A POPULAR, multimillion rand Summerstrand guesthouse will have to be completely demolished by February 20 or its owners will face jail time.
The high court decision to demolish the Access Guest House comes after a seven-year legal battle that has even involved allegations that a doctor and his wife sounded a siren every time a person of colour checked in at the guesthouse.
Prominent political figures in Nelson Mandela Bay were approached by guesthouse owners Perapanjakam Naidoo and her husband Persotam to sway the municipality in their favour. The guesthouse has been found to be in gross contravention of building restrictions.
The final ruling in the case by Judge John Smith in the Port Elizabeth High Court last month brought the battle to an end between retired radiologist Phillipus van Rensburg and his wife Wilma, trustees of the Hobie Trust and the owners of the property, and the Naidoos, whose Shan Trust owns Access Guest House.
A second guesthouse owner, Marais Ellis, won at least a temporary reprieve for his guesthouse, Summer House, after this was also found to be an illegal building that originally had to be demolished by December 20.
Ellis also faces contempt of court proceedings with a date to be fixed in this year for a hearing.
Several of the erven in Summerstrand Extension One have strict title-deed conditions, allowing only for the construction of a single dwelling within building lines. The Naidoos were found to have built an additional building and additional storey onto their main house illegally. In 2007, Judge Johan Froneman, then a judge in the Port Elizabeth High Court but now a justice at the Constitutional Court, ordered the Naidoos to demolish the building on the northern side of their property within 60 days and also demolish the top storey and staircase of another house on the property. Since then, the Naidoos have been described by several judges as "relentless” in their efforts to overturn the order.
They claimed in papers before court that they were being targeted as they started the first fully BEE-owned guesthouse in the area.
Perapanjakam Naidoo added that every time she had guests of "African or Indian origin” the Van Rensburgs would "sound a siren” and take pictures.
However, these claims were never substantiated.
The Naidoos also approached the Port Elizabeth High Court, the Supreme Court of Appeal, the Constitutional Court and former Nelson Mandela Bay mayor Nceba Faku.
Faku confirmed to Weekend Post that he had been approached to intervene last year, but preferred not to comment last night.
Naidoo said in court papers that they had been trying in vain since September 2010 to find a "workable and equitable solution to bring an end to the level of discourse and acrimony”.
She said they had spent in excess of R1.5-million in legal fees to save their guesthouse.
The court also heard that a senior legal advisor of the municipality, advocate Mhleli Tshamase, had intimated to Naidoo that the municipality was planning on bringing a blanket application to ensure the removal of restrictions – but could not do so as it did not have the money at the time.
The Van Rensburgs’ attorney, Eric de Villiers, said when the municipality gave this indication his offices were swamped with desperate homeowners in Summerstrand Extension One who wished to fight this.
Shortly afterwards, the Supreme Court of Appeal all but dismissed any notion of this happening when one of the most senior judges at that court, Judge Mohamed Navsa, wrote a judgment in one of the many appeals in the saga.
"If landowners across the length and breadth of South Africa, who presently enjoy the benefits of restrictive conditions, were to be told that their rights, flowing from these conditions, could be removed at the whim of a repository of power (the Nelson Mandela Bay Municipality), without hearing them or providing an opportunity for them to object, they would rightly be in a state of shock,” he wrote.
Naidoo then started circulating a petition canvassing support to approach Parliament to quash the demolition order.
"This petition contained various vexatious and malicious statements which in my view are defamatory of Judge Froneman,” Smith said.
"After they exhausted their legal remedies they were determined to avoid compliance with the order through political intervention . . . and resorted to enlisting the assistance of various political office bearers.”
Another 16 homeowners have also applied for restrictive conditions to be lifted on their property.
"The legal system with prejudicial judges has failed us completely in not allowing us a fair hearing,” Naidoo said in the petition to parliament.
Smith, however, said the Naidoos were clearly in contempt of court.
He found them guilty of contempt of court and sentenced each to six months’ imprisonment that was suspended on condition that the buildings are demolished by February 20. He also made a punitive cost order against them.