KNYSNA NEWS - In September 2018, the then town planner Hennie Smit illegally approved the building plans. 

When the construction of the third floor commenced in 2019, it became known that the approval of the plans was illegal, as a height departure that Smit had previously granted, had lapsed.

Also in 2018 the town planner Marike Vreken, commissioned by André Schempers, applied for an extension of the validity of the approval, which she withdrew in March 2019 when she realised that Smit had generously approved the building plans anyway.

Although the approval had finally lapsed and could not be revived, Schempers was advised to resubmit the withdrawn application to extend the departure and Smit approved the application, without any notice to interested parties.

The motivation for the approval was as follows:

"The approval of this application is beneficial for both the applicant and the municipality, in order to avoid the fact that the Knysna Municipality have (sic) to take its self (sic) on legal review. To rectify the administrative oversight, it would be prudent to continue with the application and allow the property owner to resubmit the building plan for approval."

The building plans were resubmitted and Smit again approved the plans on 13 June 2019, despite the fact that Thesen Islands Homeowners Association (TIHOA) had sent a letter to Smit on 10 June 2019, enquiring about the construction of the third storey.

After the second unlawful approval of the plans, it became clear that in addition to the height, the plans differed significantly from the plans in respect of which the departure was granted (two new wings had been added) and did not comply with the regulation plan in that:

• The floor factor was exceeded by 150m²;
• The third storey is not permitted in the plan;
• The building lines in the regulation plan were not complied with.

TIHOA asked the municipality to issue an order to stop the construction and when the building work continued, they obtained an interdict to stop the work and applied to court to set aside the illegal approvals.

In the meantime Smit was suspended and faced a disciplinary hearing that took more than a year to complete and he was finally found guilty and dismissed last week.

The municipality did not oppose the case and the matter was ready for hearing when Schempers delivered a new affidavit in which he alleged that the municipality had never approved the subdivisions of phase 5A of Thesen Islands. 

Phase 5A comprises of 30 high value residential and commercial properties in the commercial component and includes TH1, which belongs to Schempers. The implications, should Schempers be correct, cannot be overstated. The result would be that the subdivision, registration, sale and building plans of all 30 properties, including TH1, are illegal.

The municipality agreed to respond to the allegations, but later reneged on its commitment, to do so, leaving TIHOA with the challenging task of defending the Knysna Zoning Scheme and proving that the municipality approved phase 5A in 2003.

This resulted in the conversion of the application into a trial and a referral of the matter to evidence.

If Schempers' allegations are proved to be correct and his defence succeeds, the owners of the other 29 properties in phase 5A would have invested millions on purchasing and developing erven that were never lawfully subdivided and could therefore not have been sold to them. This would expose the municipality to damages claims in the millions by the 30 owners.

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