Rhodes professor Matthew Lester lost his appeal against an order to demolish his R8 million property in Kenton–on-Sea in the Supreme Court of Appeal on Thursday 22 August.
Rhodes professor Matthew Lester lost his appeal against an order to demolish his R8 million property in Kenton–on-Sea in the Supreme Court of Appeal on Thursday 22 August.
Judge S A Majiedt dismissed with costs Lester's appeal of a May 2012 judgment deeming his house to be in contravention of Section 21 of the National Building Regulations and Building Standards Act.
The case that began 10 years ago and included seven high court applications, entailed aspects of neighbour-, public- and administrative law.
Ndlambe Municipality and High Dune House (Pty) Ltd, the owners of a neighbouring property, applied for a demolishing order on Lester’s property on the grounds that it contravened building regulations, obstructed the view and affected privacy. Lester, a professor of tax law, countered the claim, proposing the house instead be altered in accordance with submitted plans.
The case ended in the high court's ordering Lester to demolish his R8m property at his own expense within 180 days. Lester appealed the ruling. In his ruling he upholds the original demolition order by Judge Alkema in the Eastern Cape High Court, Grahamstown.
He questions whether the Constitution, specifically Section 26 declaring "Everyone has the right to adequate housing" and "No one may… have their home demolished without an order of court made after considering all the relevant circumstances" allowed the court discretion in demolition cases.
This argument had formed part of Lester's original defence.
Judge Majiedt argues that Section 26 has to be read in its historical context against apartheid forced removals and evictions. He said Lester had not proved that he would not be able to afford alternative housing were his luxury home demolished.
"He does not state anywhere in his papers that he would be rendered homeless and destitute by the demolition," the ruling states.
"One is acutely aware of the financial calamity, inconvenience and disruption which the demolition of what is plainly [an]expansive luxurious dwelling, and a primary residence to boot, would cause Lester. But the upholding of the doctrine of legality, a fundamental component of the rule of law, must inevitably trump such personal considerations," Judge Majiedt concludes.
Google Street View of the property:
