Municipalities have a duty to uphold the law by making errant homeowners comply with town planning rules – even if it means ordering the demolition of an R8-million house built without approved plans, said Kara van de Pol, a senior associate at pan-African corporate law firm Bowman Gilfillan.

“Last week the Supreme Court of Appeal (SCA) held that the doctrine of legality places a duty on local authorities to apply for a demolition order in the face of the persistent criminal conduct of a homeowner who has erected an illegal building,” she said. This is because the principle of legality – the doctrine that the legislature and executive may only exercise powers and functions conferred upon them by law – is a fundamental principle of our law.

Judgment in Lester v Ndlambe Municipality (514/12) [2013] ZASCA 95 was handed down on 22 August 2013.

In its judgment the SCA said that this doctrine required the demolition of the luxury Kenton-on-Sea home of Prof Matthew Lester, a well-known legal academic, despite recognising the “financial calamity, inconvenience and disruption” that this would cause.

The dispute between Lester, his neighbours and the Ndlambe Municipality – under whose jurisdiction Kenton falls – has a “long, sorry history” extending over more than a decade.

Lester argued that a court, when faced with the municipality’s application for a demolition order under section 21 of the National Building Regulations and Building Standards Act 103 of 1977 (the Act), had a “wide discretion”. This was because the right to housing in section 26(3) of the Constitution requires a court to consider “all the relevant circumstances” before it could order a person’s home to be demolished.

But the SCA said that this protection had to be read against the backdrop of the right which was to adequate, not luxurious, housing. The position is different where a person facing a demolition order would be able to afford alternative accommodation. Despite the “calamitous financial implications” of a demolition, Lester did not allege that he would be rendered homeless and destitute.

In any event, the principle of legality allowed no room for discretion to be imported into the Act. Because the Act made it an offence to erect a building without approved plans, the law could not condone an “ongoing illegality”.

What’s more, a local authority’s failure to exercise a public power “where the exigencies of a particular case require it” would amount to undermining the legality principle. Because courts are similarly constrained by the doctrine, and must exercise only those powers bestowed upon them, a judge must enforce the law by issuing a demolition order once the jurisdictional basis is found to exist.

“It’s a strong statement from the SCA that the doctrine of legality is too fundamental to give way to the misery of one landowner,” said Van de Pol.