Monthly Archives: January 2020

Has your braai been approved?

B2

Every HOA has applicable building guidelines which are stipulated in a Constitution or Memorandum of Incorporation (“MOI”) which every homeowner should be made aware of, read and understood. The guidelines will differ from estate to estate and it is important for the homeowners to adhere to these provisions.

When one wants to erect a building structure on one’s property, written plans have to be lodged with the Homeowners’ Association for consideration. The plans must be within the building guidelines provided for in the Constitution or MOI and based on that, the HOA together with their architect will make a finding. If one erects a structure without these plans, a complaint may be lodged with the municipality and one may receive a notice to obtain written approval for the authorised building work following a summons to appear in court.

The notice to be served on a homeowner who has erected any building, excluding a temporary building, is being or has been erected without prior approval from the local authority shall be served with a notice, calling upon him/her to obtain the approval, in writing, as required by The National Building Regulations and Building Standards Act No. 103 of 1977 (“the Act”), by a date specified in such notice.  Failure to comply with such a notice may constitute to a criminal offence in terms of Regulation A25(11) of the Act.

If the homeowner fails to comply with the notice, the following procedural step will be a Summons in a Criminal Case. The charges may be based on the contravention of S4(1) of the Act, which states that no person shall without prior approval, in writing, of the local authority in question erect any building in respect of which plans and specifications are to be drawn and submitted in terms of such Act. In addition, Section 4(4) of the Act which states that any person erecting any building in contravention of Section 4(1) shall be guilty of an offence and liable on conviction to a fine not exceeding R100 for each day on which he was engaged in erecting such building.

Due to the homeowner failing to comply with the notice first served, he/she will then be charged with the contravention of Regulation A25 (10) of the Act as well. In essence, he/she would then be charged with the Count 1, the contravention of Section 4(1) and Section 4(4) of the Act and Count 2, contravention of Regulation A25(10).

The penalty awarded to an accused if found guilty will be decided on a case-by-case basis. The Court may consider the nature and the amount of the penalty, the aim of the penalty, which is to compel compliance with the Constitution or the MOI.

The Act makes provision for a general penalty clause where any person convicted of an offence under this Act in respect of which a fine or imprisonment is not exceeding R600 or to imprisonment for a period not exceeding 6 months and Section 4(4) of the Act makes provision for a person to be found guilty of an offence and may be found liable on conviction to a fine not exceeding R100 for each day on which he/she was engaged in erecting such building. However, the court may reduce the penalty to such an extent as it deems equitable or reasonable in the circumstances.

It is clear from the above that the consequences of erecting a structure on one’s property without approved written building plans could be hefty and is something that can be easily avoided when one exercises a bit of patience.

Reference List:

  • The National Building Regulations and Building Standards Act No. 103 pf 1977 (as amended)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

A brief overview of parole in South Africa

B1

Bob Hewitt a former South African tennis star, has recently made headlines again after his failed bid to be released on parole. Hewitt was initially granted parole, but Justice Minister Ronald Ramola ordered that the parole board’s decision be reviewed. Hewitt’s parole was subsequently set aside. Hewitt’s parole fiasco has put parole back into the public spotlight and this article will thus briefly discuss what parole is, when an incarcerated person can potentially qualify for parole, and which factors must be considered during a parole application.

Section 73(4) of the Correctional Services Act 111 of 1998 makes provision for prisoners to be “placed under correctional supervision or on day parole or on parole before the expiration of his or her term of imprisonment.” Such an early release will be subject to conditions of community corrections as set out by either the parole board or a court. The objective of setting such conditions “are to enable persons subject to community corrections to lead a socially responsible and crime-free life during the period of their sentence and in future”.[1]

Prisoners with determined sentences can be divided into two groups for the purposes of a parole discussion. The first group are those who have been sentenced for a determinate period and where the court has stipulated during sentencing proceedings that a certain part of the sentence will be a non-parole period. An example is when a convicted person is sentenced to 15 years imprisonment and may only qualify for parole after having served 5 years of the imprisonment period. The second group of prisoners with determined sentences are those where no non-parole period has been stipulated. Section 73(6)(a) states that these prisoners may only be considered for parole after having served at least half of the sentence as imposed by the court. It must also be noted that any prisoner who has served 25 years of imprisonment must be considered for parole, regardless of how long the sentence period is.[2]

There is no standard set of factors which are considered by a parole board when considering whether or not to release a prisoner on parole. These factors may include the following:

  • seriousness of the offence for which the prisoner was convicted;
  • length of the sentence;
  • behaviour whilst in prison;
  • whether or not the person has a support structure outside of the prison;
  • whether or not the person will be able to live independently;
  • whether or not the convicted person has been rehabilitated; and
  • any other factor deemed to be relevant by the board.

The board may also consider the opinion of those who were the victims of the convicted person’s crimes.

The decision of a parole board can also be taken on review. Section 76 of the Correctional Services Act makes provision for a Correctional Supervision and Parole Review Board. This board has the power to either confirm the decision of the parole board or to substitute it with any decision which the parole board should have made. The Correctional Supervision and Parole Review Board must give reasons for its decision. It is also important to note here that a court can intervene in instances where an imprisoned person has met all the requirements to be placed on parole but has not been so placed.[3]

Reference List:

  • Correctional Services Act 111 of 1998
  • http://www.scielo.org.za/pdf/pelj/v14n5/v14n5a05.pdf
  • https://www.iol.co.za/news/south-africa/no-parole-for-convicted-rapist-bob-hewitt-35907336
  • Motsemme v Minister of Correctional Services and Others 2006 (2) SACR 277 (W)
  • [1] Section 50 of Act 111 of 1998.
  • [2] Note that there are certain other limitations on when parole may be considered for people serving periodical sentences, people convicted as habitual criminals, people imprisoned for corrective training and people imprisoned for the prevention of crime. See sections 6(b) and (c) in this regard. A detailed discussion of these provisions falls outside of the scope of this article.
  • [3] See Motsemme v Minister of Correctional Services and Others 2006 (2) SACR 277 (W) in which the Court intervened in such an instance.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)