Stopforths

Heritage properties: How does it influence me?

We celebrated Heritage Day last month and enjoyed a day of embracing our heritage. But, we as citizens of South Africa, also have the responsibility to protect our heritage and that is also applicable on property.
There is no doubt that properties like the Castle and St Georges Cathedral must be protected, but what about normal residential homes? The National Heritage Resources Act of 1999 prescribes that all properties older than 60 years are protected in terms of the Act and any changes or demolishing of the properties may not take place unless a permit was issued by the relevant provincial heritage resources authority.
The Act also prescribes the different grades of property types and the authorisation needed for the various types if demolition or changes are to be made. Depending on the age or historical significance of the building, you might be entitled to apply for a grant for the upkeep of the property.
The relevant heritage resource authorities were more information can be found are:
National: http://www.sahra.org.za/
Western Cape: http://www.hwc.org.za/

Joe van Rooyen
0832657200
[email protected]

What effect do the water restrictions have on my lease agreement?
The current strict water restrictions imposed by the City of Cape Town might be in contravention to terms of a lease agreement. It might also place certain obligations on the tenant and landlord, which was not contemplated when the lease agreement was signed.
A standard term in most lease agreements determines that there is a duty on tenants to look after the garden, which could include watering the plants and lawn and ensuring that the pool is filled up and looked after. The water restrictions prohibit such actions. Is the tenant in breach of the agreement if they don’t adhere to the lease terms? Any contractual agreement is subject to the laws of the country where the agreement takes place, which includes municipal laws and regulations. Such terms in a lease agreement is therefore null and void and the tenant is not in breach, if they don’t adhere to it.
The municipality could also reduce the water supply to a property during water restrictions. A tenant can not cancel a lease agreement because of it, as the municipal laws take preference.
If a municipality charges a minimum availability water charge, the lease agreement will determine whether the landlord or the tenant is liable for it. If the lease determines that all consumables are payable by the tenant, then the tenant will be liable for it.
Joe van Rooyen
0832657200
[email protected]

Is the road in our estate a public road or a private road?
It is important to distinguish between a public and a private road. Public roads are governed by the National Road Traffic Act 93 of 1996 as well as various provincial and municipal legislation. These laws determine that there is a duty on the State to look after the roads as well as to ensure the safety of the users on the roads. Accidents happening on public roads are furthermore covered by the Road Accident Fund. That is not the case on private roads and these obligations rests on the private owner.

Our courts have over the years struggled with this question. In S v Christodoulou 1967 the court laid down a test to determine whether a road is a public road or a private road. This was contradicted in S v Rabe 1973 as the judge determined that the meaning of “use by the public” was not considered properly in the previous case. This was confirmed in S v Dillion 1983.

In Gregory and Midstream Estate Home Owners Association, the Community Schemes Ombud Service Adjudicator made a finding that the roads in the estate were public roads. The reason for his findings is not that clear and it seems that he was influenced by the Administrative Adjudication of Road Traffic Offences Act 46 of 1998.

An opportunity arose to get clarity in this matter in the KZN High Court in the matter of Singh and Another v Mount Edgecombe Country Club Estate Management Association Two. In this case the Association argued that owners in the estate contracted with each other to manage the roads according to their own rules and therefore operate as a parallel system on the statutory laws provided by the Act. The court rejected the argument and said that such a parallel system does not exist. Unfortunately, the court but did not make a finding whether the roads are public or private as the Association, in their rules, determines the roads to be public roads.

It seems that certainty about public and private roads will have to wait for the future to be determined.

Joe van Rooyen
0832657200
[email protected]