“A bad neighbour is as great a calamity as a good one is a great advantage” (Hesiod, 700 BC)
Bad neighbours have it seems been troubling us since at least the days of ancient Greece. If two and a half thousand years later you are unlucky enough to have one, and if the particular calamity visited upon you by said neighbour (loss of a sea view perhaps) results from his/her unlawful building operations, take heart.
Our law has a strong and effective remedy for you – a demolition order.
In an important new decision, the Supreme Court of Appeal has held that, where the structure in question is an illegal one for want of approved building plans, the court – once satisfied that the relevant statutory prohibitions have indeed been breached – has no discretion and must order demolition. To do otherwise, held the Court, “would amount to the sanctioning of an on-going illegality and criminal offence”, regardless of the financial and other distress a demolition order may cause the owner (the house to be demolished in this case being worth some R8m). The only escape route for an owner seems to be to show that demolition would infringe on his or her constitutional right of access to “adequate housing” – a factor not applicable, held the Court, to the “luxury home” in this case.
Moreover the local authority in this case was, held the Court, “statutorily and morally duty bound to approach the court for a demolition order in order to uphold the law” – insist that your local council assists you by doing just that.
Note that a court will still have a discretion between ordering either demolition or some other remedy – for example an award of damages for an encroachment on your property – where “private” or “neighbour” law applies, as opposed to the “public law” illegality applicable to this case. The distinction can be a fine one, so take advice on the particular facts of your matter.
If you want to get in touch with us to act in respect of any matter stated herein, please send an email to info@chrisfick.co.za
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