WELKOM – The Free State High Court has ordered the Matjhabeng Local Municipality to compensate 48 residents of Kok Street in St Helena, Welkom, after ruling that the municipality acted unlawfully when it demolished security gates erected by the residents without first obtaining a court order.

In a judgment delivered on 6 July, the court found that while the residents had acted unlawfully by installing the gates without municipal approval, the municipality had also failed to follow the legal procedures required before demolishing the structures.

The matter arose after residents sought to establish a gated community in February 2023 to improve safety and reduce crime in the neighbourhood. Through their attorney, they informed the municipality of their intention to erect gates at the intersections of Kok and Naude, Kok and Letaba, and Kok and Unicorn streets.

The municipality responded by advising that the proposed road closures required formal approval following an application process in terms of planning legislation. Municipal officials later met with representatives of the residents and explained the procedures that had to be followed before any gates could be erected.

Despite this, the residents proceeded with construction on 17 March 2023 without receiving authorisation.

On 5 May 2023, municipal officials, accompanied by police and security personnel, demolished at least two of the gates and removed building materials without obtaining a court order or issuing prior compliance notices.

The residents initially claimed almost R397 000 in damages but later reduced their claim to R237 732.62, representing the proven costs of the demolished gates and associated infrastructure.

During the trial, municipal officials conceded that no inspectors had been appointed, no compliance notices had been issued and no interdict or demolition order had been obtained before the structures were removed.

The court found that both parties had acted unlawfully. While the residents knowingly ignored the municipality’s approval process, the municipality resorted to “self-help” instead of following the procedures prescribed by the Spatial Planning and Land Use Management Act (SPLUMA) and its own by-laws.

In his judgment, the presiding judge said permitting such conduct would amount to allowing “survival of the fittest”, adding that public authorities are equally bound to act within the law.

The court was also critical of parts of the municipality’s evidence, describing one senior official as evasive during cross-examination, while finding the residents’ witnesses to be credible and consistent.

The court awarded the residents R237 732.62, together with interest at 10.25% per annum from 18 January 2024 until payment. Matjhabeng Local Municipality was also ordered to pay the plaintiffs’ legal costs on the ordinary party-and-party scale.

The court rejected the residents’ request for punitive costs, noting the case originated from their own unlawful conduct and that innocent taxpayers should not be further burdened.

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