THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

In the matter between

Case No: 1156/2016

WIERDA ROAD WEST PROPERTIES (PTY) LTD

APPELLANT

and

SIZWENTSALUBAGOBODO INC

RESPONDENT

Neutral
citation:

Wierda
Road
West
Property
(Pty)
Ltd
v
SizweNtsalubaGobodo Inc (1156/16) [2017] ZASCA 170 (1 December 2017)

Coram:
Cachalia and Majiedt JJA and Plasket, Meyer and Mbatha AJJA

Heard:
22 November 2017

Delivered:
1 December 2017

Summary:
Lease – National Building Regulations and Building Standards
Act 103 of 1977 – lease agreement not rendered invalid and unenforceable by
ss (4)(1) and 14(1), read with s 4(4) and s 14(4)(a) of the Act.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Gauteng Local Division, Johannesburg (Francis J, sitting as
court of first instance):

1.
The appeal is upheld with costs.
2.
The order of the high court is set aside and substituted with the
following:

„Judgment is granted in favour of the plaintiff in the sum of
R7 867 548.78 together with interest at 8% per annum from
1 December 2014 to date of payment and costs‟.
3.
The cross-appeal is dismissed with costs.
______________________________________________________________

JUDGMENT
______________________________________________________________

Majiedt JA (Cachalia JA and Plasket, Meyer and Mbatha AJJA
concurring):

[1] The appellant, Wierda Road West Properties (Pty) Ltd, instituted action
against the respondent, SizweNtsalubaGobodo Inc, for the amount of
R7 867 548.78 in respect of rentals and municipal charges for the lease of its
property at 41 West Street, Houghton, Johannesburg (the property). Francis
J, sitting as a court of first instance in the Gauteng Local Division,
Johannesburg (the high court), dismissed the action with costs. This appeal is
with the leave of the high court, which also granted the respondent leave to
cross-appeal against the finding that the lease agreement was not invalid, but
merely unenforceable.

[2] The action was based on a written lease agreement concluded
between the parties on 3 August 2012. Although the duration of the

agreement was for five years, the claim was for the period July 2014 to March
2016, as the appellant had sold and transferred the property, in March 2016.
The quantum of the claim was not in issue. The respondent raised a number
of defences and also instituted a counterclaim for an order declaring the lease
agreement to be void ab initio, and for the repayment of the rentals paid
during the period of its occupation of the property. During the trial the
respondent withdrew its claim for repayment and persisted only with its claim
for the declaratory order.

[3] The respondent‟s defences were premised on its counterclaim, namely
that the lease agreement was void ab initio and that the appellant was
consequently precluded from enforcing its terms. The defence of the invalidity
of the agreement was based on the following grounds, each one pleaded as
an alternative to the other:
(a) that the agreement contravened s 14 of the National Building Regulations
and Building Standards Act 103 of 1977, (the Act) in that no occupancy
certificate had been issued prior to the occupation thereof;
(b) that the appellant had made a fraudulent misrepresentation by failing to
inform the respondent of the fact that no occupancy certificate had been
issued; and
(c) that the property was not suitable for the purposes for which it was let, as it
would have constituted an offence for the respondent to have remained in
occupation in the absence of an occupancy certificate.

[4] The high court partially upheld the first defence by finding that even
though the agreement was not invalid, it was unenforceable. As stated, this
finding prompted a cross-appeal by the respondent. The high court dismissed
the second and third defences above. During argument in this court, the
respondent abandoned the fraudulent misrepresentation defence. It became
evident during the trial that there were no approved building plans for part of
the property, as is required by s 4(1) of the Act. This non-compliance was
advanced by the respondent as a further ground to invalidate the agreement.
The fact of the non-compliance with sections 4(1) and 14(1) is common
cause. The issues in this appeal are therefore:

(a) Whether the agreement is void ab initio due to the contraventions of s 4(1),
read with s 4(4) or s 14(1), read with s 14(4) of the Act;
(b) Whether the failure to obtain an occupancy certificate rendered the
property not suitable for the purposes for which it was let; and
(c) In respect of the cross-appeal, whether the high court erred in its finding
that the agreement was not invalid, but merely unenforceable.

[5] A brief narration of the factual matrix is necessary for a proper
understanding of the issues. Almost all the background facts were common
cause or not seriously disputed. The respondent is a merged entity,
comprising Gobodo Incorporated (Gobodo) and SizweNtsaluba VSP (Sizwe).
The appellant is a property-owning company entirely owned by the
shareholders of the erstwhile Gobodo. It purchased the property in 2009 on
auction with a view to house Gobodo, whose premises at that time had
become too small. The appellant undertook the refurbishing of the property at
Godobo‟s instance to meet its requirements. On 1 August 2010 Gobodo
moved in. In the course of the refurbishment it was discovered that there were
no building plans in respect of the new wing added to the property by the
previous owner. The original property consisted of a two storey residential
dwelling. The new wing, also built by the original owner, comprised three
floors, namely the ground, mezzanine and first floors. Despite concerted
efforts, the appellant was unable to get building plans from the seller.
Consequently, the appellant instructed its architects to draw plans for the new
three storey wing and to submit them to the City Council of Johannesburg
(City Council).

[6] The appellant concluded a lease agreement with Gobodo for a period
of 12 years, commencing 1 August 2010. On 1 June 2011 Gobodo merged
with Sizwe to form the respondent, which concluded a new lease agreement
in respect of the property with the appellant on 3 August 2012. The duration of
the original lease was reduced from 12 years to 5 years. The appellant
experienced serious problems getting the plans approved. There were as
many as 12 separate approvals required. The building plans were finally
approved during mid-2015, almost five years after their submission to the City

Council. Without approved plans the appellant could not obtain an occupancy
certificate. This is because s 14(1)(a) of the Act rendered the granting of an
occupancy certificate subject, amongst others, to the requirement that the
building concerned was erected in accordance with the provisions of the Act
and with any conditions under which approval was granted.1 One of the
relevant provisions for present purposes is s 4(1).2

[7] Pursuant to the conclusion of the lease, the respondent occupied the
property from 1 August 2012 until June 2014, when it vacated the premises
without notice to the appellant. During this period, the respondent paid the
monthly rentals and municipal utility charges in accordance with the terms of
the lease.

[8] As the issues in dispute are largely a question of law, it is not
necessary to refer in detail to the evidence of the witnesses at the trial. The
high court, understandably, did not deem it necessary to make any credibility
findings on the oral evidence. For present purposes the discussion can be
restricted to a brief summary of the evidence on the central issues, namely
the lack of building plans and an occupancy certificate.

[9] Mr Dayalan Manikum Naicker was the main witness for the appellant.
He was a shareholder and director of the appellant and, until his retirement in
December 2010, a shareholder of Gobodo. All the shareholders in Gobodo
were shareholders of the appellant and five of them, including Mr Naicker,
were appointed as its directors. Mr Naicker conducted the negotiations
regarding the lease agreement on behalf of the appellant. Mr Donavan
Simpson, who was the chief financial officer of the respondent and previously

1 Section 14(1)(a) reads:
„(1) A local authority shall within 14 days after the owner of a building of which the erection
has been completed, or any person having an interest therein, has requested it in writing to
issue a certificate of occupancy in respect of such building –
(a) issue such certificate of occupancy if it is of the opinion that such building has been
erected in accordance with the provisions of this Act and the conditions on which
approval was granted in terms of section 7 . . .‟
2 Section 4(1) reads as follows:
„(1) No person shall without the prior approval in writing of the local authority in question, erect
any building in respect of which plans and specifications are to be drawn and submitted in
terms of this Act‟.

a shareholder in Gobodo, acted for the respondent during the negotiations.
The most important part of Mr Naicker‟s evidence, relevant to the central
issue, was that Mr Simpson and all the other Gobodo shareholders were
aware of the absence of an occupancy certificate. Mr Simpson was
succeeded as chief financial officer by Mr Gerrit Prinsloo, who featured
prominently in the events leading up to and after the respondent vacated the
property. According to Mr Naicker, the City Council was fully aware that the
property was being occupied without an occupancy certificate; its inspectors
came to the property to make an assessment of the situation and there was
no objection to occupation.

[10] Surprisingly, neither Mr Simpson nor Mr Prinsloo testified for the
respondent. Instead, it adduced the evidence only of Mr Victor Mazitha
Sekese, the chief executive officer. Although he had signed the lease
agreement on behalf of the respondent, he had not been involved in the prior
negotiations at all. He had delegated all the negotiations regarding the lease
to Mr Simpson. According to Mr Sekese he had no concerns about the
agreement when it was brought to him for signature. He said that if he had
known about the absence of the building plans and an occupancy certificate,
he would not have signed the agreement. It bears emphasis that it was not
the respondent‟s case that the property was not safe for occupation. What is
more, Mr Naicker‟s evidence regarding the problems about the building plans
and the occupancy certificate, was unchallenged.

[11] The objective evidence, in the form of e-mail communications between
the parties‟ representatives, prior to the respondent vacating the property in
June 2014, is instructive. At no time during the parties‟ communications during
March and April 2014 regarding a possible subtenancy was the absence of an
occupancy certificate raised as an issue, except to the extent that the
appellant had been alerted to the fact that it may prove problematic for the
respondent to procure a subtenant. The respondent did not complain about
the absence of an occupancy certificate. As stated, the respondent only
became aware of the absence of approved plans during the course of the trial.

[12] On 10 June 2014 Mr Naicker wrote to Mr Prinsloo asking him to
confirm the rumours that the respondent would be moving out of the property.
This was confirmed by Mr Prinsloo, who indicated that the respondent was to
begin looking for a subtenant. On 25 September 2014, after the respondent
had vacated the property, in a letter by the respondent‟s attorneys to the
appellant, the absence of an occupancy certificate was for the first time
pertinently raised as a reason for the respondent vacating the property. The
attorneys also contended that, by reason of the lack of a certificate of
occupancy, the lease agreement was invalid, and so the present litigation
ensued.

[13] The primary thrust of the attack against the lease agreement was, as
stated, the non-compliance with ss 4 and 14 of the Act. It was contended that
non-compliance rendered the agreement void ab initio and that this
conclusion followed from the penal sanctions imposed in these sections.3 The
high court‟s finding that the lease agreement was valid but not enforceable,
was based exclusively on the Hubbard judgment of this court,4 which was
confirmed on appeal to the Constitutional Court.5

[14] Hubbard is plainly distinguishable on the facts and on the law. That
case concerned the provisions of s 10 of the Housing Consumers Protection
Measures Act 95 of 1998 (Housing Act) which expressly prohibits an
unregistered builder from receiving any consideration in terms of any
agreement with a housing consumer in respect of the sale or construction of a
home. Section 14 of the Act, which was the focus of the high court‟s

3 Section 4(4) reads: „Any person erecting any building in contravention of the provisions of
subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding
R100 for each day on which he was engaged in so erecting such building.‟
Section 14(4)(a) reads: „The owner of any building, or any person having an interest therein,
erected or being erected with the approval of a local authority, who occupies or uses such
building or permits the occupation or use of such building –
(i)
Unless a certificate of occupancy has been issued in terms of subsection (1)(a) in
respect of such building;
(ii)
. . .
(iii)
. . .
(iv)
. . .
shall be guilty of an offence.‟
4 Hubbard & another v Cool Ideas 1186 CC [2013] ZASCA 71; 2013 (5) SA 112 (SCA).
5 Cool Ideas 1186 CC v Hubbard & another [2014] ZACC 16; 2014 (4) SA 474 (CC).

judgment, differs quite starkly from that provision, as it contains no such
statutory prohibition. Section 10 of the Housing Act is plainly intended to
protect housing consumers against unregistered builders – thus the
Constitutional Court held that „the protection of housing consumers is a
necessary and legitimate legislative objective‟.6 It is therefore not surprising
that the respondent eschewed any reliance on this case.

[15] This case was conducted and decided in the high court and argued
before us on the basis of non-compliance with s 4(1) and s 14(1). We heard
extensive argument on these provisions and in the course of the debate,
particularly with the respondent‟s counsel, some difficulties emerged. As is
immediately apparent from the sections (cited in footnote 1 above), it is
questionable whether either applies in the present instance. First, s 4(1)
applies to a person who erects a building. And the penalty provision in s 4(4)
also refers to any person erecting any building. The appellant did not „erect‟
the building in question, within the definition of the word „erection‟ in s 1.7 This
much was common cause. Second, s 14(1)(a) provides that an occupancy
certificate may be issued if the local authority is „of the opinion that such
building has been erected in accordance with the provisions of this Act . . .‟
Section 14(4)(a), which contains the penal sanction, refers to „[t]he owner of
any building, or any person having an interest therein, erected or being
erected with the approval of a local authority . . .‟ It was also common cause
that, in the present instance, the building in question had been erected without
the requisite plans, ie without the approval of the local authority. Section
14(4)(a) therefore deals with instances of occupancy without an occupancy
certificate, but where there are approved plans in place.

[16] But even if ss 4(1) and 14(1) were to apply here, and I do not find that
they do, there are, in my view, compelling considerations why the lease
agreement in the present matter is valid and enforceable.

6 Ibid para 42.
7 „Erection‟ is defined in s 1 as „in relation to a building, includes the alteration, conversion,
extension, rebuilding, re-erection, subdivision of or addition to, or repair of any part of the
structural system of, any building; and ‘erect’ shall have a corresponding meaning.‟

[17] The respondents placed much reliance on the trite principle that what
the law prohibits it also renders void, and reference was made to the well-
known dictum in Schierhout v Minister of Justice:8 „[i]t is a fundamental
principle of our law that a thing done contrary to the direct prohibition of the
law is void and of no effect‟.9 And, as stated, the additional penal sanction in s
14(4)(a)10 was said to fortify a conclusion of invalidity in the case of non-
compliance with s 14(1)(a). In this regard we were referred to Christie where it
is explained that „when a contract is not expressly prohibited but it is
penalized, that is the entering into it is made a criminal offence, then it is
impliedly prohibited and so rendered void.‟11 But, as the author correctly
points out, those are not inflexible rules. What must ultimately be determined
is the purpose of the legislative provision. These principles are mere
guidelines in ascertaining that purpose. Solomon JA put it as follows in
Standard Bank v Estate Van Rhyn:12
„The contention on behalf of the respondent is that when the Legislature penalises an
act it impliedly prohibits it, and that the effect of the prohibition is to render the [a]ct
null and void, even if no declaration of nullity is attached to the law. That, as a
general proposition, may be accepted, but it is not a hard and fast rule universally
applicable. After all, what we have to get at is the intention of the Legislature, and, if
we are satisfied in any case that the Legislature did not intend to render the [a]ct
invalid, we should not be justified in holding that it was. As Voet (1.13.16) puts it –
“but that which is done contrary to law is not ipso jure null and void, where the law is
content with a penalty laid down against those who contravene it.” Then after giving
some instances in illustration of this principle, he proceeds: “The reason for all this I
take to be that in these and the like cases greater inconveniences and impropriety
would result from the rescission of what was done, than would follow the act itself
done contrary to the law.” These remarks are peculiarly applicable to the present
case, and I find it difficult to conceive that the Legislature had any intention in
enacting the directions referred to in sec 116(1) other than that of punishing the
executor who did not comply with them.‟

8 Schierhout v Minister of Justice 1926 AD 99 at 109.
9 At 109.
10 Para 12 above.
11 G B Bradfield Christie’s The Law of Contract in South Africa 7ed at 395 (footnotes omitted).
12 Standard Bank v Estate van Rhyn 1925 AD 266 at 274 - 275; see also: Metro Western
Cape (Pty) Ltd v Ross 1986 (3) SA 181 (A) at 188F–189A.

[18] In Swart v Smuts13 this Court considered this question in some detail.
Referring to the flexibility of this principle, Corbett AJA observed that „[c]areful
consideration of the wording of the statute and of its purpose and purview
may lead to the conclusion that the Legislature did not intend invalidity‟ (own
translation).14 In discussing the aids of interpretation in ascertaining the
intention of the Legislature, the learned Judge referred to the question
whether the attainment of the Legislature‟s purpose requires the nullification
of the prohibited act or whether the sanction, penal or otherwise, would
sufficiently meet that objective.15 In the present instance, this consideration is
of particular importance since, as stated, the respondent relies on the penal
sanctions in the relevant provisions as proof of the fact that the agreement is
rendered invalid by non-compliance. The sentence to be imposed for criminal
offences is almost invariably subject to the discretion of a court. There is thus
a substantial measure of flexibility involved.

[19] But that is not the case with the law of contract – the contract is either
valid or it is not. If the law has been contravened, the contract may be treated
as illegal and that is the end of the matter.  As Boshoff JA correctly, with
respect, cautioned in Metro Western Cape v Ross, „[t]he use of contract law to
supplement the deficiencies of the criminal law has serious disadvantages
which outweigh any utility it has in this respect‟.16 Regard must also be had to
the probable unintended consequences („greater inconveniences and
impropriety‟) which invalidity can cause when compared to the prohibited
act.17 It is axiomatic that each case must be considered on its own facts,
taking into account the language, scope and object of the statute in question
as well as the consequences in relation to justice and the convenience of
adopting one view rather than the other.18

13 Swart v Smuts 1971 (1) SA 819 (A).
14 At 829 F: „Deeglike oorweging van die bewoording van die statuut en van sy doel en
strekking kan tot die gevolgtrekking lei dat die Wetgewer geen nietigheidsbedoeling gehad
het nie‟.
15 Swart at 830 A-B.
16 Metro Western Cape v Ross above at 191H.
17 Swart v Smuts, footnote 12 above, at 830C.
18 Metro Western Cape footnote 15 above at 188G-H.

[20] In my view, the penalty provision in s 14(4)(a) strongly suggests that
the penalty itself was intended by the Legislature to be an adequate sanction,
without the lease agreement in this instance also being void. As I see it, the
primary purpose of the Act, as its short title suggests, is to provide for national
building regulations and standards. The long title of the Act confirms this view:
„[t]o provide for the promotion of uniformity in the law relating to the erection of
buildings in the areas of jurisdiction of local authorities; for the prescribing of
building standards; and for matters connected therewith‟. The Act is less
concerned with private law relationships between, for example, lessors and
lessees, but rather with public law relationships between local authorities and
builders, users and occupants. Section 14 is thus concerned in the main with
ensuring compliance with the provisions of the Act and with conditions of
approval. It is difficult to understand why, over and above the penalty
provisions in s 14(4)(a), compliance was intended to be achieved also by
rendering void agreements which contravene the section. I am fortified in my
conclusion in the following respects:
(a) Section 14(1A) provides that permission may be granted by the local
authority to an owner of a building or any person having an interest in the
building, to use the building prior to the issue of an occupancy certificate.19
This exemption is strongly indicative of the fact that the Legislature did not
intend agreements which contravene the section to be void. As I have said,
neither the City Council nor the respondent, both of whom had full knowledge
of the facts, had a problem with the absence of an occupancy certificate. The
Act does not expressly place a prohibition on the occupation of a building
without an occupancy certificate having been issued – it merely creates a
statutory offence in respect of the occupation of a building without the
requisite occupancy certificate. It was open to the appellant or the respondent
to apply for s14(1A) permission if this had become necessary.

19 Section 14(1A) reads:
„A local authority shall within 14 days after the owner of a building of which the erection has
been completed, or any person having an interest therein, has requested it in writing to issue
a certificate of occupancy in respect of such building –
(a) issue such certificate of occupancy if it is of the opinion that such building has been
erected in accordance with the provisions of this Act and the conditions on which
approval was granted in terms of section 7 . . .‟

(b) Second, there are other remedies available to local authorities to enforce
the provisions of the Act in order to achieve its primary purpose, set out
above. These include:
(i) ordering the alteration or demolition of a building which is dangerous or
shows signs of becoming dangerous to life or property (s 12(1)); and
(ii) applying to a magistrate‟s court for an interdict or the demolition of a
building which contravenes the provisions of the Act (s 21).
As stated, the primary focus of the statute is not on private contractual
relationships, but on those between local authorities and builders, users and
occupants.
(c) Lastly, one of the factors to be considered in a determination of the
Legislature‟s intention is that the additional sanction may have undesirable
and unintended consequences.20 This case vividly demonstrates the unjust
and undesirable consequences which may ensue. Through no fault of its own
and utterly oblivious to the absence of any plans, having purchased the
property at an auction, the appellant would find itself in the invidious position
of having a lease agreement declared invalid where it has fully performed all
its obligations and where the tenant was fully conversant with all the facts. In
addition, the slow grind of the City Council‟s bureaucratic machinery stood in
the way of the appellant‟s efforts to regularize the situation for five years.

[21] Much of what has been stated in respect of s 14(1)(a) with regard to
ascertaining the intention of the Legislature must of course also apply to s
4(1), read with s 4(4). For the reasons already outlined, I am of the view that
the Legislature did not intend a further sanction of invalidating agreements
which contravene the section over and above the penal sanction contained in
s 4(4). This conclusion is even more compelling when one considers the
nature of the penalty in s 4(4). Provision is made for a maximum fine of „R100
for each day on which [a person] was engaged in so erecting such building
[without plans]‟ The longer the period of transgression, the harsher the penalty
– something which, as already stated, cannot be achieved through
invalidating a private contract.

20 Swart v Smuts, footnote 12 above.

[22] In Friedshelf 113 (Pty) Ltd v Mysty Blue Trading 559 CC,21 an
unreported judgment of the South Gauteng High Court, Johannesburg, a
similar conclusion was reached. There the applicant had sought a declarator
that the lease agreement between it and the respondent was validly
cancelled. The basis for that relief was the contention that the respondent had
fraudulently failed to disclose that there were no approved plans and
occupancy certificate for the particular premises. The respondent also averred
that it had an improvement lien over the premises due to the invalidity of the
lease agreement by reason of the non-compliance with s 4 and s 14 of the
Act. In a closely reasoned judgment, Van der Merwe AJ came to the
conclusion that there are no „valid or compelling considerations which indicate
that the private lease agreement in the present instance must be visited with
the sanction of voidness and unenforceability by virtue of the fact that it
relates to premises in respect of which the requirements of [the Act] have not
been complied with.‟22 In reaching that conclusion the learned Judge
reasoned that:
(a) there were no allegations that the premises was unsafe for occupation
and, on the unchallenged evidence, the applicant was attending to the
outstanding requirements;
(b) the authorities were aware of the situation and that the applicant was
attending to it;
(c) there are remedies available to the local authority to address the non-
compliance, should it wish to do so;
(d) there was „no pressing need . . . for the court to impose an additional
sanction on the applicant regarding the private law relationship between the
applicant and the respondent, which is not provided for in the relevant
legislation‟;
(e) the penal sanction was adequate and more appropriate in its flexibility to
deal with non-compliance.

21 Friedshelf 113 (Pty) Ltd v Mysty Blue Trading 559 CC, Case no 2008/39429, delivered on 3
April 2009.
22 Ibid para 7.

[23] I endorse these conclusions and the underlying reasoning of the
learned Judge. This case is on all fours with the present one. For the reasons
already set out, I therefore hold that the lease agreement in this instance is
valid and enforceable. What remains is to consider the judgment of Rogers J
in Berg River Municipality v Zelpy,23 a matter upon which the respondent
placed heavy reliance for its contention that, due to the lack of approved
building plans, the use and occupation of the property was impliedly
prohibited by s 4(1).

[24] In Berg River Municipality the municipality sought a final interdict
preventing Zelpy, the respondent company, as property owner from occupying
or using certain buildings on its property constructed without plans, until an
occupancy certificate had been issued by the municipality. Zelpy opposed the
application and in its counter-application sought an order directing the
municipality to take a decision on Zelpy‟s request for permission to use the
building in terms of s 14(1A). The municipality‟s refusal to issue a s 14(1A)
certificate was based on its stance that an occupancy certificate could, in
terms of s 14(1)(a), only be issued in respect of buildings constructed in
accordance with approved building plans. Zelpy contended that the criminal
sanction in s 14(4)(a) was adequate, rendering an interdict unnecessary. In
the counter-application the central question was whether s 14(1A) permitted a
local authority to grant permission for a building to be used where the building
had been erected without its approval.

[25] In deciding these issues, Rogers J reasoned that, since Zelpy had
been occupying the buildings whithout approved plans, the erection of the
buildings was unlawful in terms of s 4(1), but that „that section does not state,
at least not expressly, that it is unlawful to use a building which has been
unlawfully erected‟.24 The learned Judge reasoned further that the
unlawfulness of Zelpy‟s use of the buildings is to be found by implication and
that that implication is to be found, not in s 14(4), but rather in s 4(1). Rogers J

23 Berg River Municipality v Zelpy 2065 (Pty) Ltd [2013] ZAWCHC 53; 2013 (4) SA 154
(WCC).
24 Ibid para 23.

opined that one of the Act‟s main purposes was to ensure that buildings will
be safe and suitable for the intended use. He observed that:
„[t]he erecting of a building is not an end in itself; a building is erected so that it may,
upon completion, be occupied and put to use. The reason the Act forbids the erecting
of buildings without approved plans and provides for their demolition if they are
unlawfully erected is to prevent the existence of buildings which, because of the
absence of approved plans, may be unsafe and unsuitable for use (even though no
enquiry into safety and suitability is required in order for the act of erecting to be
unlawful or in order to obtain an interdict or a demolition order). Even when a building
has been erected in accordance with approved plans, s 4 does not permit it to be
used or occupied without the local authority‟s further approval. This is a further
mechanism to ensure that the building is safe and suitable for occupation, as is
apparent inter alia from the requirement for the certificates specified in ss 14(2) and
14(2A).‟25

[26] The learned Judge furnished comprehensive reasons for his
conclusion that s 4(1) contains an implied prohibition against the use or
occupancy of a building in the absence of approved plans. He found support
for his conclusion in the texts of ss 14(1) and 14(1A), the legislative history of
s 14 and the absurdity of reading into the present wording of the introductory
part of s 14(4)(1A) the words „or without‟ (ie that it would then read: „. . .
erected or being erected with the approval of a local authority or without [such
approval]‟. Rogers J found further support in the textual construction of the
two penalty provisions in ss 4(4) and s 14(1)(a) respectively. He reasoned
thus: „[t]here is a further reason for implying the prohibition in s 4(1) rather than s
14(4)(a). In the case of s 4, there is a prohibition in s 4(1) and an offence created in s
4(4). In the case of s 14, the prohibition and offence are not separately legislated –
the sole source of unlawfulness is the offence created by s 14(4)(a). By implying into
s 14(4)(a) words which would extend its operation to buildings erected without
municipal approval one would be establishing a wider criminal offence than the one
expressly created by the lawmaker. The scope of penal provisions must be conveyed
with reasonable clarity . . .  This is a further obstacle to implying words into s
14(4)(a), and it is only by some such implication that s 14(1A)‟s scope could sensibly
be read as including buildings erected without municipal approval. The same difficulty

25 Ibid para 26.

does not exist in s 4. Although the prohibition in s 4(1) necessarily implies, in the
context of the Act as a whole, a prohibition against use, it is not necessary, and . . .
probably not permissible, to make the same implication in s 4(4), which expressly
criminalises the erecting (not the use) of a building in contravention of s 4(1)) and
authorises a penalty expressed with reference to the number of days on which the
person was engaged in erecting (not using) the building.‟26

[27] While the reasoning in Berg River Municipality appears, on the face of
it, rather attractive, the conclusion that s 4(1) contains an implied prohibition
against use or occupancy presents serious difficulties. First, the effect of such
an implication may result in an offending party falling foul of a criminal
sanction by attributing an implied meaning to a statutory provision. However,
penal provisions must not only be stipulated with reasonable clarity,27 but
must also be interpreted strictly where there may be ambiguity.28 The second
difficulty is that there is no apparent reason why one must perforce read an
implied prohibition against use or occupancy in s 4(1) when ss 14(1)(a) and
14(4)(a) expressly deal with unlawful use or occupancy where there are
approved building plans. Where there are none, the local authority has other
remedies available to it to enforce the provisions of the Act. It is well
established that great caution must be exercised when seeking to read an
implied meaning into a statute. That can only be done when implication is
necessary to give effect to the statutory provision as it stands. In addition, the
implication must be necessary so that the ostensible intent of the lawmaker is
realised or to make the legislation workable. This approach was first laid down
authoritatively by this court in Rennie NO v Gordon NO and another,29 and
followed thereafter in a long line of cases in this court and in the Constitutional
Court, most recently in Masetlha v President of the Republic of South Africa
and others.30 I am unable to discern such a need as far as s 4(1) is
concerned. And, importantly, the difficulties outlined above strongly militate
against this implication. A strained interpretation which entails the implied

26 Ibid para 38.
27 University of Cape Town v Cape Bar Council & another 1986 (4) SA 903 (A).
28 Rex v Milne and Erleigh (7) 1951 (1) SA 791 (A ) at 823B-F.
29 Rennie NO v Gordon NO and another 1988 (1) SA 1 (A) at 22E-F.
30 Masetlha v President of the Republic of South Africa & another; 2008 (1) SA 566 (CC) para
192.

meaning with its concomitant difficulties, propounded in Berg River
Municipality, points inescapably to a need for legislative review and
correction, if required. Confronted with these difficulties in the course of the
debate, the respondent‟s counsel was driven to concede that the approach in
Berg River Municipality on this aspect presents insurmountable obstacles.
Counsel consequently reverted to what was termed, „the respondent‟s
principal contention‟, namely the lack of an occupancy certificate and the
effect of s 14(1)(a), read with s 14(4)(a), discussed above.

[28] To sum up with regard to this first issue: non-compliance with ss 4(1)
and 14(1) does not render the parties‟ lease agreement void and
unenforceable. There is no basis to justify reading an implied meaning into s
4(1) that the use or occupancy of a building which has no approved plans is
prohibited. I discuss next the respondent‟s alternative contention that the
property was not fit for the purpose for which it had been let, since occupancy
would have rendered the respondent liable to criminal prosecution under s
14(4)(a).

[29] The respondent was at liberty to request the local authority to pursue
the remedies available to it in terms of the Act, had the need arisen to do so.
The conclusion is compelling that the respondent, with full knowledge of the
lack of an occupancy certificate, had consented to use and occupation under
the prevailing circumstances. The respondent received exactly what it had
bargained for – office accommodation refurbished to its needs, in a building
with an outstanding occupancy certificate which, to its knowledge, the owner
(the appellant) was in the process of obtaining. The respondent never
complained of this alleged unfitness for letting, and only did so after it had
vacated the property and to avoid the consequences of being held to a
contract it had freely entered into.31

[30] In the premises, the appeal must be upheld and the cross-appeal must
fail. Although the appellant had in its summons initially sought payment from

31 Compare: Odendaal v Ferraris 2009 (4) SA 313 (SCA).

1 July 2014, in this court it altered that relief, seeking payment from 1
December 2014. The following order is issued:

1.
The appeal is upheld with costs.
2.
The order of the high court is set aside and substituted with the
following:

„Judgment is granted in favour of the plaintiff in the sum of
R7 867 548.78 together with interest at 8% per annum from
1 December 2014 to date of payment and costs‟.
3.
The cross-appeal is dismissed with costs.

________________________

S A MAJIEDT

JUDGE OF APPEAL

APPEARANCES

For Appellant:

D T v R du Plessis SC
Instructed by:

Mageza Raffee Mokoena Inc,
Johannesburg
Lovius Block Attorneys, Bloemfontein

For Respondent:

M P van der Merwe SC, with C de
Instructed by:

Villiers

Delport van den Berg Attorneys,

Pretoria

Honey Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
1 December 2017

STATUS: Immediate

WIERDA ROAD WEST PROPERTIES (PTY) LTD v SIZWENTSALUBAGOBODO
INC (1156/16)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (the SCA) today unanimously upheld an appeal from
the Gauteng Local Division of the High Court, Johannesburg with regard to the
validity of a lease agreement which contravenes certain provisions of the National
Building Regulations and Building Standards Act, 103 of 1997 (the Act).

The high court had found the lease agreement to be valid but unenforceable, due to
the contravention of s 4(1) of the Act (the lack of approved building plans in respect
of the leased property) and s 14(1) of the Act (the lack of an occupancy certificate in
respect of the leased property).

The SCA held that the penal sanctions in these legislative provisions (ss 4(4) and
14(4)(a) respectively), were clearly regarded by the Legislative as adequate sanction
in cases where these provisions are contravened. The SCA held further that the
Legislature did not intend private contracts of, for example, lease, which contravene
these sections, to be invalid as a further sanction. Lastly, the SCA held that there is
no justifiable basis for reading an implied meaning into s 4(1) that the use or
occupancy of a building which has no approved plans is prohibited. The SCA
consequently upheld the appeal with costs and dismissed the cross-appeal with
costs.

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