landmark ruling on student digs
13 April 2007

A HIGH Court ruling ordering the demolition of an illegal guest house that accommodates students has been hailed by legal experts as a precedent-setting move against Nelson Mandela Bay Municipality‘s inability to act on unlawful buildings in the city.

The Port Elizabeth High Court instructed the owners of an illegal guest house in 7th Avenue, Summerstrand, to demolish within two months one entire building, as well as the top storey of a second building.

The judgment in favour of Wilma van Rensburg, of 6th Avenue, against the Nelson Mandela Bay Municipality, her neighbours and the Eastern Cape MEC for Local Government, could mark the end of illegal buildings, oversized guest houses and uncontrolled provision of student accommodation in Humewood and Summerstrand.

An advocate said Judge Johan Froneman‘s judgment “can only be interpreted as a message to property owners to stick to title deed conditions and building regulations or be forced to demolish property at their own cost”.  In his ruling, Froneman described the conduct of the Nelson Mandela Bay Municipality over a period of five years as “a failure to act in accordance with the provisions of the restrictive title conditions relating to property”.

He also said the municipality had allowed building to be done on the property before building plans were submitted or approved.  The plans were only approved years later.

Municipal spokesman Kupido Baron said the ruling was “encouraging in our fight against illegal building. It will discourage others from building illegally”.

Van Rensburg first raised her objections through her lawyers, De Villiers and Partners, in 2001 with the municipality and members of the Shan Trust.  This followed the municipality‘s decision to allow the trust to develop the property behind her house into five dwellings on one plot of 10 041m².  In her affidavit before court, Van Rensburg said the Shan Trust had gone about developing the property without any thought or concern for the neighbours‘ use or enjoyment of their property.

Trust members had been instrumental in destroying their neighbours‘ privacy and devaluing their properties, she said.

The trust members are Perapanjakam Naidoo and Pursotham Naidoo of 3 7th Avenue, Summerstrand, Shashi Naidoo of Sidwell, Seshamma Moodley of Chatsworth and Anthosh Naidoo of Cape Town.

Van Rensburg told the court she repeatedly telephoned and wrote to the municipality without success. The council apparently wrote a letter of warning, but took no further action.

She said tenants had shouted abuse at her family, thrown objects at her dogs and prevented her son from playing in his own backyard.

Froneman said in his judgment that the dispute between Van Rensburg, the municipality and the members of the Shan Trust had a “public character” because of the local authority‘s failure to act in accordance with the provisions of the restrictive title conditions to the disputed property.

Last night, a legal expert said the ruling also had implications for other “unlawful” student cottages in Summerstrand and Humewood.

He specifically referred to the municipality being ordered by the Port Elizabeth High Court to act against Lawrence Juta ,of 53 Glengary Crescent, Humewood.

Juta was instructed on January 26 last year to demolish a second student dwelling on his property, but nothing had been done.

Article from The Herald, Jonnic Communications, pvniekerk@johnnicec.co.za