Problem Buildings By-law, 2015
- Published in KwaZulu-Natal Provincial Gazette 1490 on 11 September 2015
- Assented to on 24 June 2015
- Commenced on 11 March 2016
- [This is the version of this document from 11 September 2015 and includes any amendments published up to 10 August 2023.]
PreambleWHEREAS the eThekwini Municipality recognises the need to identify, control and rehabilitate problem buildings;WHEREAS the eThekwini Municipality recognises the right to housing, as well as the need to address the infrastructural, social and economic disparities of the past;WHEREAS the eThekwini Municipality has competence in terms of Part B of Schedule 4 of the Constitution of the Republic of South Africa, relating to such matters as building regulations, municipal planning and municipal health, and competence in terms of Part B of Schedule 5 of the Constitution of the Republic of South Africa, relating to such matters as the control of public nuisances;AND WHEREAS the eThekwini Municipality has competence, in terms of section 156(2) of the Constitution of the Republic of South Africa, to make and administer By-laws for the effective administration of the matters which it has the right to administer;NOW THEREFORE the eThekwini Municipal Council, acting in terms of section 156 read with Parts B of Schedules 4 and 5 of the Constitution of the Republic of South Africa, 1996 and read with section 11 of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), hereby makes the following By-law:
1. DefinitionsIn this By-law, unless the context indicates otherwise –"authorised official" means a person authorised to implement the provisions of this By-law, including but not limited to–(a)peace officers as contemplated in section 334 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977);(b)municipal or metropolitan Police Officers as contemplated in the South African Police Service Act, 1995 (Act No. 68 of 1995); and(c)such employees, agents, delegated nominees, representatives and service providers of the Municipality as are specifically authorised by the Municipality in this regard: Provided that for the purposes of search and seizure, where such person is not a peace officer, such person must be accompanied by a peace officer;"building" has the meaning assigned to it in section 1 of the National Building Regulations and Building Standards Act, 1977 (Act No. 103 of 1977);"competent person" means a competent person as contemplated in the National Building Regulations, Government Notice No. R. 2378 of 12 October 1990;"compliance notice" means a notice issued to the owner of a problem building in terms of section 10 of this By-law;"Constitution" means the Constitution of the Republic of South Africa, 1996;"Council" means the eThekwini Municipal Council, a municipal council referred to in section 157(1) of the Constitution;"hijack" in relation to a building means to unlawfully take over the management and control of a building, including but not limited to the collection of rentals from the owner, occupier or managing agent;"managing agent" means a person who is appointed by –(a)an owner of a building to maintain and manage a building on the owner’s behalf; or(b)a tenant of the owner who has the power or obligation to sub-let, maintain and manage the building;"Municipality" means the eThekwini Municipality, a category A Municipality as envisaged in terms of section 155(1) of the Constitution and established in terms of Provincial Notice No. 43 of 2000 (KZN);"occupier" includes any person in actual occupation of a building or part of a building regardless of the title under which he or she occupies such building;"owner" means the person in whose name the land on which a building is situated is registered in the relevant deeds office or–(a)in the case of a trust, the trustees of that trust;(b)the registered owner of a sectional title unit, where the interior of a sectional title unit is at issue;(c)the trustees of a body corporate, where the common property of a sectional title scheme is at issue;(d)the administrator of the body corporate of the sectional title scheme where the common property of a sectional title scheme is at issue and there are no elected trustees of the body corporate;(e)the executor, where the─(i)owner of the building is deceased and the building has not yet been transferred out of the deceased’s estate; or(ii)estate of the owner has been sequestrated;(f)the curator, where the owner of the building has been declared by any court to be incapable of managing his or her own affairs or a prodigal;(g)the administrator, where the owner of the building is a mental health care user as defined in section 1 of the Mental Health Act, 2002 (Act No. 17 of 2002);(h)the liquidator, where the owner of the building is a judicial person or a trust and has been liquidated;(i)the former members of a close corporation which has been deregistered and in respect of which they have a continuing liability as contemplated in section 26 of the Close Corporations Act, 1984 (Act No. 69 of 1984), read with sections 83(2) and (3) of the Companies Act, 2008 (Act No. 71 of 2008);(j)the business rescue practitioner, where the owner of the building has been placed under business rescue;(k)the managing agent, where the owner of the building is absent from the Republic of South Africa or where the Municipality has, after reasonable attempts, not been able to determine his or her whereabouts; or(l)every person who is entitled to occupy or use a building, or who does occupy or use a building, where–(i)the owner of the building is absent from the Republic of South Africa;(ii)the Municipality has, after reasonable attempts, not been able to determine the whereabouts of the owner of the building; and(iii)there is no managing agent;"problem building" means a building or portion of a building which─(a)is derelict in appearance or is showing signs of becoming unhealthy, unsanitary, unsightly, or objectionable;(b)has been abandoned by the owner, or appears to have been abandoned by the owner, regardless of whether or not rates or service charges are being paid;(c)is overcrowded;(d)has been hijacked;(e)has been the subject of one or more written complaints, charges or convictions regarding criminal activities being conducted in the building, as confirmed in writing by a member of the Durban Metropolitan Police Service or the South African Police Service;(f)is illegally occupied;(g)has refuse or waste material unlawfully accumulated, dumped, stored or deposited;(h)has been unlawfully erected or has a part which has been unlawfully erected;(i)has been changed and its subsequent usage is unauthorised;(j)is partially completed, or structurally unsound or showing signs thereof, and is or may be a threat or danger to life and property; or(k)is in contravention of one or more of the Municipality’s By-laws.
2. Interpretation of By-lawIf there is a conflict of interpretation between the English version of this By-law and a translated version, the English version prevails.
3. Objects of By-lawThe objects of this By-law are to–
4. Application of By-lawThis By-law applies to all areas which fall under the jurisdiction of the eThekwini Municipality and is binding on all persons to the extent applicable.
Identification of problem buildings
5. Notice of intention to declare building a problem buildingIn the event that the Municipality is of the opinion that a building should be declared a problem building, it must serve a written notice on the owner–
6. Declaration of a problem building
Control of problem buildings
7. Profiling problem buildings
8. Ban on new occupantsThe Municipality may, once a problem building has been profiled, apply to court for an interdict restraining the owner and any managing agent from–
Rehabilitation of problem buildings
9. Engagement with owners
10. Engagement with occupiers
11. EvictionWhere the owner of a problem building fails to comply with a compliance notice, the Municipality may, after having complied with the engagement process contemplated in terms of section 10, apply to court for the eviction of the occupiers.
12. Unsafe problem buildings
13. Entry by authorised official
14. Powers of authorised officialsAn authorised official may, when entering a building–
15. Service of notices
16. Combined noticesThe Municipality is not restricted, when issuing a notice in terms of this By-law for –
17. IndemnityThe Municipality and any authorised official is not liable for any damage caused by anything lawfully done or omitted by the Municipality or authorised official in carrying out any function or duty in terms of this By-law.
18. Lawful instructionsFailure to comply with a lawful instruction of an authorised official constitutes a contravention of this By-law.
19. Recovery of costs
20. Vicarious liability
21. OffencesAny person who–
23. PresumptionsA person charged with an offence in terms of this By-law who is–
26. Short title and commencementThis By-law is called the eThekwini Municipality: Problem Buildings By-law, 2015 and takes effect six months from the date of publication thereof in the Provincial Gazette or on such earlier date as may be determined by the publication of a commencement notice in the Provincial Gazette.
History of this document
11 March 2016
11 September 2015 this version
24 June 2015