The recent collapse of part of a large partially completed shopping centre in Tongaat, KwaZulu-Natal and a Supreme Court of Appeal case in the Eastern Cape, has sharply focused the attention of local authorities and property owners on the risks in commencing with construction of building projects, prior to receiving local authority approval of building plans.

Apart from the dangerous repercussions which ensued following the Tongaat incident, including the unfortunate loss of life, if a property owner proceeds with construction of a building prior to approval by the local authority of building plans for the property, the owner risks facing a court order for the demolition of the unapproved building.

In the recent judgment of Lester v Ndlambe Municipality (514/12) (2013) ZASCA 95 (22 August 2013), the Supreme Court of Appeal (“SCA”)confirmed the decision of the Eastern Cape High Court in Grahamstown that a luxury completed home in Kenton be demolished, as the owner had proceeded without approved building plans.

The highly publicised case involved Matthew Lester (“Lester”), a tax professor at Rhodes University, who in 2001 decided that his property in Kenton on the Eastern Cape Coast would become his permanent home.  This necessitated the construction of a larger dwelling high up the slope of a dune.  Behind Lester's property was a holiday home owned by High Dune House (Pty) Ltd, whose shareholders and directors are Mr and Mrs Haslam (“Haslams”).  Lester's original plans contemplated a single storey pitched roof dwelling on the property with plans approved by Ndlambe Municipality (“the Municipality”), the second respondent, on 3 May 2002.  Prior to the construction of further buildings on Lester's property, Haslams had sweeping, panoramic views from their dwelling over the ocean.

Haslams had made it clear to the Municipality earlier on that they had an interest in the matter and required to be notified of Lester's building plans.  Haslams raised an objection to the construction of the second separate dwelling higher up on the dune because it contravened certain restrictive conditions of Lester's title deed, which prohibited more than one dwelling on the property.  Lester elected to continue building.

The first High Court application launched by Haslams applied for an interdict restraining Lester from continuing building operations pending the outcome of review proceedings.  This application was successful and Lester was interdicted from building further pending approval of plans.  Of significance is that Lester in his answering affidavit acknowledged that in the event of a successful review, he would have to demolish the existing structure due to the lack of approved plans.

Section 4(1) of the National Building Regulations and Standards Act 103 of 1977 ("the Act") provides that no person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act. Section 4(4) provides that a contravention of this section is a criminal offence and if convicted, renders one liable to a fine not exceeding R100 per day. Furthermore, section 21 of the Act entitles a local authority or the Minister of Economic Affairs and Technology to approach a magistrate for an order prohibiting any person from commencing or proceeding with the erection of a building, or authorising a local authority to demolish a building, if the magistrate is satisfied that such erection is contrary to or does not comply with the provisions of the Act or any approval or authorisation granted thereunder.

Lester's architect then amended the plans to convert the old (second) building to a boathouse and outbuildings which overcame the prohibition against the construction of more than one dwelling.

Due to Lester then needing to accommodate his frail mother in his home, he appointed a second architect to prepare plans which provided for a double storey building with a higher dome-shaped roof differing significantly from the original plans.  While these plans were passed by the Municipality in July 2003, neither the Municipality nor Lester notified Haslams of the new plans.  Haslams were accordingly completely unaware of the changed circumstances when the new dwelling commenced, assuming that building was still proceeding under the original approved plans.  When this was apparently not the case, a second application was launched to have the second plans reviewed and set aside.  This was successful and Lester consented to the order.

The Municipality then approved the plans subject to certain conditions, which included the change in the conditions of the title deed.  Haslams launched their third application for a review and setting aside of the conditional approval of the plans on the basis that the Municipality had no authority to approve the plans conditionally and that their purported conditional approval was ultra vires Section 7 of the Act.  The plans were set aside and referred back to the Municipality for reconsideration.  The Municipality again approved the plans but these were set aside with the Court refusing to send the matter back to the Municipality, instead issuing a declaratory to the effect that the plans "be not approved".  The effect of the order was that new building plans needed to be lodged.

The sixth application saw Haslams applying for a review and setting aside of the Local Authority resolution and substituting it with an order directing Lester to submit, within one month, building plans that comply with all applicable statutory and zoning provisions, failing which the Municipality must apply for an order that the dwelling be demolished.

Following the granting of the order, Lester submitted plans reflecting the removal of the second storey and replacing the domed roof with a flat roof.  The Municipality did not approve the plans and applied for the demolition order.  Lester instituted a counter application to permit him to alter the dwelling so to avoid such order.

The central disputes between the parties in the prior Eastern Cape High Court hearing concerned the questions whether the existence of the requisite jurisdictional facts ipso facto warrant a demolition order under the Act, whether a court has any discretion in deciding whether or not to order demolition, if such a discretion exists whether it is wide or narrow, and lastly whether an alteration of the dwelling as required by Lester should be ordered instead.

Alkema J in the Eastern Cape High Court made inter alia the following findings:

• Lester was no innocent victim of the Municipality’s incompetence;
• Lester's property is both judicially and administratively an unlawful structure in terms of the Act, entitling the Municipality to seek an order for demolition in terms of Section 21;
• Whereas the Municipality’s case against Lester turns of Section 4(1) read with Section 21 of the Act, Haslams rely on both the common law principles of neighbour law and statutory contraventions;
• In all cases where a demolition order is sought, the Court retains a discretion which has to be exercised judicially, that is in accordance with the dis-proportionality of prejudice test, bearing in mind the dictates of legal and public policy;
• Lester cannot avail himself of the rights enshrined in Section 26(3) of the Constitution;
• Legal and public policy required the Court to enforce the principle of legality and to uphold the rule of law by granting the demolition order.

The SCA agreed that the demolition order was warranted but were of the view that Alkema J "chose an incorrect path in reaching his conclusion".  Section 26(3) of the Constitution provides that no one may be evicted from their home or have their home demolished without a court order considering all relevant circumstances and that no legislation may permit arbitrary evictions.  The Court held that Section 26(3) must not only be read in its historical context, that is as a bulwark against forced removals, summary evictions and arbitrary demolitions of the shameful past dispensation, but also together with Section 26(1) and (2) which refers to everyone having access to adequate housing which the State must try and achieve.  The SCA held that Lester did not state anywhere in his papers that he would be rendered homeless and destitute by the demolition and hence the Court gave short shrift to the question whether demolition of Lester's property would infringe upon his right to access to adequate housing.

The Court then looked at whether the common law principles of neighbour law which are based on the principles of fairness and equity are applicable or not.  It was argued by Lester that the Court had a discretion in neighbour law cases premised on considerations of fairness, equity and justice, although the Court held that a public law remedy such as a demolition order in terms of Section 21 is quite different and that the dwelling is in an illegal structure not merely an encroachment.  Moreover it constitutes a criminal offence under Section 4(4) of the Act.

It was held that Courts have a duty to ensure that the doctrine of legality is upheld and to grant recourse at the instance of public bodies charged with the duty of upholding the law.  The SCA held that Local Government, like all other organs of State has to exercise its powers within the bounds determined by the law and such powers are subject to constitutional scrutiny, including a review for legality.  The power to approach a Court for a demolition order in terms of Section 21 is unquestionably a public power bestowed upon local authorities.  As such, its exercise must conform to the doctrine of legality.  It was held that the Municipality was statutorily and morally duty bound to approach the Court for a demolition order to uphold the law.

The Court then considered Lester's counter-application where he sought an order that the dwelling be partly demolished so that the designs would be acceptable to the Municipality.  However the Court held that an order for partial demolition would amount to the sanctioning of an ongoing legality and criminal offence in the face of an existing valid administrative decision and that the counter-application was therefore correctly dismissed by the previous court.

In concluding, the Court acknowledged that while one is acutely aware of the financial calamity, inconvenience and disruption which the demolition of what is plainly an expensive, luxurious dwelling, and a primary residence to boot, would cause Lester, the upholding of the doctrine of legality, a fundamental component of the rule of law, must inevitably trump such personal considerations.

David Warmback Contact: 031 575 7409 and warmback@wylie.co.za