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[2018] ZAWCHC 67
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Bryer N.O. and Others v Heritage Western Cape (16392/2017) [2018] ZAWCHC 67; 2018 (5) SA 597 (WCC) (11 June 2018)
IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case no: 16392/2017
11/6/2018
In the
matter between:
DENISE
HEATHER BRYER
N.O.
First Applicant
ALAN
BRYER
N.O.
Second Applicant
CEDRIC
KEITH GLICK
N.O.
Third Applicant
NADINE
GLICK
N.O.
Fourth Applicant
[In their
capacity as the trustees for the time being of
THE
TAMRIC TRUST
(Master’s reference
T360/92)]
v
HERITAGE
WESTERN CAPE
Respondent
Coram
:
Justice J Cloete
Heard:
2 May 2018
Delivered
:
11 June 2018
JUDGMENT
CLOETE
J:
Introduction
[1] The applicant
Trust is a property developer. It seeks the review and setting
aside
of a decision (“the first decision”) made by the
respondent, a provincial heritage resources authority established
in
terms of s 23 of the National Heritage Resources Act
[1]
(“the Act”). It also seeks a declaratory order in
relation to a subsequent decision (“the second decision”)
made by the respondent, purportedly under s 38(1) of the Act.
Both decisions pertain to a development which is being undertaken
by
the applicant in Observatory, Cape Town, known as the Anson Square
development.
[2] The parties are
ad
idem
that the first decision – the Stop Works Order issued
on 20 July 2017 for the cessation of all construction work –
falls to be reviewed and set aside on the basis that it was issued by
the respondent’s Chief Executive Officer in his capacity
as
such, and not by a heritage inspector acting in that capacity after
having conducted an on-site inspection as required by s 50(9)
and (10) of the Act. It was thus a decision not authorised by the
empowering statute and although a nullity, it must nonetheless
be set
aside by a court.
[2]
[3] The second
decision taken by the respondent and conveyed in its letter dated
17 August 2017 was that the applicant ‘…
ought to
have complied with the provisions of section 38(1) of the Act. At the
very earliest stages of initiating the development,
it should have
notified Heritage Western Cape of the details regarding the location,
nature and extent of the proposed development’
so as to
enable the respondent to consider and determine whether or not the
development could proceed, with or without conditions,
as envisaged
in terms of s 38(2) to (4) of the Act. It is the applicant’s
case that such notice was not required, whereas
it is the
respondent’s case that it was.
[4] The applicant
initially also sought the review and setting aside of the second
decision under PAJA.
[3]
The respondent took the view that the decision does not constitute
administrative action because the applicant’s obligation
to
have notified it arises
ex lege
, and furthermore none of the
applicant’s rights were adversely or potentially affected
thereby and the decision had no direct,
external legal effect.
However this issue does not need to be decided since the parties
agree that it is sufficient for this court
to determine which of
their respective interpretations of s 38(1) is correct and more
particularly, the meaning to be ascribed
to the word ‘
site’
where it appears in s 38(1)(c)(i) of the Act. This forms the
kernel of the declaratory relief contained in the notice of motion
as
well as the respondent’s counter-application.
[5] The aforementioned
section reads as follows:
‘
38(1) Subject to
the provisions of sub-sections (7), (8) and (9), any person who
intends to undertake a development categorised
as –
(a)
…
(b)
…
(c)
any development or
other activity which will change the character of a site –
(i)
exceeding 5 000m
2
in extent;
or
(ii)
involving three or
more existing erven or subdivisions thereof; or
(iii)
involving three or
more erven or divisions thereof which have been consolidated within
the past five years; or
(iv)
…
(d)
…
(e)
…
must at the very earliest
stages of initiating such a development, notify the responsible
heritage resources authority and furnish
it with details regarding
the location, nature and extent of the proposed development.’
[4]
The Anson Square Development
[6] In 2005 the applicant
acquired, in a single transaction, the 4 properties comprising
the
block boundered by Anson Road South, Anson Road East, Collingwood
Road and Drake Street in Observatory. In 2008 it acquired
two narrow
strips of land adjacent to Anson Road East from the City of Cape
Town. In the same year all of these properties were
consolidated into
one, being Erf 172047, Cape Town, measuring 5259m
2
(“the
property”). It is illustrated in the plan diagram (Figure 1)
below:
NB:
CONSULT THE PDF AND RTF VERSIONS FOR IMAGES
[7] A portion of the
property falls within a Heritage Protection Overlay Zone (“HPOZ”),
which on the above diagram is to the left (south of) and above (west
of) the bolded line with the inscription HPOZ.
[8] The property is
opposite the Observatory Village Green which has been graded
as a 3A
heritage protection place in terms of the established grading system
in s 7(1) of the Act. According to the City’s
environmental and heritage management department, the Observatory
Village Green is a recently upgraded public open square which
is well
used and has become a dignified landscape open space contributing to
the village character of the greater Observatory neighbourhood.
[9] The northern part
of the property, an area of approximately 3070m
2
, is
occupied by a complex of commercial buildings (shops and offices),
marked Existing Building 3, 4 and 5 on the diagram. These
buildings
were constructed prior to the applicant’s acquisition of the
property. They are of no heritage significance and
are not
conservation worthy.
[10] There are two semi-detached
Victorian-era cottages (marked Existing Building 2) and a
free-standing
Victorian-era cottage (marked Existing Building 1)
facing onto Drake Street on the south-west part of the property.
Before the
applicant acquired it, the free-standing cottage had been
altered to such an extent that its Victorian character was largely
lost.
The cottages have stood vacant for about the last 10 years and
are in a poor state of repair. However they have been graded as 3B
heritage resources in terms of the prescribed grading system.
[11] The south-eastern part of the
property (“the land”) is the location of the
Anson Square
development, the footprint of which is indicated by means of
cross-hatching on Figure 1. Most of the land was vacant
when the
applicant acquired it, but a small portion was occupied by extensions
to the cottages and their outbuildings, which were
more than 60 years
old. In 2007 the respondent granted the applicant a permit in terms
of s 34 of the Act for the demolition
of these structures, and
they have since been demolished. That part of the property on which
the development and existing cottages
are located measures
approximately 2 180m
2
.
[5]
The footprint of the actual development is 1 246m
2
.
[12] In 2015 the applicant
obtained approval from the City under the Land Use Planning
Ordinance
[6]
(“LUPO”) for building work to be carried out within the
HPOZ for the development of a mainly residential building with
a
ground/first storey and six further storeys (i.e. seven storeys in
total) on the southern (then vacant) portion.
[13] At that time the applicant’s
heritage consultant Mr Ashley Lillie and the heritage
officials of
the City were agreed that s 38(1)(c)(i), pertaining to a site
exceeding 5 000m
2
in extent, found no application
since the land which it was proposed to develop was substantially
less than 5 000m
2
. After further consultation with
relevant parties, a public participation process which included the
Observatory Civic Association,
and revisions to plans, the final
approval for building work within a HPOZ was granted by the City on
7 March 2017, and the
full set of building plans was approved by
the City on 12 June 2017. By then the applicant had already
commenced building
work “in anticipation” of such
approvals.
[14] The final approved plans did
not include the initial proposed seventh storey. In April
2017
application for such approval was submitted and while the application
was still pending the applicant proceeded with the construction
of
columns for that storey. This is what appears to have prompted the
Stop Works Order to be issued by the respondent on 20 July
2017.
[15] On 21 July 2017 Lillie
wrote to the respondent, stating that while the cadastral boundaries
of Erf 172047 exceed 5 000m
2
in extent, ‘
the
footprint of the actual development…is only 1 246m
2
;
and the development will change the character of only a portion of
Erf 172047, comprising less than a third of the whole property’.
[16] On the same day Ms Penny
Meyer, the respondent’s internal legal adviser, responded
as
follows:
‘
I have read your
letter… and wish to advise that HWC does not concur with your
interpretation of Section 38(1) of the NHRA.
Development and site are
both defined by the NHRA and are two very separate and distinct
things. A site could even be regarded
to be larger than the erf,
however, for practical reasons HWC has always used erf size as a
guide. It is incomprehensible to me
how you can argue that the
development does not change the character of the site, the change
from a vacant site abutting two heritage
buildings to a multi-storey
building cannot be more drastic. Two cottages in a large erf are now
two cottages adjacent to a high
density development. A NID
[i.e.
Notification of Intention to Develop]
was
accordingly required to be submitted, and the developer of the site
has consequently broken the law. HWC will not withdraw the
stop works
order and requires compliance with the NHRA.’
[17] Attempts to resolve the
impasse failed and on 17 August 2017 Mr Mxolisi Dlamuka,
the respondent’s Chief Executive Officer, wrote to the
applicant’s attorneys, the relevant portion of which reads as
follows:
‘
I have now had the
opportunity to obtain further advices on the matter and respond, as
follows:
1.
Your client, the
landowner of Erf 172047, Anson Road, Observatory, Cape Town,
commenced developing a portion of the site, which
is within the
proximity of a culturally sensitive location close to significant
heritage resources of the Observatory area, without
complying with
the provisions of Section 38(1) of the National Heritage Resources
Act, 25 of 1999 (“the Act”).
2.
I am of the view
that the spatial size specified in section 38(1)(c)(i) of the Act can
only refer to the “site” as a
whole and not to “any
development or other activity” conducted on the site.
3.
It is against this
backdrop that your client ought to have complied with the provisions
of section 38(1) of the Act. At the very
earliest stages of
initiating the development, it should have notified Heritage Western
Cape of the details regarding the location,
nature and extent of the
proposed development.
4.
Heritage Western
Cape would then have been obliged to comply with the provisions of
sections 38(2); (3) and (4) of the Act, as required.
However, your
client failed and/or neglected and/or avoided to inform Heritage
Western Cape accordingly. The development was brought
to our
attention by members of the community.
5.
In the
circumstances, the Stop Works Order (“the Order”) issued
on 20 July 2017 was lawful and accordingly stand by
it. The Order
will remain in place until such time as your client complies with the
provisions of section 38 of the Act, alternatively
until such time
the Order is uplifted by a competent Court.
6.
We await your
client’s notification in terms of section 38(1) of the Act as a
matter of priority, and, in any event within
14 (fourteen) days of
date hereof.’
[The second decision].
The
meaning of “site” in section 38(1)(c) of the Act
[18] In
The National Director
of Public Prosecution (Ex Parte application)
2018 ZASCA (86) (31
May 2018) the Supreme Court of Appeal restated the approach to the
interpretation of a statute as follows:
‘
[15]
The fundamental principle in the interpretation of statutes is that
words must be given their ordinary
meaning, unless that construction
would lead to an absurdity. In the event of an ambiguity the court
can examine the apparent purpose
of the provision and the context in
which it appears. In
Cool
Ideas 1186 CC v Hubbard & another
[2014]
ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) at 28, the
court said “[a] fundamental tenet of statutory interpretation
is that the words in a statute must be given
their ordinary
grammatical meaning, unless to do so would result in an absurdity.
There are three important interrelated riders
to this general
principle, namely: (a) that statutory provisions should always be
interpreted purposively; (b) the relevant statutory
provision must be
properly contextualised; and (c) all statutes must be construed
consistently with the Constitution. …”
See also
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.’
[19] As far as could be
established, there are no judicial decisions – reported or
unreported
– which have considered s 38 of the Act and
none of the standard academic texts discuss its import in the present
context.
[20] The respondent’s
primary contention is that what is meant by ‘
site’
in s 38(1)(c)(i) is the erf or erven on which the development in
question is to be constructed. Put differently, the submission
is
that the reference to ‘
site’
therein must be read
as a synonym for ‘
erf’
and therefore ‘…
a
site exceeding 5 000m
2
in extent’
equates
ipso facto
to the extent of the registered erf on
which the development happens to be taking place.
[21] The applicant argues that
this interpretation is wrong for the following reasons. First,
the
ordinary grammatical meanings of ‘
site’
and ‘
erf’
are different. Second, if the legislature’s intention was to
treat them as having the same meaning in the Act one would have
expected it to say so. Only ‘
site’
is defined and
it makes no reference to ‘
erf’
. A distinction is
also drawn between the two in s 38(1)(c) itself. In s 34
and s 35 of the Act a distinction is
drawn between ‘
defined
categories of site’
and ‘
a defined geographical
area’
.
[22] Third, so the applicant
argues, to equate ‘
site’
with ‘
erf’
is illogical and irrational and would lead to absurd results. Erven –
in the sense of units of land registered in the Deeds
Registry –
change in size over time, often frequently, by subdivision and
consolidation. It would be entirely arbitrary,
so it is submitted, if
the notification obligation was activated simply because of the size
of the registered unit of land on which
a particular development is
to occur.
[23] The applicant thus contends
that the word ‘
site’
in s 38(1)(c)(i) must be
given its ordinary meaning, as being an area of ground where the
development (in this case a building)
or other activity is in fact
taking place:
[7]
‘
On the facts, the site
can be nothing more than the area of land, measuring approximately
2180m
2
,
identified as “Portion 1” on the land surveyor’s
diagram (annexure DB 6). The fact that the character of this
area of
land is being changed from
“
two
cottages in a large erf”
to
“two cottages
adjacent to a high density development”
is
irrelevant for the purposes of section 38(1)(c)(i), because
the
area of land does not exceed 5 000m
2
.’
[24] On the other hand the
respondent argues that the key to construing what is meant by ‘
site’
in the context of s 38(1)(c) is to be found in the architecture
of the provision itself, and in particular the interplay between
ss
38(1)(c)(i), (ii) and (iii). Broadly stated, for purposes of ss
38(1)(c)(ii) and (iii) notice must be given in the case of any
development altering the character of a site comprising three or more
erven, irrespective of the size of the erven concerned. What
is thus
decisive is the number of erven involved, not their size. However
where one is dealing with anything less than three erven
s 38(c)(1)(i) finds application. Here, so it is argued, the
determining factor is the extent of the land on which the development
is to be located, irrespective of whether it consists of one erf or
two.
[25] The respondent does not
dispute that on its ordinary grammatical meaning ‘
site’
is not a synonym for ‘
erf’.
However it is
argued that the provisions under scrutiny in the first instance
distinguish between sites on the basis of the number
of erven
involved. Where the site comprises of less than three erven, the area
of the land in the form of the 5 000m
2
limitation
comes into play.
[26] The respondent submits that
the context in which the word ‘
site’
appears in
s 34 and s 35 is entirely different, and that therefore
these sections are not of interpretative assistance.
[27] Insofar as the applicant’s
submissions in relation to resultant absurdity are concerned,
the
respondent argues that since notification based on the number of
registered erven is the central feature of s 38(1)(c)(ii)
and
(iii), the notification requirement in these subsections is
necessarily predicated upon the assumption that the number of erven
involved can change at any time, whether through subdivision or
consolidation. It is accordingly submitted that the applicant’s
point provides no argument against a construction of s 38(1)(c)(i)
equating a site to an erf.
[28] The respondent maintains that
the fundamental problem with the applicant’s construction
of
the phrase is that determining the extent of the site becomes
uncertain and arbitrary, as evidenced by the facts of the present
matter. This is said to be acknowledged by the applicant when it
concedes that ‘
there might from time to time be disagreement
about the extent of the site on which the development or other
activity was taking
place’.
[29] The respondent thus submits
that in the context of s 38(1)(c) the extent of the site
as
contemplated by s 38(1)(c)(i) is a reference to the size of the
erf on which the development is located. Any other approach,
and
particularly the applicant’s construction of s 38(1)(c),
renders the provision incorrigibly vague.
[30] I now turn to the required
interpretative exercise and to consider the parties’ respective
arguments in light thereof.
[31] The following definitions are
included in s 2 of the Act:
‘
(viii)
“development” means any physical intervention,
excavation, or action, other than those caused
by natural forces,
which may in the opinion of a heritage authority in any way result in
a change to the nature, appearance or
physical nature of a place, or
influence its stability and future well-being, including---
(a)
construction,
alteration, demolition, removal or change of use of a place or a
structure at a place;
(b)
carrying out any
works on or over or under a place;
…
(e) any change to
the natural or existing condition or topography of land…
…
(xx)
“land” includes land covered by water and the air space
above the land;
…
(xxxii) “place”
includes---
(a)
a site, area or
region;
…
(xiil)
“site” means any area of land, including land covered by
water, and including any structures
or objects thereon;…’
[32] The word ‘
includes’
in a statutory context was considered in
R v Debele
[8]
and found to have three possible alternative meanings which may be
ascribed to the intention of the legislator. The first is that,
as a
general rule, it is not a term of exhaustive definition but rather a
term of extension (and therefore a ‘
place’
including a ‘
site’
would mean that ‘
place’
is broader and extends beyond ‘
site’
). The second
is that it is used for the purpose of enumerating the different
meanings of that word (and therefore a ‘
place’
would be the same as a ‘
site’
).
[33] The third falls somewhere in
between, where for convenience the legislator wished to group
different concepts under a single category name, but was unable to
find a generic term for this purpose and thus used a name that
was
more or less appropriate. In this instance, some of the concepts
would fall within the primary meaning of the word; others
would to an
extent; and the rest would not at all, but would carry the meaning
only as a result of the definition.
[34] Section 38(1)(c)(i) refers to
‘…
a development categorised as… any
development which will change the character of a site…
exceeding 5 000m
2
in extent…’
.
The definition of ‘
site’
should be read in
conjunction with that of a ‘
place’
, which is
defined as including a ‘
site’
, and ‘
development’
which includes construction ‘…
which may in the
opinion of a heritage authority in any way result in a change to the
nature, appearance or physical nature of a
place…’
.
This suggests that a ‘
place’
is intended to have a
broader meaning than that of a ‘
site’
, which
itself is unhelpfully defined as meaning ‘
any area of land…
including structures thereon’
. In addition, s 38,
while referring to a ‘
site’
, makes no reference at
all to a ‘
place’
.
[35] The ordinary grammatical
meaning of ‘
site’
is ‘
an area of ground
on which something is located; a place where a particular event or
activity is occurring or has occurred; fix
or build in a particular
place’.
[9]
It is also described as meaning ‘
situation, especially of a
building; ground occupied or set apart for a building’.
[10]
[36] These ordinary grammatical
meanings, read together with the definition of ‘
site’
in the Act, lend to an interpretation that a ‘
site’
means a particular area of land set aside for a particular activity,
including a building activity. This interpretation also tends
to
support the apparent intention of the legislature not to equate a
site with a place, the latter having a broader meaning.
[37] Section 38 falls under the
heading ‘
Heritage resources management’
whereas
s 34 falls under ‘
Structures’
and s 35
under ‘
Archaeology, palaeontology and meteorites’
.
The relevant parts of s 34 and s 35 read as follows:
‘
34.
(1) No person may alter or demolish any structure or part of a
structure which is older than 60 years without a permit issued by
the
relevant provincial heritage resources authority.
…
(3) The provincial heritage
resources authority may at its discretion, by notice in the
Provincial Gazette
,
make an exemption from the requirements of subsection (1) within
a geographical area, or for certain defined categories of
site within
a defined geographical area,…
…
35.
(1)
Subject to the provisions of section 8, the protection of
archaeological and palaeontological sites and material and meteorites
is the responsibility of a provincial heritage resources authority…
…
(4) No person may, without a
permit issued by the responsible heritage resources authority---
(a)
destroy, damage, excavate, alter, deface or otherwise disturb any
archaeological or palaeontological
site…
…
(6) The responsible heritage
resources authority may, after consultation with the owner of the
land on which an archaeological or
palaeontological site or a
meteorite is situated, serve a notice on the owner or any other
controlling authority, to prevent activities
within a specified
distance from such site or meteorite.’
[38] While it is so that these
sections refer to a different kind of site, the context in which
the
word is used indicates that a site is regarded as something other
than a defined geographical area in s 34, and something
other
than a registered unit of land for purposes of s 35. Apart from
the obvious reason why this is so, the manner in which
‘
site’
is used in these sections also gives support to an interpretation
that a site does not necessarily equate to a registered unit
of land,
or erf. Moreover there is a presumption that the use of the same word
or phrase in a statute denotes the same concept,
unless it is clear
from the statute concerned that a contrary interpretation is intended
by the use of the word in one section
as compared with another
section.
[39] In
Gees v
Provincial Minister of Cultural Affairs and Sport, Western Cape and
Others
[11]
the issue was whether (in terms of s 48(2) of the Act), a
provincial heritage resources authority may lawfully impose
conditions
controlling future development on a property with no
formal heritage status, when granting a permit for the demolition of
an entire
structure older than 60 years. The relevant part of s 48(2)
provides that the authority concerned ‘
may in its discretion
issue to such a person a permit to perform such actions at such time
and subject to such terms, conditions
and restrictions or directions
as may be specified in the permit, including a condition…’
.
The appellant submitted that the conditions imposed in the demolition
permit were
ultra vires
the provisions of s 48(2), but
the Supreme Court of Appeal rejected this submission, holding that
the word ‘
including’
in the context used in
s 48(2) ‘
is a word of enlargement, not of limitation’.
It was held that:
‘
[18] What the
appellant contends for is a construction of s 48(2) that limits
its wide scope of application in the event of
the granting of a
permit for the demolition of a structure which enjoys no formal
heritage protection. One may ask why, if this
were the legislature’s
intention, it had not been conveyed by curtailing the wide ambit of
s 48(2) in such circumstances.
This could easily have been done
and the failure of the legislature to do so necessarily points to a
contrary intention.’
[40] To my mind, the same
question may be asked of the legislator’s use of the word
‘
site’
rather than ‘
place’
in
s 38(1)(c). Had the legislature intended that ‘
site’
would have a broader meaning than its ordinary grammatical one for
‘
any area of land’
in the definition itself, it
could easily have said so. Adopting the words in
Gees
, such
failure necessarily points to a contrary intention.
[41] While the provisions of
s 38(1)(c) distinguish, on the face of it, in the first instance
between sites based on the number of erven involved, it is my view
that to accept this as the end of the matter would be wrong.
Instead,
taking all of the above into account, it is my view that ‘
site’
must be interpreted to mean an area of ground where the development
or other activity is in fact taking place, where that particular
area
of ground exceeds 5 000m
2
in extent.
[42] First, the ordinary
grammatical meaning of ‘
site’
gives content to its
definition in the Act. Second, this interpretation does not give rise
to ambiguity, nor does it lead to absurdity.
Third, such an
interpretation is purposive in approach.
[43] On the facts in this matter
the ‘
site’
is objectively ascertainable from the
land surveyor’s diagram, identified as Portion 1, measuring
approximately 2 180m
2
. To equate ‘
site’
with ‘
erf’
in s 38(1)(c)(i) would mean that
the notification obligation would
not
be triggered in relation
to a particular development situated on an erf not exceeding 5 000m
2
;
but it
would
be triggered, in relation to the same
development, on the same area of land, if the erf concerned is
consolidated with another
erf the following day which results in it
being greater than 5 000m
2
. The converse is also
true, as illustrated by the facts of the present case. If the
interpretation preferred by the respondent
is to prevail, the
notification obligation exists because Erf 172047 exceeds 5 000m
2
;
but it would not have existed had the subdivision of Erf 172047, for
which the applicant has applied, been granted prior to the
development occurring. That is an unlikely and irrational result.
[44] The fact that there might
from time to time be disagreement about the extent of the site
on
which the development or other activity is taking place – a
factor on which the respondent places emphasis in support
of the
interpretation for which it contends – should not detract from
this interpretation:
44.1 The same argument might be raised regarding
the use of the word ‘
site’
in s 34 and s 35,
where ‘
sites’
are clearly intended to be
identified, not with reference to a unit of land registered in the
Deeds Registry, but with reference
to the actual extent of the area
concerned; and
44.2 The fact that provisions in an Act might in a
particular case give rise to disputes of fact in the course
of their
implementation is no reason to interpret them in a way which
eliminates that potential. This would amount to substituting
the
legislator’s intention with the opinion of the court. As was
stated in
Kubyana v Standard Bank of SA Ltd
:
[12]
‘
[78] The process of
interpretation, I emphasise, does not involve a consideration of
facts. Matters of evidence do not come into
the equation. This is so
because statutory construction is an objective process, with no link
to any set of facts but in terms
of which words used in a statute are
given a general meaning that applies to all cases, falling within the
ambit of the statute.’
[45]
In the result the
following order is made:
1.
The decision taken by the
respondent on 20 July 2017 to issue an order (the ‘
Stop
Works Order’
) for the cessation of all work in
connection with the Anson Square development on Erf 172047 Cape Town,
at Anson Road, Observatory,
Cape Town (‘
the
Property’
) is reviewed and set aside.
2.
It is declared that the
applicants are not required, and the respondent has no power to
require the applicants, to comply with the
provisions of section
38(1)(c)(i) of the Heritage Resources Act 25 of 1999, as well as the
remaining provisions of s 38, to the
extent that they may be
applicable, in relation to the Anson Square development being
undertaken by and at the instance of the
applicants on the Property.
3.
Part A of the
counter-application is dismissed.
4.
The costs of both the
application and counter-application shall be borne by the respondent,
including any reserved costs orders.
J I CLOETE
For
Applicants
: Adv J
Muller SC
–
4246993 (0823701337),
1204advs@capebar.co.za
;
Instructed
by: Belinda Van der Vyver, Walkers Inc., 4641400,
belindav@walkers.co.za
;
For
Respondent
:
Adv S P
Rosenberg
SC
– 4261311
(0728311554)
rosenberg@law.co.za
;
and
Adv
N
Mbangeni
– 4221378 (0844267983),
noxolo.mbangeni@capebar.co.za
;
Instructed
by: Sharma Chetty, State Attorney – 4419229,
ShChetty@justice.gov.za
;
[1]
25 of 1999.
[2]
Merafong City v Anglogold Ashanti
2017 (2) SA
211
(CC) at paras [41] to [43] and fn 63.
[3]
Promotion of Administrative Justice Act 3 of 2000
.
[4]
Sub-sections 38(7), (8) and (9) are not relevant for
present purposes.
[5]
In early 2017 the applicant applied for subdivision of
the property into two portions for reasons unrelated to the
present
application. The subdivision application is still pending.
[6]
15 of 1985.
[7]
Para 116 of the founding affidavit of Denise Bryer.
[8]
1956 (4) SA 570
AD at 575A-576C.
[9]
Concise Oxford English Dictionary 10
th
Ed.
[10]
Chambers Twentieth Century Dictionary.
[11]
2017 (1) SA 1
(SCA).
[12]
2014 (3) SA 56
(CC).