The Supreme Court of Appeal's decision to uphold an earlier judgment of the Eastern Cape High Court could have serious implications for South Africans who believe they are above the law when it comes to building a home. It could also have major consequences for those who have in the past flouted the law by building dwellings or offices that have not received the necessary approval from the municipality.
Matthew Lester, a tax professor at Rhodes University, inherited a property in Kenton-on-Sea near Port Alfred. The property had originally been purchased by his grandfather in 1937 and had been handed down through the family until Lester inherited it in 1997. The property fronted the Bushman's River and had unobstructed views of the ocean. At the time, the only improvement was a small shack situated at the foot of the property. Shortly after acquiring the property Lester made additions to the 'shack' as, in the words of the judgement, ‘rudimentary holiday accommodation’ for himself and his daughter.
In 2002 he submitted plans for a single storey, pitched roof house, and the plans were approved. A neighbour complained to the local authority that, as an interested party, he should have been given notice of the building plans before approval was granted. Although the dwelling did obstruct his view to some extent, the neighbour did not object to the height, but did object to a second structure as, according to the title deed, the property prohibited a double residence on the stand.
It was the start of a lengthy court battle that dragged through the courts for nine long years. Lester had the plans amended and converted the 'shack' into a boathouse and out buildings. However, in 2003 he appointed a new architect and had fresh plans drawn up. The new dwelling was bigger, featured a dome roof and completely blocked the neighbour’s view. According to Lester, he ‘walked the officials of the various departments through the plans’. The plans were approved on the same day, but, despite an undertaking to do so, no one informed the neighbour of the new design. The plans were subsequently set aside on review.
The legal battle led to seven High Court applications heard over nearly a decade, opposing the 'architectural eyesore' until it was eventually ruled that the offending structure had to be demolished. The Appeal Court upheld this judgement, saying that the dwelling had been erected unlawfully, without any approved building plans as required by 4(1) of the National Building Regulations and Building Standards Act 103 of 1977.
The judgement sends out a clear warning to those who do not follow the correct procedures. There have been numerous cases reported about people who build first and then try and get the plans approved once the work has been completed. Beware -municipalities have, via the latest judgement, been given the green light to remove any illegal dwelling, even those that cost millions to build.
Homeowners often make the mistake of incorporating additions or converting an existing structure into a granny flat without finding out whether plans need to be submitted and approved before work can commence. Most additions require planning permission and those intent on improving their homes should contact their local authority to determine what, if any, permissions their intended improvements require.