The risks involved in building on the property without approved building plans for the structures came to the forefront again in the Pietermaritzburg, Kwazulu-Natal Division High Court case of Hibiscus Coast Municipality and another v Dreamcast Investments 24 CC  JOL 40449 (KZP).
The respondent owned a property in a residential estate of which one of the applicants was the homeowner’s association. It came to the attention of the homeowner’s association that the building on the property exceeds the maximum floor area ratio permitted for the property in terms of the relevant Town Planning Scheme of the Hibiscus Coast Municipality. The home owner’s association requested the approved building plans from the respondent for the buildings. The respondent could not provide same and was therefore also in contravention of the Memorandum of Incorporation of the homeowner’s association. Subsequently the homeowner’s association brought the unlawful construction to the attention of the municipality, and an application was brought by the municipality for an order to bring the building to a state that would be consistent with building plans that comply with the Town Planning Scheme.
The court confirmed that once it was established that the building of the respondent was illegal the municipality is statutorily and morally duty-bound to approach the court for a demolition order. This was also the view held in the Supreme Court of Appeal case of Lester v Ndlambe Municipality & another 2015 (6) SA 283 (SCA) the court had the following approach: Section 4(1) of the National Building Regulations and Building Standards Act 103 of 1977 (the Act) provides that ‘(n)o person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act’. Section 4(4) renders the contravention of s 4(1) a criminal offence, and s 21 provides that – ‘a magistrate shall have jurisdiction, on the application of any local authority or the Minister, to make an order . . . authorising such local authority to demolish such building if such magistrate is satisfied that such erection is contrary to or does not comply with the provisions of this Act or any approval or authorisation granted thereunder’. The language of s 21 gave a magistrate no latitude not to order the demolition once the jurisdictional fact, namely that the building was erected contrary to the Act, was established. The law could not and did not countenance an ongoing illegality which was also a criminal offence; to do so would be to subvert the doctrine of legality and to undermine the rule of law.
In Hibiscus Coast Municipality and another v Dreamcast Investments the court further reiterated that the owner bears the responsibility to ensure that its property complies with the relevant Town Planning Scheme of the local authority.
Purchasers should take heed of the potential disastrous consequences of purchasing a property containing illegal building structures. Where illegal structures exist, the municipality could apply for a demolition order.
A prospective purchaser should:
Where time does not permit a proper investigation before signing the agreement, a suitably worded suspensive condition providing the purchaser with a period of time within which to satisfy himself as to the legality of the improvements and to notify the seller in writing of his approval, could be inserted into the agreement.
Purchasers should take note of the finding in Haviside v Heydricks and Another 2014 (1) SA 235 (KZP) were it was held that the ‘’voetstoots’’ clause covers defects, like unapproved building plans if the seller was not aware that the structures are illegal. This case is not a carte blanche to deliberately conceal latent defects, as the deliberate concealing of defects will indicate the intention to defraud the purchaser. If the seller had prior knowledge of the defective building plans the ‘’voetstoots’’ clause will not protect him. See also Ellis and Another v Cilliers N.O and Others (16936/11)  ZAWCHC 145 (9 October 2015).
If the purchaser neglects to ascertain the status of the improvements prior to transfer, he will either have to accept the property with the prevailing defect and risk or enter into costly (and often uncertain and protracted) litigation in an attempt to enforce his rights.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)