13 Sep 2013
The Supreme Court of Appeal recently ruled that courts do not have a discretion to grant a demolition order unless an individual can prove that they cannot afford or access any other form of housing in terms of section 26 (3) of the Constitution.
In an August 2013 court case, Professor Mathew Lester, a tax professor at the University of Rhodes in Grahamstown, was instructed to demolish his home to the amount of about R8 million due to his neighbour’s objections to his building plans.
The new building project interfered with his neighbour’s panoramic view of the ocean and objections were lodged at the local municipality on the basis that the title deed restrictions did not allow for two separate dwellings on one property. Pending the local municipality’s final decision on this objection, Lester continued to build.
After six applications to Court and three sets of revised architectural plans, the local municipality still did not approve Lester’s plans to extend his home and consequently, the municipality had to apply to Court for the demolition of the dwelling.
Lester then instituted a counter-application, asking the court to allow the dwelling to be altered, so as to avoid the demolition order. However the High Court in Grahamstown ruled that since the building plans did not comply with statutory and zoning requirements and Lester did not allege that he could not afford alternative housing in terms of the Constitution, the demolition order had to be granted.
The Supreme Court of Appeal stated that it was acutely aware of the financial misfortune which the demolition would cause, however the National Building Regulations and Building Standards Act inevitably outweighed such personal considerations and therefore the dwelling had to be demolished.
Let this be a warning to all. - Sika Ackotia
Sika AckotiaSika Ackotia is a candidate attorney in the Property Department at Schindlers Attorneys. She pays daily attention to Court Procedure, Property Law and resolving disputes against City of Johannesburg Municipality. Her interests also lie in Corporate and Labour Law.
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