Kirk’s company a law unto itself - judge
MBABANE – Businessman Tom Kirk’s company, Diesel Services, has become a law unto itself, says Judge Ticheme Dlamini.
The High Court judge said the above when he concurred with a submission made on behalf of the Matsapha Town Council, to the effect that Kirk’s company had become a law unto itself and had no respect for the local authority and the law it administered.
Diesel Services Limited, where Kirk has been a director for over 30 years, constructed a warehouse extension on Kirk’s land in Matsapha despite that a permit to carry out the construction work had been declined by the Matsapha Town Council.
Yesterday, Judge Dlamini ordered Diesel Services Limited to demolish the warehouse extension. Diesel Services is said to have taken advantage of the civil unrest last year and continued with the construction notwithstanding that it was being challenged in court.
Construction
The construction work was carried out on Portion 2 of Lot 445 in Matsapha. The law which Diesel Services Limited was said to have violated compelled the company to first apply to the town council for a permit to undertake the construction.
The Urban Government Act No.8 of 1969 forbade Diesel Services from undertaking the construction without first having been granted a permit. In terms of Section 5 of the Act, Matsapha Town Council has the mandate and power, among other functions, to control and manage the affairs of the council
Matsapha Town Council took the matter to court on June 18, 2021, seeking an interdict restraining Kirk’s company from constructing the warehouse extension. The town council sought the interdict, because the construction was carried out in contravention of Section 10 (1) of the Building Act No.34 of 1968.
This section of the Act states that no person shall (a) conduct operations for the construction or demolition of a building; or (b) change the use of a building; unless the relevant permit has been obtained. The town council also sought an order interdicting Diesel Services, or anyone acting on its behalf, from conducting operations for the construction of building works, which were at the time underway.
The matter was removed from the court roll on June 18, 2021, because Kirk made assurances not to proceed with the construction pending the issuance of the permit. The company filed revised drawings for its building.
While the drawings were still under consideration by the town council, Diesel Services is said to have taken advantage of the week of civil unrest and continued with the construction by erecting the building’s structural steel framework.
The town council reinstated the matter into court, for the roll of July 13, 2021 and Judge Dlamini became seized with it. Judge Dlamini ordered that supplementary affidavits be filed since Diesel Services had continued with the construction notwithstanding the challenge in court.
According to the town council, while on routine patrol on May 8, 2021, its inspectorate division noted some site preparation and fencing activity being undertaken on the plot.
This work, according to the town council, was carried out under the supervision of Kirk, who was cautioned by council officers and reminded to comply with provisions of the Building Act. Kirk is said to have on May 19, 2021 applied for a permit as required by the Act and the Standard Building Regulations made under Section 37 of the Act.
On June 9, 2021, the town council submitted, that the inspectors noted that the builders were back on site setting up the foundations of the structure. The inspectors are said to have spoken to Kirk and requested him to stop the unlawful construction. He was served with a contravention notice dated June 9, 2021.
Permit
The notice advised the company to stop the construction work, pending the grant of a building permit by the town council.
The application for the permit was denied by the town council, according to a letter dated June 11, 2021, which was hand delivered to Kirk. The permit was denied because the site plan showed that the parking bays to service the development were located outside the plot, hence encroaching onto someone else’s property. Kirk’s company was advised to revise the site plan and the encroachment was rectified.
In its supplementary papers, Matsapha Town Council said Kirk’s company demonstrated a conduct of being hell-bent on being a law unto itself.
“This is evidenced by the fact that upon return from the week of unrest, on July 6, 2021, the municipality found that the respondent (Diesel Services) had taken advantage of the situation and gone on to unlawfully erect steel structural framework upon Portion 2 of Farm 445, Matsapha,” the town council submitted.
The company was served with another contravention notice on July 6, 2021 and Kirk applied for permit again. The application was declined because it made no provision for customer parking, including refuse and loading area. The town council stated that Diesel Services continued with the construction from July 6, 2021 while aware of its illegality and by July 15, 2021, the structure had a complete roofing of the steel structural frame and block work for the walls was being erected.
Matsapha Town Council applied for a punitive order, in the form of a demolition order of the structure because construction continued without regard that the matter was pending in court.
Opposing
In Diesel Services’ opposing papers, Kirk denied carrying out any construction on May 8, 2021. He also denied that the construction encroached onto another property. Kirk also denied carrying out any construction, but said his company only enforced the retaining wall which housed utility pipes that were out in the open. Kirk said the town council refused to grant the permit in bad faith. He argued that other businesses, Spar and Build it, were granted building permits without any parking and delivery bays. He further argued that there was nothing stopping the construction from continuing.
When a building permit was neither granted nor declined, construction may be carried out only to foundation level.
Judge Dlamini said there was no mistake or ignorance of the law on Kirk’s part because he told the court that he had over 30 years experience working with local authority and as director of Diesel Services.
Requirements
“He is fully aware of the legislative requirements for construction within the local authority. The respondent committed an intentional and unlawful defiance of the applicant’s (town council) authority, thereby violated the laws administered by it.
“I am inclined, and do agree, with the submission made on behalf of the applicant that the respondent, represented by its director, has become a law unto itself, and has no respect for the local authority and the laws it administers,” said the judge. Matsapha Town Council was represented by Dumisani Hleta of DEMHleta Legal. Sifiso Jele of S. Jele Attorneys appeared for Diesel Services Limited.