Owners of buildings and their tenants will be prosecuted if they don’t have a valid occupation certificate. This is the message that is being sent out by most of the major metropolitan councils and the others are soon to follow.

Any person or organization that occupies a building or a portion of a building without a valid occupation certificate is guilty of an offence that is punishable by law. The councils are taking action in terms of section 14 of Act number 103 that was already promulgated in 1977.

Action taken against defaulters includes spot fines issued by the Fire Departments, termination of services and legal action that is taken in certain instances. Mr. Jeremy Rossouw, spokesperson for Building Inspection and Certification Services (BICS), said that a number of tenants and landlords that the group consulted with felt that this is, as was stated by some, “the latest money making racket of the councils”.

The counter response to this is that the largest portion of these people doesn't understand the severity of the matter in as far as noncompliance is concerned. The Metros and Local Councils are obliged to take responsibility for the safety and security of its citizens and to uphold and enforce the laws of the country.

Owners of buildings and their tenants should also be made aware that insurance companies might refuse to honor claims that resulted from fire or public liability should the premises not comply with the Act at the time of the incidence.

Mr. Rossouw pointed out that noncompliance also effects the banks that finance these buildings since this will severely impact on the income potential of the property, which is in most instances, the banks security. In the case of a Council taking action income can be lost and this situation can be even worst in the case of fire or structural collapse. It is understood that some banks are withholding final payment on new developments until the lender can present the bank with a valid occupation certificate.

The only issue that is currently slowing down action from the Councils is staff shortages; however, systems are being put in place to accelerate the process. For the moment the Council’s are however coping with the resources they have and will refuse occupation and the connection of services to any new development with outstanding occupation certificates.

Another issue that most role-players in the property industry are not aware off is the fact that a new occupation certificate needs to be applied for every time a new occupier moves into a building, or premises within the building. In the case of a shopping centre the main occupation certificate for the centre is therefore only valid if all the tenants in the centre have a valid occupation certificate.

The best advice to all landlords and role-players in the property leasing industry is to request proof of a valid occupation certificate before occupation is granted. It is possible to obtain a temporary certificate from the council in certain instances.

BICS is a private organization that provides consultancy services and assistance in the field of occupation certification to property owners and tenants.

The City of Johannesburg (CoJ) has served notice on Bel Air Mall (Pty) Limited, the developer of Bel Air Mall (Shopping South Africa, September 2005) and Concor Building (Pty) Limited, to immediately stop construction and demolish what has already been built of the R300 million, 25 000 m2 centre on the corner of North Riding’s Hans Strijdom Road and Bellairs Drive.

The centre is due to open in March next year but it appears that building plans have not been submitted or approved and the land on which the centre is being built is still zoned for agricultural purposes.

The remaining board members of the company (after the resignation of three directors) are brothers Antonys (Tony) and Dimitri Theodosiu.  The brothers also developed Comaro Crossing, Agora and Lonehill shopping centres.

The order sought by CoJ is that Bel Air Mall (Pty) and Concor are interdicted and restrained from erecting, causing or permitting to be erected, any buildings in contravention of the National Building Regulations and Building Standards Act (103/1977 as amended) on the property until such time as the required building plans are approved.  The second part of the order is to restrict Bel Air Mall from using or occupying the premises until the required occupancy certificates are issued by the CoJ.

Thirdly, Bel Air Mall has to notify all occupiers and prospective occupiers of the buildings that no certificate of occupancy has been issued by the CoJ and that any occupancy without it, constitutes a criminal offence. Fourthly, that Bel Air Mall is ordered to demolish the buildings and failing such compliance, the Sheriff of the Court will be authorized to demolish all the buildings at Bel Air Mall’s expense.

In his founding affidavit, Makgane Solomon Sekgota, assistant director: legal services of the CoJ states that , during March this year, a CoJ building inspector visited the construction site.  The inspector, one Robert Dann, conducted an inspection with Concor’s site foreman.  Dann reported that a shopping centre was being erected on the site, determined that no building plans had been approved and advised the foreman that building had to stop instantly.  Dann issued the requisite notice to the foreman.

Later that month Dann visited the site and found that, despite the notice, building had proceeded and was proceeding.  The CoJ instructed its attorneys to take action.  The attorneys instructed Bel Air Mall to cease construction within 14 days of the notification or to obtain the approval of building plans.  At the same time, the attorneys advised Bel Air Mall’s attorneys of record who were acting for the same developers in an action in regard to Lonehill shopping centre in Sandton’s Lonehill where, again, building plans had not been approved for certain extensions to the centre, and where tenants, including Woolworths, were trading without the necessary certificates of occupancy.  In his affidavit, Sekgota states: “I submit that it is apparent that they (the brothers) are the controlling minds directing the illegal conduct of Bel Air Mall and Immobili Retail Investments and exhibit a proclivity for flouting the law.”

During July, building inspector Dann again visited the site and again observed that building work had proceeded and was proceeding.  Sekgota concluded in his affidavit that Bel Air Mall had been warned that its activities are in breach of the National Building Regulations but had failed either to terminate or procure the termination of the contraventions.  He added that they would not do so without a court order.

That, at least, is the theory.  But in the previous action, on similar grounds, the brothers were to have been stopped at Lonehill shopping centre.

Since 1999 Lonehill has been under continuous construction.  In November 2002 permission was granted to add an extension to Mike’s Kitchen and others, on condition that Lonehill Boulevard was widened, a traffic light was installed and some 10% of the site would be landscaped.  Apart from the new retail space, the rest has not been done.  In November 2003, a further expansion was started (to house Woolworths and others) despite the brothers’ failure to comply with the requirements of the first permission.

In the meanwhile, Mike’s Kitchen and others had taken occupancy without the required certificate of occupancy.

Building proceeded with no building plans being submitted, with contraventions of the zoning regulations and actual contraventions of building regulations.  The CoJ attempted to stop the construction but the instruction was ignored.

The CoJ took action against the brothers.  It applied for an order stating that Immobili was not entitled to erect or cause to be erected any buildings on contravention of the National Building Regulations on the site.

Similar allegations have been leveled at the brothers in respect of the Agora Centre in the Fourways Gardens area and also Comaro Crossing in Johannesburg’s Oakdene suburb.

The critical aspects are (a) whether, if the CoJ succeeds in its action against Bel Air Mall, it will have the will to proceed with demolition, similarly in regard to the other centres, (b) it will take action against the tenants trading without the necessary occupancy certificates, (c) whether it will insist on the approval of and compliance with site development plans and environmental impact assessments, (d) whether it will insist on compliance with the requirement that a developer should advise the local authority that it is to start construction, (e) whether it will insist on a site undergoing the necessary rezoning application for the required rights and why, as far as can be ascertained , the Department of Labour has not investigated the death of a labourer at the Bel Air Mall site when part of a slab collapsed.

Major proposed tenants at Bel Air Mall are Woolworths and Spar.  Other tenants include Ackermans, Mica, Liquor City, Clicks and Musica.