THE RIGHT TO NEGLECT PROPERTY
An Analysis of the Weaknesses of the National Heritage Resources Act 25 of 1999
by
Philippa Marques (MRQPHI001)
Submitted to The University Of Cape Town
in fulfilment of the requirements for the degree LLB
Faculty of Law, University of Cape Town
Date of submission: 17 September 2010
Supervisor: Professor Hanri Mostert
Mentor: Nkanyiso Sibanda
Department of Private Law, University of Cape Town
Declaration
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2. I have used the footnoting convention for citation and referencing. Each contribution to, and quotation in, this opinion from the work(s) of other people has been attributed, and has been cited and referenced.
3. This opinion is my own work.
4. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his or her own work.
Signature ______
The right to neglect property
An Analysis of the Weakness of the National Heritage Resources Act 25 of 1999
by
Philippa Marques (MRQPHI001)
Word Count: 9458 [NINE THOUSAND FOUR HUNDRED AND FIFTY EIGHT]
This paper was written under the auspices of the LandLawWatch project. The views and opinions expressed here are the author's own and should not be attributed to the LandLawWatch project or the University of Cape Town.
Abstract
When it comes to the preservation of buildings, the law is clear that we should strive to preserve and protect the cultural and heritage value of resources in South Africa. However there are weaknesses in the National Heritage Resources Act. A growing number of cases show owners choosing to neglect their heritage buildings. But property owners no longer have the right to neglect property. This is because ownership entails more than just rights, but also responsibilities to the community. The traditional absoluteness theory of ownership is no longer an adequate framework for property rights in South Africa. As it stands, the law is failing some of South Africa’s built heritage. Neglect has the potential to result in negative consequences for communities as a result of health, safety and urban decay. But more significantly, the neglect of historic properties has the potential to result in a loss of cultural identity. There are possible solutions to the problem of neglect of heritage buildings. The law needs to strive towards a more appropriate balance between the right of a property owner and the right of a community to protect its cultural heritage.
Table of Contents
Abstract iii
Table of Contents iv
1. Introduction 1
2. The preservation of heritage property 3
2.1 The National Heritage Resources Act 4
2.2 Determination of heritage significance 4
2.4 Section 34: The catchall provision 5
2.5 The power to issue a repair order 6
3. Case examples 9
3.1 Highclere: the heritage value of maintenance 9
3.2 Denton Properties: the risks of neglect 11
3.3 Cock’s Castle: resource implications of heritage protection 13
4. Balancing individual and community interests 14
4.1 “Absoluteness” and the interests of individual owners 15
4.2 The importance of the community’s interest 17
4.3 Balancing interests: The Denkmalschutz Case 20
5. Evaluation 22
5.1 Weakness of the National Heritage Resources Act 22
5.2 Possible Solutions 24
6. Conclusion 28
Bibliography 32
Literature 32
Primary sources 34
Cases 34
Legislation 34
iv
1. Introduction
In the late 19th century, Sir Langam Dale built a cottage from crushed seashells on the shores of Bloubergstrand. Little could this prominent official of the Cape Colony know that his abode, peacefully nestled amongst the dunes, 130 years later would become the battleground for a dispute between its current owners, conservationists, architects and the Blouberg community. Now in a state of ruin, its owners, Bhp Properties (Pty) Ltd, wish to demolish the cottage in the hope of using the land for more economic means. Permission for demolition was granted; however, upon hearing of the fate of the cottage, the local community and urban conservationists succeeded in an urgent appeal against the demolition permit. While the fate of the cottage remains unknown, its story highlights a sensitive topic in the realm of South Africa’s cultural heritage and the delicate balance our law has to strike between the rights of property owners and the community.[1]
Heritage preservation laws flow from legitimate government policy, the aim of which is to protect a State’s cultural heritage and conserve the legacies of past generations.[2] Heritage preservation legislation tries to do this by restricting the rights of owners of protected properties to alter or demolish their properties.[3] However, heritage preservation laws may be in conflict with the traditional property law conception of ownership.
Traditionally the phrase plena in re potestas describes owners power over their property. It means that owners have the power to do as they please with their property, within the limits of the law.[4] In South Africa, property rights are given strong protection as real rights.[5] However, in both private and public law, the concept of ownership is not absolute.[6] Section 25 of the South African Constitution guarantees the right to property.[7] This guarantee serves however, to establish and maintain a balance between an individual’s existing rights and the public interest, rather than protecting an owner’s existing rights in property.[8]
Cultural heritage protection represents one such limit on an individual’s right of ownership. Cultural heritage defines South Africa’s cultural identity.[9] The goal of legislation passed to promote the management of South Africa’s heritage[10] was to enable and encourage communities to nurture and conserve their legacy for future generations.[11] The National Heritage Resources Act,[12] (hereinafter the “Heritage Act”) foresees that where a building or structure is deemed to be of cultural significance, it will be placed within the sphere of the heritage resources authorities, as part of the National Estate.[13] Individuals who own heritage buildings cannot make any alterations or demolitions without the approval of the Heritage Resources authority.[14] However, there seems to be an increase in instances of protected properties not being maintained appropriately, which renders subsequent obtaining of a demolition permit on the basis that the building is beyond repair easier.[15]
This inherent weakness in the country’s heritage preservation laws is the subject of this paper. In pursuing this issue, the paper focuses specifically on the content of an owner’s entitlement to neglect or destroy property (ius abutendi).[16] The issue of neglect is one that is seldom highlighted. The focus more frequently is on the use and enjoyment of property [17] The question raised delves into the very principles on which the Law of Property in South Africa is standing.[18] Examining the right through the prism of South Africa’s cultural heritage will draw attention to the delicate balancing act that our law requires between an individual’s right of ownership and the rights of the community.
I begin this paper with an overview of the preservation of heritage resources in South Africa. I will give an overview of the Heritage Act and explain how it attempts to protect culturally significant buildings. From there, I will discuss how the law limits owners’ property rights by analysing sections 34 and 45 of the Heritage Act. Having laid this foundation I will then discuss a number of recent case examples highlighting flaws in the Heritage Act.[19] This will be followed by a discussion on how the law requires a balance between an individual’s rights and the community’s rights. To do this I will examine how the traditional absoluteness theory of ownership is no longer an adequate framework for property rights in South Africa’s new social context. I will show through an analysis of theory that an owner of heritage property has a duty to his community. Finally I will evaluate the weaknesses of the Heritage Act. I will suggest a number of solutions which could help strike a more appropriate balance between the right of a property owner and the right of a community to protect its cultural heritage.[20]
2. The preservation of heritage property
The desire to preserve historically significant buildings is a worldwide phenomenon that is usually given force through the enactment of legislation that aims to preserve and protect historically and culturally valuable buildings and structures. In a speech entitled, “Heritage Preservation Vital” Patrick Ho, Secretary for Home Affairs in Hong Kong, speaking on Heritage Preservation, acknowledged that
Architecture has been one of our most monumental achievements and one in which it we invested some of our finest handiwork. It thus stands to reason that the best of our achievements should be preserved and cherished, as a lasting record of who we are and what we have accomplished.[21]
The first attempt in South Africa to protect historic buildings came in the form of the Natural and Historical Monuments, Relics and Antiquities Act,[22] which was later followed by the National Monuments Act[23] and finally the National Heritage Resources Act.[24] The preamble to the Heritage Act states that the Act was enacted with the aim of promoting good management of the national estate and to enable and encourage communities to nurture and conserve their legacy so that it may be bequeathed to future generations. It acknowledges that our heritage is unique and precious and cannot be renewed.[25] It further states that identity and spiritual well-being are defined by our heritage, and thus acknowledges the nation-building potential of cultural heritage.[26] Cultural heritage, the preamble claims, “has the potential to affirm our diverse cultures, and in so doing, shape our national character.”[27] This is recognition of the value of culturally important man-made structures and their place in society.
2.1 The National Heritage Resources Act
The Heritage Act consists of three chapters: Chapter 1 provides for a system for the management of national heritage resources. It establishes the South African Heritage Resources Authority (SAHRA) as the statutory body responsible for identification and management of the national estate.[28] Chapter 2 provides for protection and management of heritage resources. Chapter 3 outlines the general provisions. The crucial provisions are sections 3 and 4. Section 3 defines the “national estate” as comprising of those heritage resources of South Africa which are of cultural significance or other special value for the present community and for future generations.”[29] Section 4 provides for the establishment of provincial heritage resources authorities, which are responsible for management on a provincial and local level.[30] The paragraphs below deal with these sections in more detail.
2.2 Determination of heritage significance
Under section 7, the South African Heritage Resources Authority (SAHRA) must in consultation with the Minister and MEC in every province, develop a system of grading of places and objects, which are to form part of the national estate.[31] The Act further provides that buildings are objects will be deemed worthy of protection if they fall into one of three categories: Grade I are those heritage resources with qualities so exceptional that they are of special national significance; Grade II are those heritage resources which, although forming part of the national estate, can be considered to have special qualities which make them significant within the context of a province or region; and Grade III are deemed as those heritage resources worthy of conservation and which meet the criteria of the Heritage Act under section 3(3).[32]
In determining whether a building has enough heritage value to fall within a specific grading of the Heritage Act, the Act provides criteria for establishing when a building may be considered part of the national estate. Section 3(3) states that a building will have significance if it meets any of the following: it is important to a specific community or culture; it possesses unique aesthetic, architectural, technical or other qualities; it has a strong or special association with a particular community; it has a special association with the life or work of a person, group or organization of importance in the history of South Africa, or is otherwise historically important.[33]
Grading is important and has significant consequences attached to it. One such consequence relates to who is responsible for the management of a specific heritage site. SAHRA is responsible for identification and management of Grade I heritage resources, while the Provincial Heritage Resources Authorities are responsible for Grade II resources, and the local authorities for Grade III resources.[34] A second, more significant consequence, relates to the power of a heritage authority to issue an owner with a repair order. The definition of “heritage site” in the Heritage Act includes only those places falling within the categories of Grade I and Grade II (National and Provincial Heritage Resources).[35] Grade III resources do not fall within the ambit of the definition of a “heritage site” and thus section 45 of the Heritage Act does not apply to Grade III buildings.
2.4 Section 34: The catchall provision
Despite the shortfall in the definition of a “heritage site”, the Act includes a provision which has far-reaching consequences for owners: all buildings older than 60 years may not be altered or demolished without a permit from the relevant heritage resources authority.[36] Thus a building need not have been identified as a heritage resource for it to fall within the ambit of the Heritage Act.
Section 34 has an impact on an owner’s rights to property. Importantly, there are instances where ownership, and particularly the owner’s right to develop her property, has to yield to the greater needs of the public. In Corrans v MEC for the Department of Sport, Recreation, Arts & Culture, Eastern Cape and others, [37] the applicant had purchased the property in question with the intention of demolishing the structure and building a guesthouse.[38] A permit was granted only for partial demolition on the basis that the structure was a valuable component of the town’s landscape and the façade of the building should remain in its original state.[39] The court dismissed the owner’s application to set aside the decision of the heritage authority on the grounds that the decision had been made in pursuance with the goals of the Heritage Act.[40]
Thus an owner is expected to refrain from altering or demolishing his own property if it is considered to be of heritage value by the community. Furthermore an owner is expected, at his own expense, to maintain the building on behalf of the public once it is formally protected under the Act.[41]