THE Supreme Court has authorised the Municipal Council of Mbabane to demolish illegally constructed bedsitter flats at Manzana, ruling that money invested in an unauthorised building cannot be used to avoid demolition.
The ruling overturns an earlier High Court decision which, despite finding that the structure had been erected without municipal approval, declined to grant council a demolition order because the property owner had already invested substantial amounts of money in the development.
In a judgment delivered on Tuesday, the Supreme Court upheld council’s appeal and authorised it to immediately demolish the structure erected by Delisa Bongani Dlamini on an unsubdivided portion of Farm 1355, Manzana, Zone 1, within the Mbabane urban area.
The court further ordered Dlamini to pay the costs of demolishing the building, as well as the costs of the appeal.
The dispute arose after council discovered in July 2024 that construction of the bedsitter flats was underway without a valid building permit. According to the court papers, Dlamini was subsequently served with several notices directing him to stop construction and demolish the structure, but he failed to comply.
Council approached the High Court seeking an order to have the building demolished, arguing that the construction violated the Building Act of 1968 and had not been subjected to the required municipal approval.
The court papers further revealed that the property had previously been granted a temporary building permit in September 2020 to its former owner, Dan Mavuso. The permit was for the rebuilding of four rooms on their original position, together with a toilet and fencing. However, the permit had expired by July 2024 and had not been renewed.
In opposing council’s application, Dlamini argued that he had obtained permission from the Mangwaneni traditional authority to proceed with construction. He also argued that demolishing the building would cause him considerable financial prejudice because he had already spent substantial amounts of money on it.
The High Court, in its judgment delivered on February 26, 2025, found that Dlamini had no authority from council to construct the bedsitters.
However, it declined to grant the demolition order and instead directed council to consider an alternative measure.
Council was dissatisfied with this decision and approached the Supreme Court, arguing that the High Court had erred by refusing to order demolition despite the clear contravention of the Building Act.
In determining the appeal, the Supreme Court focused on Section 19(2) of the Building Act 34 of 1968, which provides for the demolition of building works undertaken in contravention of the Act.
The court found that once it had been established that the building was unlawfully erected without the necessary municipal approval, the High Court had no discretion to refuse a demolition order.
It emphasised that local authorities have a statutory duty to enforce building regulations and ensure that developments within their jurisdictions comply with the law.
The court held that allowing an alternative measure where the legislation specifically provides for demolition would undermine the principle of legality. It also dismissed Dlamini’s argument that permission from the traditional authority entitled him to proceed with construction.
The Supreme Court pointed out that the property fell within council’s jurisdiction and that the authority to approve building construction rested with the municipality.
It further observed that Dlamini knew from the outset that municipal approval was required but proceeded with construction despite receiving several notices to stop the work.
“The doctrine of legality precludes the court from coming to the assistance of a person such as the first respondent in this case,” the judgment stated.
The court consequently upheld council’s appeal and authorised it, in terms of Section 19(2) of the Building Act 34 of 1968, to forthwith demolish the illegal structure.
The judgment was delivered by Justice Mbutfo Mamba, with Justices Jacobus Annandale and Nkululeko Hlophe concurring.
