DEMOLITION APPLICATIONS FOR ILLEGAL STRUCTURES TO INCLUDE MORGAGEE

In the Supreme Court of Appeal (SCA) case of Standard Bank v The Swartland Municipality (562/10) [2011] an application was brought to appeal the decision of the Western Cape High Court. The High court held that the Applicant bank, which was the mortgagee of immovable property, was not entitled to an order interdicting the Defendant from proceeding with a demolition order granted by the Magistrate’s Court.

The Applicant held two mortgage bonds against the property in question therefore having a real right, and argued that it should have been joined as a party to the Application brought by the Defendant to demolish the illegal structures which were built by the mortgagor. The High Court held that the Applicant only had a financial interest in the property and not in the outcome of proceedings and that by suspending the demolition order it would perpetuate the illegality.

Thus the SCA was faced with the two question’s, firstly should the Applicant have been joined as a party to the Application in the Magistrates Court for the demolition of the illegal structures. Here the SCA held that the Applicant as a mortgagee should have been joined as it has a substantive right in the property and was entitled to protect the value of such property.

The second question the SCA was faced with was whether the Applicant was entitled to either an interim or final interdict prohibiting the demolition of the structures. As the Application for the demolition of illegal structures was brought in terms of s21 of the National Buildings Regulations and Building Standards Act , the Applicant as having an interest in the property would need to apply to the Municipality in terms of s18 of the same Act to permit a deviation from the applicable building regulations. The SCA held that this argument was purely speculative and the Applicant could raise no defence as it does not show that the Applicant has a prima facie right to interdict the demolition.

Thus the SCA held that the application brought in the Western Cape High Court was correctly refused and this Appeal was dismissed.

To read SCA Judgment : http://www.justice.gov.za/sca/judgments/sca_2011/sca2011-106.pdf