SCA Ruling Confirms Broad Powers of Western Cape Heritage Authorities

13 January 2017

In a precedent-setting ruling from the Supreme Court of Appeal in September last year, the protection of the cultural heritage of South Africa’s built environment was reaffirmed in a case that may have significant consequences for property owners seeking to develop buildings over 60 years old. The demolition of such properties, even when they aren’t the subject of formal heritage status or protection, may be subject to conditions imposed by regional and national heritage authorities.

In Gees v The Provincial Minister of Cultural Affairs and Sport, a Cape Town property owner and developer had his appeal dismissed when he sought to review a demolition permit that was issued for a Vredehoek property on Davenport Road. Such permits are required for the demolition of any property that is older than 60 years. The developer had taken issue with conditions that were attached to the permit by issued by the Provincial MEC’s Heritage Tribunal  requiring that heritage approval be granted for plans on the redevelopment of the site before construction, and also imposing conditions on the size and materials that may be used.

Significantly, the property in question had no formal heritage status or protection and, at the time, did not lie within a Heritage Protection Overlay Zone.

The court found that the area in question (Davenport Road) formed part of the national estate in its context of a well-preserved, coherent art deco street-scape and was “worthy of protection as a heritage resource."

While the developer argued that such conditions could only be applied to formally protected buildings under the Heritage Act under the direct protection of heritage laws, the SCA found that the Heritage Act gives wide discretion to heritage authorities to impose lawful conditions in permits-  even in unprotected heritage areas.

Furthermore, the court found that the imposition of conditions did not amount to arbitrary deprivation of property, given the cultural significance of the area and its value to the national estate, with the Judge concluding that “the imposition of the conditions, in my view, was reasonable and equitable, having regard to the inherent responsibility of the appellant towards the community in the exercise of his entitlements as the owner of Erf 1444.”

The Supreme Court of Appeal’s ruling confirms that heritage authorities (in the Western Cape) have the power to impose far reaching conditions on the re-development of any site over 60 years old as long as the conditions further the Heritage Act’s purpose of promoting the conservation of the country’s cultural heritage.

This outcome means that anyone seeking to develop property that is older than 60 years old must beware of the possibility of future development being circumscribed by heritage authorities– even when the property has no formal heritage protection. 

You can view the full text of the ruling here.

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A Zimbabwean, born and bred, Tendai has been admitted to the High Courts of both South Africa and Zimbabwe, and has experience practicing law in both countries.

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