The Qualidental and Gees judgments: Their impacts on the administration of applications to demolish buildings more than sixty years old
Authors Stephen Townsend
Source: South African Journal of Environmental Law and Policy 2018, p. 155 – 174
The National Heritage Resources Act protects heritage resources through two mechanisms, ‘formal’ and ‘general’ protections. One of the general protections enables the ‘screening’ of the heritage worthiness of structures more than sixty years old before authorisation to demolish is granted by the relevant provincial heritage resources authority (PHRA). In two cases, the Qualidental and Gees cases in 2007 and 2016 respectively, the Supreme Court of Appeal (SCA) confirmed the authority of PHRAs to impose conditions in order to protect abutting and nearby heritage resources when approving demolitions. Taking these two judgments into account, Gees in particular, this paper explores the consequences on future approvals of demolitions of structures more than sixty years old and suggests the necessary tempering of conditions in light of the Property, Just Administrative Action and Limitation of Rights clauses of the Constitution, and, importantly, in light of the test devised by the Constitutional Court in the FNB case.