Mr Roux purchases a property near the centre of Stellenbosch in January 2014. A house erected about 75 years earlier stands on the property. The house has recently been renovated and meets all municipal building requirements. However, Mr Roux intends to demolish the house to erect a modern, carbon-neutral home. On 1 April 2014, Mr Roux submits an application to the municipality for permission to demolish the house. He hands his application to Ms Mcako, an employee of the municipality, who is also an old university classmate, and she assures him that his application will be speedily approved. Ms Mcako presents Mr Roux’s application at the Municipal Council meeting on 10 April. She claims that Mr Roux’s application meets all the criteria for a demolition permit in terms of the National Heritage Resources Act 25 of 1999. She mentions that she has already informed Mr Roux that he can appoint a contractor to demolish the building and that h e only has to wait for the approval of his application to commence the work. Therefore, she proposes that the Council take formal notice thereof. The Council duly minutes its notice.
In the meantime, Mr Botha, Mr Roux’s neighbour, learns of the potential demolition. Mr Botha is a renowned historian of South African architecture who has actively campaigned for the preservation of heritage buildings. He argues that the demolition of the house derogates from the historic character of the street and that national heritage sites may only be demolished under strict conditions, which he alleges have not been complied with. He contacts the Stellenbosch municipality about the matter, but the municipality simply informs him that the permit has been granted in terms of the relevant legislation.
The following provisions are relevant (you may assume that there are no other relevant provisions):
National Heritage Resources Act 25 of 1999
2. Definitions
“heritage site” includes any structure or part of a structure which is older than 60 years.
5. Demolition of national heritage sites
(1) No person shall proceed with the demolition of a national heritage site without possessing a demolition permit granted by the municipal council in question.
(2) Any person who proceeds with the demolition of a national heritage site is guilty of an offence and, upon conviction, liable to a fine.
11. Functions, powers and duties of national heritage resources authorities
(1) a national heritage resources authority shall -
(a) provide the municipal council in question with written recommendations regarding an application in terms of section 5;
(b) inspect the national heritage site and the proposed demolition of the site, in respect of which approval is sought in section 5(1);
(c) include in the written recommendations a report on the inspection referred to in paragraph (b).
13. Public notice of applications under consideration of municipal councils –
(1) The municipal council in question must declare through public notice in a newspaper with local distribution, on the website of the municipality or by any other appropriate manner that an application for the demolition of a national heritage site has been lodged.
(2) The notice must indicate- (a) the date upon which the application was received;
(b) where the application documents can be examined by interested parties or the general public;
(c) when the closing date for submission of comments is, which date may not be less than 60 days from the date of publication of the notice.
15. Approval by municipal councils of demolition permits –
(1) If a municipal council, having considered the written recommendations referred to in section 11(1)(a),
(a) is satisfied that the application in question meets all the requirements imposed by this Act, the council shall grant a demolition permit;
(b) is not satisfied that the demolition of the national heritage site is of such a nature that –
(i) it will be necessary for the protection of health and public safety;
(ii) the conservation, protection, and maintenance of the site is objectively impossible;
(iii) will not unreasonably harm the historical character of the neighbourhood or townscape;
such municipal council shall refuse to grant its approval in respect thereof.
58. Consideration of applications for demolition of national heritage sites.
(1) All applications for a demolition permit must be assessed by the municipal council.
(2) A municipal council assessing an application in section 58(1) must consist of at least four senior managers of the municipality and must consult, for the purposes of any application for a demolition permit, a representative of the national heritage resources authority in question at the council meeting.
60. Delegations.
(1) A municipal council may delegate a power conferred upon it by this Act to an employee of the municipality.
Was Mr Roux’s application approved by the appropriate decision-maker?