Luxolo Fono and Another v Port St Johns Municipality

Mr Luxolo Fono, acting with permission from the Caguba Tribal Authority, commenced construction of a tourist facility on Erf 767 in Port St Johns (land within the former Transkei territory) without approved building plans. The land belonged to the Caguba Community Property Association pursuant to a land restitution claim. A municipal official, Ms Zide, discovered the unauthorized construction in August 2018 and issued a cease work notice alleging breach of municipal by-laws, the National Building Regulations and Building Standards Act 103 of 1977, and the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). Mr Fono initially continued construction but later stopped after receiving legal advice. He had obtained a 75-year lease from the tribal authority at R500 per annum and believed he had complied with all applicable requirements under the traditional legal system. He asserted he was unaware of the need to comply with municipal planning requirements and offered to engage professionals to draw building plans for submission. The municipality applied urgently for declarations of unlawfulness, an interdict, and a demolition order.

• Whether the National Building Regulations and Building Standards Act 103 of 1977 applies to property situated in the territory of the former Transkei homeland
• Whether the court can declare provisions of the Justice Laws Rationalisation Act 18 of 1996 unconstitutional without citing the responsible Minister
• Whether Mr Fono contravened the provisions of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA)
• Whether a court has discretion to order remedies other than demolition for non-compliance with SPLUMA, specifically under section 32(2)(c)
• Whether demolition is an appropriate remedy in circumstances where the builder acted under a bona fide but mistaken belief about compliance with traditional authority requirements

The appeal was upheld in part. The full court's order was set aside and replaced with an order: (1) declaring Mr Fono's construction without approval unlawful; (2) interdicting him from continuing construction without complying with section 33(1) of SPLUMA; (3) ordering the municipality to provide requirements for building plan submission within 30 days; (4) ordering Mr Fono to comply with such requirements within three months of their provision. Each party was ordered to pay their own costs at all levels of the litigation.

The binding principles established are: (1) Courts have discretion under section 32(2)(c) of SPLUMA to order preventative or remedial measures other than demolition when land use schemes are contravened, distinguishing it from the peremptory demolition provisions in section 21 of the Building Standards Act. This discretion must be exercised judiciously based on the facts of each case. (2) A court may not pronounce on the constitutionality of legislation without affording the Minister responsible for administering that legislation notice and an opportunity to be heard, particularly when the effect would be to declare provisions unconstitutional. (3) When considering remedies for planning law violations, courts should consider factors including: the bona fides of the violator's belief about compliance; structural soundness of the construction; the municipality's conduct in enforcement (including vagueness about applicable provisions and failure to promulgate proper by-laws); offers to remedy the breach; and the proportionality of the remedy to the violation. (4) Non-compliance with section 33(1) of SPLUMA (requiring land development applications) constitutes unlawful conduct justifying declaratory and injunctive relief, but does not automatically warrant demolition.

The Court made several non-binding observations. First, it noted the general presumption that legislative omission of a statute from a schedule is deliberate rather than an oversight, though it did not definitively determine whether the Building Standards Act applies in the former Transkei territory. Second, the Court observed that the legal position regarding applicable town planning and land use legislation in former homeland areas "was by no means clear," acknowledging the complexity of the intersection between traditional authority systems and municipal planning regulations. Third, the Court commented that section 24(2)(c) of SPLUMA recognizes the need for incremental introduction of land use management in areas under traditional leadership and areas not previously subject to land use schemes, implicitly supporting a more graduated approach to enforcement in such contexts. Fourth, the Court noted that the municipality "did not exactly cover itself in glory" in how it handled the matter, including purporting to enforce non-existent by-laws, being vague about applicable SPLUMA provisions, and incorrectly citing the Building Standards Act. Fifth, the Court observed that Mr Fono's assertion about structural soundness could be verified by municipal inspection under section 32 of SPLUMA, which empowers municipalities to appoint inspectors with extensive investigative powers.

This judgment is significant for several reasons. First, it clarifies that courts have broader discretionary powers under section 32(2)(c) of SPLUMA compared to the peremptory demolition provisions of section 21 of the Building Standards Act. Courts may order preventative or remedial measures as alternatives to demolition. Second, it establishes that proportionality and fairness considerations are relevant when determining appropriate remedies for planning law violations, particularly in contexts involving traditional land systems and areas formerly under homeland governance. Third, it emphasizes the procedural requirement that the Minister responsible for administering legislation must be cited when constitutional invalidity of that legislation is being considered. Fourth, it recognizes the practical reality of the intersection between traditional authority systems and municipal planning regulations in former homeland areas, acknowledging that persons may act in good faith based on traditional authority approval while inadvertently violating municipal planning laws. Fifth, the judgment reinforces that municipalities must properly promulgate by-laws and clearly identify which legislative provisions they rely upon when seeking enforcement orders. The case contributes to the development of a more nuanced and flexible approach to planning law enforcement in South Africa's diverse land governance contexts.