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Wednesday Jun 01, 2016

Court orders illegal Parkmore property to be partly demolished

In what is considered to be a major victory for property owners whose neighbours build illegally, the Supreme Court of Appeal (SCA) has ordered the partial demolition of a building in 11th Street, Parkmore.

The SCA has ordered that this illegally constructed building in 11th Avenue, Parkmore, be partially demolished and remain unoccupied.

In the case of BSB International Link cc versus Readam South Africa Pty Ltd, the SCA upheld a decision by the high court in Joburg ordering partial demolition of the building because it covers 86.13 percent of the property, while it should only cover 60 percent in terms of the Sandton Town Planning Scheme.

It also has provision for only 11 parallel street parkings, while there should be 35 for retail purposes.

The SCA's Judge Visvanathan Ponnan and Judge Kevin Swain further ordered the building not to be occupied until a valid certificate of occupancy has been issued by the City of Joburg.

It is a four-storey building with flats and offices on upper floors and retail space on the ground floor.

The judges said that although the city had been cited as the first respondent, it had failed by not filing answering affidavits and took no part in the proceedings.

"The supine and unco-operative attitude of the municipality made the task of the court a quo in resolving the dispute between BSB and Reagan all the more difficult. It also resulted in an incomplete record being produced by the municipality," they said.

The judges accused BSB of "exploiting the municipality's ineptitude with the clear objective of obfuscating and delaying matters to enable the building to be completed prior to the court adjudication with the goal of presenting the court with a fait accompli, in the form of a completed building".

They also found that the company had been warned that it was acting illegally.

"It engaged in obfuscatory behaviours to delay the finalisation of this litigation while pressing ahead with its illegal conduct. Such conduct can hardly be countenanced by a court. To do so will make a mockery of ordered town planning and, by extension, the law," said the judges.

The attorney for Readam, Julian Scher, said the building was erected in "flagrant breach" of the town planning scheme.

"Besides the coverage issue, they built four storeys instead of three. No plans were submitted, yet they got an occupation certificate from the council," he said.

Mike Slim, the owner of BSB, said that there would be no demolition.

"We own the property next door, so we will be able to adhere to the coverage requirements and we will get things corrected," he said.

The Star receives numerous complaints from residents about illegal construction who claim the city does nothing to prosecute the owners.

Yeoville residents in Frances Street have been battling with a house that has been converted illegally into a church. Rooms have been built all around the property.

Tsepo Matubatuba, representing the neighbours, said the church is a menace to the community, blasting music all day of Sundays and afternoons into the night on some weekdays.

"If we complain, we get threatened," he said.

Virgil James, the spokesman for the City of Joburg said they have not seen the SCA papers and would be examining their shortfalls in this case.

On the Yeoville church matter, he said the court had ordered the house be reinstated as a residence.

"This order allowed the owner to reinstate on or before April 28, 2016 but a recent inspection shows the premises is still operating as an illegal church. We are now going to apply for a demolition order," he said.

The Star


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