The owner of the collapsed Ormonde building was once ordered by a court to demolish part of her building that had encroached onto a neighbour’s property.
Tesmin Ghood, 71, the woman whose company New Order Investment 90 is at the centre of the recent Ormonde building disaster in which nine workers died, was in 2014 found to have illegally extended her property in Crown Mines without the City of Johannesburg’s approval.
According to a 2014 high court judgment the applicant Boss Foods, which bought a R5.5m property in Crown Mines, took Ghood’s company Ingo Rehders Properties to court for encroaching on its land and won.
Boss Foods was situated next to three plots owned by Ingo Rehders Properties where an industrial warehouse development had been built.
According to the judgment, Ingo Rehders Properties began proposing an extension of its development in 2012, claiming it wanted to close the 2m gap separating the two properties to prevent people using the space as a thoroughfare.
An employee at Boss Foods told a representative of Ingo Rehders he would ask his employer for permission but “it wouldn’t be a problem”.
The refusal by the applicant to sign the documents presented by Abba is to me a clear indication of the lack of consent
— Judge Namhla Siwendu
However, judge Namhla Siwendu heard the employee was not authorised to grant such permission and the owner of Boss Foods had never consented to the encroachment.
“In my view this is consistent with the applicant’s contention that it did not grant consent. The exact extent of the encroachment, and the terms thereof, would have been a material issue to be agreed by the applicant and the first respondent.
“Such consent would have been properly granted by the sole member of the close corporation. The refusal by the applicant to sign the documents presented by Abba is to me a clear indication of the lack of consent,” said Siwendu.
Ghood’s company offered to compensate their neighbour R1,000 per square metre it took, but the offer was declined.
Despite this, the respondent proceeded with construction and began laying foundations in late 2012 and early 2013. Walls were erected in January 2013 before the required building plans had been approved by the municipality.
Siwendu noted the City of Johannesburg had issued a cessation notice in January 2013 after discovering construction was taking place without approved plans.
“The applicant’s founding affidavit clearly states the buildings were erected without any approved building plans. In its response, the first respondent simply denies and/or challenges the correctness of the basis of the application, but not the allegations of fact against it,” she said.
The first respondent is interdicted from continuing with any further unlawful construction that encroaches on the applicant’s property and that is not in accordance with the town planning requirements
— Siwendu
Approval for the plans was granted several months later in June 2013.
Siwendu found the developer had prior knowledge of the boundary between the two properties and had proceeded with construction despite this.
“The encroachment is not only unlawful, but the surrounding circumstances leading to the dispute, together with the conduct of the first respondent, borders on annexation of the applicant’s land. Consequently, at common law, a demolition order would have been, and is, appropriate,” she said.
Siwendu ruled in favour of Boss Foods, ordering the developer to demolish and remove all structures unlawfully built on the neighbouring property within 30 days.
“In the event the first respondent fails to execute the orders, the sheriff is to be authorised to procure the demolition and removal,” she said.
“The first respondent is interdicted from continuing with any further unlawful construction that encroaches on the applicant’s property and that is not in accordance with the town planning requirements.”
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