South Africa: Total Or Partial Demolition Of Illegal Construction: SCA Causes Confusion

Last Updated: 14 August 2017
Article by Smith Tabata Buchanan Boyes

BSB International Link CC v Readam South Africa (Pty) Limited

Recently in Lester v Ndlambe Municipality and another, the Supreme Court of Appeal held that a court hearing an application in terms of section 21 of the Building Regulations and Building Standards Act had no discretion but to order demolition of a building constructed without the required building approval, ie it could not order partial demolition but was compelled to order total demolition. This was so, the court emphasized, because the law could not and did not countenance an ongoing illegality which was also a criminal offence, and to do so would subvert the doctrine of legality and undermine the rule of law. In April 2016, however, the SCA seemed to say something different.


In terms of section 21 of the National Building Standards Act 103 of 1977 (the NBSA) 'a magistrate shall have jurisdiction, on the application of any local authority or the Minister, to make an order . . . authorising such local authority to demolish such building if such magistrate is satisfied that such erection is contrary to or does not comply with the provisions of this Act or any approval or authorisation granted thereunder'.

In Lester, as indicated above, it was decided that a court hearing an application in terms of section 21 of the NBSA had no discretion but to order demolition of the building—ie it could not order partial demolition but was compelled to order total demolition. This was so, it was held, because the law could not and did not countenance an ongoing illegality which was also a criminal offence, and to do so would subvert the doctrine of legality and to undermine the rule of law.

However, in the recent case of BSB International Link CC v Readam South Africa (Pty) Ltd the correctness of the Lester judgment was questioned in a majority decision, albeit obiter. The case concerned an appeal against a number of High Court orders, amongst others, for the demolition of an unlawfully constructed building, to the extent necessary to ensure compliance with the relevant town planning scheme. The order was given on application by an aggrieved adjoining owner in terms of the common law and did not involve section 21 of the NBSA. It was for this reason that a partial demolition was competent.

The majority of the SCA in BSB upheld the High Court finding but observed that if the municipality had properly performed its functions and approached the court in terms of section 21 of the NBSA, the court would, on the strength of Lester, have been obliged to grant an order of total demolition. If Lester was correct, the majority stated, 'a stark dichotomy would exist between our common law and our statutory law in respect of substantially the same remedy . . . (f)or, in terms of the former, a court would have a broad general discretion, whilst in terms of the latter, a court would have no discretion'. The majority, then proceeded to list '(s)everal important factors which appear[ed] not to have received due consideration in the interpretive exercise undertaken by Lester':

'First, given the draconian nature of the power (namely to order demolition) the purpose of s 21 must obviously be to ensure judicial oversight. Judicial oversight without a judicial discretion seems, on the face of it, to be a contradiction in terms. The absence of a discretion would in those circumstances run counter to the proper exercise of judicial oversight.

Second, if the magistrates' court is merely to perform a rubber-stamping function then a review can hardly lie to the High Court at the instance of anyone aggrieved by that decision.

Third, in terms of s 21 of the NBSA a court has the power 'to make an order prohibiting any person from commencing or proceeding with the erection of any building or authorising such local authority to demolish such building'. Consequently, after the commencement of the erection of the building, but before completion of its erection, a court can grant an order either prohibiting the person from 'proceeding with the erection' or an order of demolition. If a court possesses such a discretion then it is difficult to see why, once erection of the building is complete, a court no longer possesses a discretion to even grant a partial demolition of the building to the extent of its illegality.

Fourth, irrespective of the extent of the illegality a demolition order must follow. Thus, even a fairly trivial illegality must elicit the rather disproportionate sanction of total demolition. Whether our Constitution would countenance that has to be debateable.

Fifth, in terms of s 26(3) of the Constitution no one may have their home demolished 'without an order of court made after considering all of the relevant circumstances'. That plainly envisages the exercise of a broad general discretion. Thus certainly insofar as a home is concerned, with which we are admittedly not concerned here, an interpretation of s 21 that there is no discretion appears not to square with the Constitution.

Sixth, the definition of 'building' in s 1(d) of the NBSA includes 'any part of a building' which suggests that any relief granted in terms of s 21, may be directed at part of a building. That, it goes without saying, will entail the exercise of a discretion.'

It thus seems incongruous to require judicial oversight over the grant of a demolition order in terms of section 21 of the NBSA but then remove any discretion from a court whether to grant a partial or total demolition order. The exercise of a discretion to order the partial demolition of a building to the extent of its illegality, accords with the principle of legality, because in granting such an order a court in no way abrogates its duty to enforce the law. For, these reasons, which are probably by no means exhaustive, it may well be that the interpretation placed on section 21 by Lester does not survive careful scrutiny. But, it is not necessary for now to express any firm view on its correctness.'

The minority judgment in BSB concurred with the majority's reasons for dismissal the appeal but criticised its obiter remarks questioning the Lester decision, emphasising that Lester remained binding authority. That may be so but the majority's obiter remarks may well afford the basis for a challenging that authority, prying open the door that Lester had shut on any judicial discretion to order partial demolition in applications under section 21 of the NBSA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions