The court dismissed the application and found that the Building Standards Act was not applicable in the former Transkei territory.
A contractor has been given an opportunity to remedy a breach concerning building permits, before the Port St John’s municipality can consider demolition of a tourist facility on land belonging to the Caguba Community.
According to court papers, the construction had been carried out without submitting building plans for municipal approval. The contractor argued that the property fell under traditional jurisdiction, exempting it from municipal oversight.
Port St Johns is a small rural village in the Wild Coast, Eastern Cape. The Caguba Community Property Association acquired land, pursuant to a land claim.
In February 2008, the Regional Land Claims Commission, the Port St Johns Municipality and the Caguba Community entered into a written settlement agreement which transferred a portion of land to various stakeholders.
According to court documents, the contractor subsequently began construction without obtaining approved building plans from the municipality.
He contended that he was unaware that he had to comply with municipal town planning requirements, on the assumption that he complied with the requirements of the traditional authority, which did not ask for building plans.
In August, 2018, a municipal official and her team visited the site. She issued a formal notice to the contractor citing violations of municipal town planning and building bylaws, the Building Standards Act, and the Spatial Planning and Land Use Management Act (Splumla), and instructed him to cease construction immediately.
Despite his initial agreement to comply, she said construction continued.
Consequently, the municipality filed an urgent application with the high court.
The court dismissed the application and found that the Building Standards Act was not applicable in the former Transkei territory.
It further found that the municipality could not prove that the contractor violated any of its by-laws or the Splumla.
On appeal, the full court upheld the municipality’s appeal, finding that the high court had made errors including that the Building Standards Act did not apply in the former Transkei.
The full court found that excluding the former Transkei from the application of the Building Standards Act would perpetuate unconstitutional discrimination, as seen in past cases addressing inequalities faced by those in the former homelands.
It concluded that the contractor had violated the Spumla by failing to apply for the necessary building permissions and upheld the municipality’s appeal.
The contractor then approached the Supreme Court of Appeal (SCA), where Judge Babalwa Mantame ruled: “In terms of s 32 of the Splumla, a municipality is empowered to appoint a municipal official or any other person as an inspector to investigate any noncompliance with its land use scheme. And in terms of s 32(11), such functionary may issue a compliance notice, to the person in charge of the property. In my view, an order in these terms must be preferable to a demolition order.”
“The applicant (municipality) is ordered to provide the first respondent (contractor) with the requirements for the submission of building plans (and subsequent approval thereof), in writing, within 30 (thirty) days of this order. (iv) The first respondent is ordered to comply with such requirements within three (3) months of the provision thereof.”
The municipality did not respond to requests for comment by deadline on Sunday.
Cape Times
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