Ruling breaks new ground on property approvals
Please also keep a look out for our Article on the Spacial Land Use Management Act (previously referred to as SPLUMB) in the September Issue of Asset Magazine. Also see our article on the Right to Light that appeared in the June Issue ( http://www.assetmag.co.za/issue12/files/2.html )
Gareth Shepperson
Ruling breaks new ground on property approvals
A damning judgment delivered by the Supreme Court of Appeal last week could see thousands of homes and offices in South Africa demolished and property developers facing criminal charges.
The judgment, which upheld an earlier judgment of the Eastern Cape High Court, was delivered by five of the country's top judges. The case involved a Rhodes University tax professor whose luxury R8 million home at Kenton-on-Sea near Port Alfred was built without the necessary planning permits. The judgment comes after seven Hight Court applications over 10 years opposing Matthew Lester's multi-million rand 'mansion'.
The Supreme Court judges said that when a building was erected without approved plans in terms of the National Building Regulations, the court had no discretion, but to 'enforce statutory prohibitions.'
The judges further noted that in Lester's own words he, 'walked the officials of the various departments through the plans resulting in them being approved on the same day'. However none of these new plans were shown to the neighbour who had a vested interest in the development.
In bringing the application, the Haslam family, who own a cottage behind the Lester property, said that the building of two dwellings on the property contravened Lester's title deed and were not in accordance with the original plans.
The court also found in Lester's case that his constitutional right to housing would not be infringed with the demolition of his house.
Furthermore it was stated that a magistrate shall have the jurisdiction to 'make an order prohibiting any person from commencing or proceeding with the erection of a building or authorising such local authority to demolish such buildings if the magistrate is satisfied that such erection is contrary to or does not comply with the provision of the act'.
Building a dwelling without approved building plans, they concurred was a criminal offence.
A 'failure' by local authorities to implement a demolition order in the case of an illegal dwelling would be, the court found, 'an undermining of the legal principles'.
Last week the Sunday Tribune identified several homes in some prestigious Durban neighbourhoods that fall into the demolition category outlined in the judgment.
In Montpelier Road in Morningside, attorney Shahir Ramdass is pitted against the trustees of the Sayed Trust in an acrimonious battle over a three-storey dwelling.
According to Ramdass the owners did not submit plans for the apartment complex. After weeks of bombarding the Department of Land Use Management and Enforcement with complaints, Ramdass was finally successful, on July 26 in getting the senior manager of enforcement and prosecution, Abdull Domingo, to issue a stop-work notice. Ramdass has welcomed the ruling.
'This business of applying for planning permission retrospectively is a travesty.
'This building (in Montpelier Road) started in January. Can you honestly believe that the planning department was completely unaware of the construction until I brought it to their notice? Either they are incapable of doing their jobs, or they are deliberately turning a blind eye to this sort of infringement, which ruins property values in prestigious areas,' he said.
Earlier this year the Sunday Tribune reported that a stopwork order had been served on Thobeka Madiba-Zuma, one of President Jacob Zuma's wives, for unauthorised alterations to an R8.8m home in Monteith Place, Durban North.
A stop-work order is in force pending assessment of the plans.
Also in Monteith Place, a legal wrangle rages over a massive complex owned by Dumisane Dube.
Dube built a fourth storey on his home without planning approval or the consent of his neighbours. Dube has also added a large, three-storey 'garden cottage' without plans. The extended structures on the property have completely blocked his neighbours' views of the sea.
In May this year the city confirmed that Dube had ignored three stop-work orders.
Legal property expert KZN attorney Kay Naidoo of Livingston Leandy said that while these regulations were contained in the statute books, this was the first time that they had been spelt out in a supreme court of appeal judgment.
'There is absolutely no doubt that this will have a profound ripple affect on the building industry,' he said.
'In my view it will prompt aggrieved people, particularly neighbours of properties where building plans have not been approved, and where views for example have been compromised, to go the legal route and force the municipality to take action.'
A decade ago, Naidoo represented a Durban businessman, Greg Paola, whose home in Durban North's Riverside area had been compromised by an illegal structure, which blocked his view.
Although the Supreme Court ruled in his favour in 2003 the property was never demolished. The new ruling could finally give Paola the relief he has sought.
Musa Mbhele, deputy head of the development planning environment and management unit, said: 'Our legal team will need to study this judgment and consult within the legal fraternity before council pronounces on how it will deal with similar cases.'
Sunday Tribune
Gareth Shepperson
Ruling breaks new ground on property approvals
A damning judgment delivered by the Supreme Court of Appeal last week could see thousands of homes and offices in South Africa demolished and property developers facing criminal charges.
The judgment, which upheld an earlier judgment of the Eastern Cape High Court, was delivered by five of the country's top judges. The case involved a Rhodes University tax professor whose luxury R8 million home at Kenton-on-Sea near Port Alfred was built without the necessary planning permits. The judgment comes after seven Hight Court applications over 10 years opposing Matthew Lester's multi-million rand 'mansion'.
The Supreme Court judges said that when a building was erected without approved plans in terms of the National Building Regulations, the court had no discretion, but to 'enforce statutory prohibitions.'
The judges further noted that in Lester's own words he, 'walked the officials of the various departments through the plans resulting in them being approved on the same day'. However none of these new plans were shown to the neighbour who had a vested interest in the development.
In bringing the application, the Haslam family, who own a cottage behind the Lester property, said that the building of two dwellings on the property contravened Lester's title deed and were not in accordance with the original plans.
The court also found in Lester's case that his constitutional right to housing would not be infringed with the demolition of his house.
Furthermore it was stated that a magistrate shall have the jurisdiction to 'make an order prohibiting any person from commencing or proceeding with the erection of a building or authorising such local authority to demolish such buildings if the magistrate is satisfied that such erection is contrary to or does not comply with the provision of the act'.
Building a dwelling without approved building plans, they concurred was a criminal offence.
A 'failure' by local authorities to implement a demolition order in the case of an illegal dwelling would be, the court found, 'an undermining of the legal principles'.
Last week the Sunday Tribune identified several homes in some prestigious Durban neighbourhoods that fall into the demolition category outlined in the judgment.
In Montpelier Road in Morningside, attorney Shahir Ramdass is pitted against the trustees of the Sayed Trust in an acrimonious battle over a three-storey dwelling.
According to Ramdass the owners did not submit plans for the apartment complex. After weeks of bombarding the Department of Land Use Management and Enforcement with complaints, Ramdass was finally successful, on July 26 in getting the senior manager of enforcement and prosecution, Abdull Domingo, to issue a stop-work notice. Ramdass has welcomed the ruling.
'This business of applying for planning permission retrospectively is a travesty.
'This building (in Montpelier Road) started in January. Can you honestly believe that the planning department was completely unaware of the construction until I brought it to their notice? Either they are incapable of doing their jobs, or they are deliberately turning a blind eye to this sort of infringement, which ruins property values in prestigious areas,' he said.
Earlier this year the Sunday Tribune reported that a stopwork order had been served on Thobeka Madiba-Zuma, one of President Jacob Zuma's wives, for unauthorised alterations to an R8.8m home in Monteith Place, Durban North.
A stop-work order is in force pending assessment of the plans.
Also in Monteith Place, a legal wrangle rages over a massive complex owned by Dumisane Dube.
Dube built a fourth storey on his home without planning approval or the consent of his neighbours. Dube has also added a large, three-storey 'garden cottage' without plans. The extended structures on the property have completely blocked his neighbours' views of the sea.
In May this year the city confirmed that Dube had ignored three stop-work orders.
Legal property expert KZN attorney Kay Naidoo of Livingston Leandy said that while these regulations were contained in the statute books, this was the first time that they had been spelt out in a supreme court of appeal judgment.
'There is absolutely no doubt that this will have a profound ripple affect on the building industry,' he said.
'In my view it will prompt aggrieved people, particularly neighbours of properties where building plans have not been approved, and where views for example have been compromised, to go the legal route and force the municipality to take action.'
A decade ago, Naidoo represented a Durban businessman, Greg Paola, whose home in Durban North's Riverside area had been compromised by an illegal structure, which blocked his view.
Although the Supreme Court ruled in his favour in 2003 the property was never demolished. The new ruling could finally give Paola the relief he has sought.
Musa Mbhele, deputy head of the development planning environment and management unit, said: 'Our legal team will need to study this judgment and consult within the legal fraternity before council pronounces on how it will deal with similar cases.'
Sunday Tribune
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