the Respondents to show cause (if any) on a date and at a time to be determined by the above Honourable Court why:-
2.1 The demolition contemplated by the court order issued by the Magistrate, Malmesbury, under case number 246/2009 on 29 April 2009 should not be interdicted and the order set aside.

The Application was only opposed by the first respondent. The second respondent abided the decision of the Court and the third respondent did not oppose the Application.

[5] In argument before me, counsel for the applicant sought an order setting aside the demolition order issued by the Magistrate's Court of Malmesbury. In the alternative he asks that the demolition be interdicted until such time as an application may be brought in the Magistrate's Court for the order to be set aside.

The Objective Facts:
[6] It is quite clear from the objective facts that the conduct of the third respondent was wrongful and unlawful. Firstly, he submitted building plans in flagrant contravention of the Act and the Zoning Regulations and failed to rectify the plans when requested to do so by the first respondent; secondly, he ignored all the correspondence addressed to him in this matter, both by the first respondent and its attorney; thirdly, he deliberately and intentionally went ahead with the erection of the structures knowing that he had no prior written approval from the first respondent and that they contravened the Act; fourthly, he was given written warning not to proceed with the building operations prior to obtaining the necessary approval, but despite such warning, he went ahead and fifthly, he not only erected the unauthorised structures for which he had submitted plans and which were not approved, but he also erected an unauthorised jacuzzi and bathroom for which he had no plans or approval.

The Issues:
[7] The issues to be determined are firstly, whether the applicant has made out a case for a final interdict, alternatively an interim interdict; secondly, whether the applicant has made out a case for the setting aside of the demolition order; and thirdly, whether the judgment of this court for the foreclosure on the two bonds supersedes the demolition order.

Whether a case has been made out for a final alternatively an interim interdict:

[9] The applicant brought the application on the basis that it is the holder of a first and second Mortgage Bond over the property. It alleged that, as such, it had a direct and substantial interest in the outcome of the proceedings in the Magistrate's Court and should have been joined as a necessary party. It was submitted further, on behalf of the applicant, that it had obtained a judgment for foreclosure against the third respondent in this court, in terms of the Mortgage Bonds, and the property was declared executable. Such order, it was argued, superseded the demolition order of the Magistrate's Court.

1984 (3) SA 626 (A).

[17] In my view the applicant has not laid a factual or legal basis on the strength of which it is permitted to maintain such unauthorised and unlawful structures by means of an interdict against the first respondent in the face of the judgment that was lawfully obtained against the third respondent for the demolition of the unauthorised and unlawful structures.

he then was) says the following:

[21] Even if the applicant had established all the requirements for an interdict in this matter, the court would have had serious reservation in exercising its residual discretion to come to the assistance of the applicant in the face of the unauthorised and unlawful conduct of the third respondent in firstly, failing to obtain prior written approval to erect the garage and storeroom; secondly, in erecting such structures in contravention of the Act and the Zoning Regulations; and thirdly, erecting additional unauthorised and illegal structures, such as the jacuzzi and bathroom.

"The exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law."

Whether a case has been made for the setting aside of the demolition order:

[26] In my view the applicant, in the main relief, has failed to establish a factual or legal basis to have the demolition order set aside by this court and, in the interim relief, the probabilities of success do not favour the applicant in securing rescission of the demolition order in the Magistrate's Court.

Whether the judgment of this court for foreclosure supersedes the judgment of the Magistrate's Court:

[28] In my view, the latter judgment in which the property was declared executable was subject to the judgment in the Magistrate's Court in which an order was granted authorising the demolition of the unauthorised and illegal structures. To give it any other construction or effect, would tantamount to this court legitimising the unauthorised and illegal structures, which were ordered to be demolished by the Magistrate's court. The unauthorised and illegal structures could never have formed part of the Applicant's security arising from the two mortgage bonds. In the circumstances I conclude, that the judgment of this court does not supersede the judgment of the Magistrate's Court but rather subsumes it.

The Findings:

The Order:
[30]     In the premises the application is dismissed with costs.
E MOOSA