Fono and Another v Port St Johns Municipality

Mr Luxolo Fono commenced the construction of a турист accommodation facility on Erf 767, Port St Johns, land belonging to the Caguba Community Property Association, without approved building plans or municipal authorisation. He relied on permission obtained from the Caguba Tribal Authority under customary law. The Port St Johns Municipality discovered the construction in August 2018 and issued a compliance notice alleging contraventions of the National Building Regulations and Building Standards Act 103 of 1977, SPLUMA, and municipal by-laws. When construction continued, the municipality brought an urgent application seeking an interdict and demolition. The High Court dismissed the application, holding that the Building Standards Act did not apply in the former Transkei and that contraventions of SPLUMA and by-laws were not proved. On appeal, the Full Court overturned that decision, declared the conduct unlawful, and ordered demolition. Mr Fono and the Tribal Authority appealed to the Supreme Court of Appeal.

The appeal was upheld in part. The Full Court’s order was set aside and replaced with an order declaring the construction unlawful, interdicting further construction pending compliance with s 33(1) of SPLUMA, directing the municipality to provide written requirements for submission of building plans within 30 days, and ordering Mr Fono to comply within three months thereafter. No demolition order was granted. Each party was ordered to pay its own costs.

The judgment clarifies that courts have a wide and flexible remedial discretion under SPLUMA, including the power to prefer compliance-directed remedies over demolition. It underscores the need for proportionality in land-use enforcement, particularly in rural and traditionally governed areas, and confirms that courts may not decide constitutional issues affecting legislation without citing the responsible Minister. The case highlights the incremental introduction of land use regulation envisaged by SPLUMA in former homeland areas.