Raising the roof: the pergola saga

In the case of Wilds Homeowners’ Association NPC v Pillay and Others on 12 April 2023, the Pretoria High Court considered a dispute over a pergola built by homeowners within the estate. The Homeowners Association (“the HOA”) alleged that the construction had encroached on a street boundary line, violating both the HOA’s architectural guidelines and the National Building Regulations and Building Standards Act 103 of 1977.

The HOA sought a court order for the demolition of the owners’ new pergola and for the City of Tshwane (CoT) to take legal action against the homeowners.

The homeowners asserted that changes to the original building plans, including the disputed pergola and additional screen wall for energy efficiency, were necessary during construction, but the revised plans which were submitted by the owners, were not approved by the HOA.

The Pretoria High Court concluded that the homeowners had successfully proven that the pergola was constructed within the approved plans, despite encroaching on the boundary line, and therefore was not unlawful. The owners advanced expert evidence by employing the services of an architect. On these grounds, the HOA’s case was dismissed.

The judge noted the lack of expert evidence provided by the HOA to support its allegations that the original building plans were materially deviated from. Instead, the HOA merely submitted copies of building plans with occasional references to an annexure in its founding affidavit. The HOA expected the High Court to carry out a detailed analysis of the documents, which the court found untenable.

Following the HOA’s concession that it approved the construction of the pergola even with the encroachment in the original building plans that it approved, the owners argued that the HOA had waived any right to claim violation of its architectural guidelines.

Citing the Supreme Court of Appeal case of Road Accident Fund v Mothupi, the court affirmed that the concept of waiver was applicable, as the HOA had knowledge of its rights when it approved the plans. Consequently, the court concurred with the owners that the HOA had waived its rights, thereby further dismissing the HOA’s claims of transgressions and alleged unlawfulness.

The judgment offers a stern reminder about the concept of waiver. Community schemes approving building plans need to be conscious of the fact that giving a thumbs-up to plans might imply forfeiting rights to cry foul about certain aspects after the approval process.