When the court can't condone regulatory non-compliance
It's easier to ask forgiveness than it is to get permission is the often quoted adage coined by Grace Hopper. But, it is also important to keep another adage in mind – there is often
an exception that proves a rule.
The dangers of not getting necessary permissions before starting construction activities in a buffer zone of an environmentally protected area was illustrated in a recent court case where two homeowners were ordered to demolish all buildings and rehabilitate the land to its pristine state. This judgement was handed down on 19 August 2016 in the case of iSimangaliso Wetland Park Authority v Feasey Property Group Holdings (Pty) Ltd.
The homeowners' defence was twofold. First they argued that their activities were not in fact harming the environment, meaning that no action could be taken against them. Second, they asked the court to grant them an indulgence and give them time to get the necessary permissions. These defences were rejected outright by the court.
The homeowners' activities were taking place in a so-called
buffer zone bordering the iSimangaliso Wetland Park. This park is a world heritage site protected by the South Africa's World Heritage Convention Act and international conventions.
An environmental buffer zone is an area that is outside of the boundaries of a park that is protected to ensure that activities outside of the park can't have a negative impact, and so that the park can integrate into its surrounding areas. Buffer zones are created by the National Environmental Management Protected Areas Act No 57 of 2003 (Protected Areas Act).
The sites where the homeowners' activities were taking place are owned by the Government of KwaZulu Natal and the Republic of South Africa. The land hasn't been transferred to the Ingonyama Trust, but it is still to be administered by the Ingonyama Trust in terms of the KwaZulu-Natal Ingonyama Trust. In addition, being inside the iSimangaliso Wetland Park's buffer zone, the land falls under the jurisdiction of the iSimangaliso Wetland Park Authority.
It appears that the homeowners did attempt to get permission to occupy the sites and construct houses – they had entered into a lease agreement, albeit not with the registered owners of the land, and there was consent from the Mbila Traditional Counsel. Even so, they had not applied for any of the required environmental authorisations that were required because the sites were in a buffer zone.
The outright failure to apply for, or obtain, the required environmental authorisations was not, however, even considered by the court. The decision of the court focused exclusively on the fact that there was no valid lease agreement for the site and that the homeowners had no other right to occupy the land.
The homeowners conceded that they didn't have a valid lease agreement or any other right to occupy or build on the sites. Their defense was whittled down to a request to the court to be granted an indulgence so that they could enter into the required agreements and apply for any environmental authorisations that were needed.
The court took a dim view of the request for an indulgence, equating it to a request for it to condone illegal actions.
The court applied an earlier decision of the Supreme Court of Appeal (Lester v Ndlambe Municipality) where it was said that a court does not have the discretion to give a person an indulgence to enable them to legalise an illegal use of land – the court must uphold the rule of law and prevent any on-going contravention of the law.
The court doesn't have the power to forgive, even if forgiveness is only sought temporarily.
The result – the homeowners were ordered to vacate the sites and rehabilitate the land restoring it to a pristine state, requiring that they demolish all buildings.
The take away from this judgement is that it is important to obtain all necessary approvals before undertaking any project or development. In this case the failure to acquire a valid consent to occupy the land was the decisive factor applied by the court, but one must also be careful not to overlook any environmental authorisations that might be required taking into account the nature and location of the development.
- iSimangaliso Wetland Park Authority and Another v Feasey Property Group Holdings (Pty) Ltd and others  JOL 36485 (KZP)
- KwaZulu-Natal Ingonyama Trust Act 3KZ of 1994
- Lester v Ndlambe Municipality and Another 2015 (6) SA 283 SCA
- World Heritage Convention Act, No. 49 of 1999