About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2018
>>
[2018] ZAWCHC 98
|
|
Habitat Council v BPH Properties (Pty) Ltd (A388/17) [2018] ZAWCHC 98 (17 August 2018)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
JUDGMENT
CASE
NO: A388/17
In
the matter between
HABITAT
COUNCIL
APPELLANT
and
BPH
PROPERTIES (PTY) LTD
RESPONDENT
Coram:
NDITA, ROGERS AND SAVAGE JJ
Heard
:
30 JULY 2018
Delivered:
17 AUGUST 2018
ORDER
On
appeal from:
The
Western Cape High Court (Samela J sitting as court of first instance)
(a) The appeal is upheld with
costs, including the costs of the application for leave to appeal in
the court a quo and the application
for leave to appeal brought in
the Supreme Court of Appeal.
(b) The order of the court a
quo is set aside and replaced with an order the following terms:
‘
The application is
dismissed with costs.’
JUDGMENT
Rogers
J (Ndita and Savage JJ concurring):
[1]
The appellant, the Habitat
Council (Habitat), a voluntary association concerned with
conservation of the built environment, appeals
against the judgment
and order of the court a quo (Samela J) by which that court upheld an
application, at the instance of the
present respondent, BPH
Properties (Pty) Ltd (BPH), for the review and setting aside of a
decision of an independent appeal tribunal
(IAT) established in terms
of s 49(2) of the National Heritage Resources Act 25 of 1999
(the Act).
[2]
In August 2011 BPH applied for
permission, in terms of s 34 of the Act, to demolish a seaside
cottage known as Highclere located
on a property in
Blaauwbergstrand
belonging to BPH. A demolition
permit was required because the cottage is more than 60 years old. In
November 2011 Heritage Western
Cape (HWC), a provincial heritage
resource authority established in terms of s 23 of the Act and
acting in this instance through
its Built Environment and Landscapes
Committee (BELCom), granted the permit. In March 2012, and at the
instance of interested neighbours,
the HWC appeals committee, acting
in terms of s 49(1) read with the provincial regulations
governing appeals to HWC’s
council, reversed BELCom’s
decision. In terms of s 49(2) BPH filed a further appeal to the
IAT which dismissed the appeal
on 31 October 2013. That is the
decision which BPH successfully applied to have set aside. Among the
parties cited or joined as
respondents were the City of Cape Town
(the City) and Habitat. The City filed explanatory affidavits broadly
in support of the
IAT’s decision. Habitat actively opposed the
review.
[3]
It is common cause that the IAT’s
decision is ‘administrative action’ as defined in the
Promotion of Administrative
Justice Act 3 of 2000 (PAJA). The review
application was issued on 2 March 2016, slightly more than 28 months
after the IAT’s
decision. The 180-day period referred to in
s 7(1) of PAJA began to run on or shortly after 31 October 2013.
BPH’s delay
in issuing the review application was thus per se
unreasonable (
Opposition
to Urban Tolling Alliance & others v The South African National
Roads Agency Limited & others
[2013]
4 All SA 639
(SCA) para 26). A threshold question in the court a quo
was whether the 180-day period should be extended in terms of s 9(1).
In terms of the latter section the court may exercise the power of
extension ‘where the interests of justice so require’.
One of Habitat’s grounds of appeal is that the court a quo
erred in granting an extension.
[4]
The court a quo considered that
BHP had provided a reasonable explanation for the delay. BPH had
attempted, in protracted correspondence
with HWC and the City, to
resolve the dispute. Although the period within which the application
was instituted far exceeded 180
days, the delay was not, in the court
a quo’s opinion, unreasonable.
[5]
The finding that the delay was
not unreasonable cannot be sustained in the light of binding
authority that a delay exceeding 180
days is per se unreasonable. The
court a quo probably meant that there was a reasonable explanation
for the delay and that it was
thus in the interests of justice to
extend the period. I respectfully disagree.
[6]
As explained by Nugent JA in
Gqwetha v Transkei
Development Corporation Ltd & Others
2006
(2) SA 603
(SCA) paras 22-23, the rationale for the delay rule (now
embodied in PAJA) is twofold:
(1)
Failure to bring a review within a reasonable time may cause
prejudice to respondents. (2) More importantly, there is a
public interest element in the finality of administrative decisions.
Although the potential for prejudice to respondents is inherent
in
the second of these considerations, actual prejudice is not a
precondition for refusing to entertain a late application
though the extent of actual
prejudice is a relevant factor which may even be decisive where the
delay has been relatively slight.
[7]
In
Aurecon
South Africa (Pty) Ltd v Cape Town City
2016
(2) SA 199
(SCA) Maya JA said that whether it is in the interests of
justice to condone an unreasonable delay ‘depends entirely on
the
facts and circumstances of each case’ (para 17). She listed
among relevant considerations: (i) the nature of the relief sought;
(ii) the extent and cause of the delay; (iii) its effect on the
administration of justice and other litigants; (iv) the
reasonableness
of the explanation for the delay, which must cover the
whole period of delay; (v) the importance of the issue to be raised;
and
(vi) prospects of success.
[8]
To understand BPH’s case on
delay, I must deal briefly with the question of the property’s
heritage grading. The IAT,
in agreement with the appeals committee,
found that Highclere had sufficient heritage value to justify its
conservation as a heritage
resource. It is clear from the IAT’s
reasons that this conclusion formed the basis of its dismissal of
BPH’s appeal.
After dismissing the appeal, the IAT proceeded
(i) to ‘recommend’ that HWC ‘attend to the
formal protection’
of the property; (ii) to find that BPH
had wilfully neglected the maintenance of the property, HWC thus
being ‘advised’
to serve on BPH an order in terms of s 45
to repair and maintain the property.
[9]
HWC can only issue a compulsory
repair order in terms of s 45 if the property in question is a
‘heritage site’.
By virtue of the definition of the
latter expression in s 1, only a site which has been declared a
national or provincial
heritage site qualifies as a ‘heritage
site’. The property in the present case has not been so
declared.
[10]
In terms of HWC’s
grading policy, which HWC adopted in July 2012, national and
provincial heritage sites are classified as
Grade I and Grade II
respectively. Grade III applies to other heritage resources
worthy of conservation. Generally the responsible
authority for Grade
III resources is the relevant local authority. The Grade III
classification is divided into three sub-categories.
Grade IIIA
applies to ‘buildings and sites that have sufficient intrinsic
significance to be regarded as local heritage
resources; and are
significant enough to warrant
any
alteration being regulated’ (emphasis in the original).
Grade IIIB applies to buildings or sites of ‘marginally
less significance’ militating against the regulation of
internal alterations. Grade IIIC applies to buildings or sites ‘whose
significance is, in large part, a significance that contributes to
the character or significance of the environs’. These
buildings
or sites should thus ‘only be protected and regulated
if
the significance of the environs is sufficient to warrant protective
measures’
(emphasis in the original).
[11]
The grading policy has not
been promulgated by regulation in terms of s 7 of the Act but
appears nonetheless to be a document
which heritage authorities and
heritage practitioners follow. When the IAT made its decision
Highclere had not yet been graded.
The IAT’s ‘advice’
to HWC to serve a s 45 order could only be implemented if the
property were declared
a national or provincial heritage site; and in
terms of the grading policy such a property would be accorded a Grade
I or Grade
II grading as the case might be.
[12]
In its review application
BPH criticised the IAT for reaching its decision despite the absence
of a formal grading of the property.
Following the decision, BPH
sought to obtain a formal grading of the property. BPH’s
counsel submitted that it was reasonable
for BPH to delay its review
application for this purpose. If HWC had accorded the property a
Grade II classification there would
have been no practical point in
pursuing a review because, if the matter were remitted to the IAT, it
would inevitably reach the
same conclusion and could lawfully
instruct the HWC to serve a s 45 order. Conversely, if the
property were found not to have
any conservation significance or were
only classified as Grade III, the IAT’s decision could not be
implemented and would
be exposed as fatally deficient.
[13]
Subsequent to the IAT’s
decision, both HWC and the City graded the property. In October 2014
HWC classified it as Grade IIIC.
Shortly thereafter, seemingly in
January 2015, the City classified it as Grade IIIA. On the papers we
must find that the City was
a competent authority to classify the
property; Grade IIIA should thus be taken to be its current grading.
The City has no competence
to accord the property a higher grading.
HWC, which could declare the property a provincial heritage site
(Grade II), has evidently
concluded that it does not warrant such a
classification.
[14]
There are a number of
difficulties with BPH’s reliance on it subsequent attempts to
obtain a grading of the property. First,
the grading of the property
did not have the significance for which BPH contends. Section 34,
which requires a permit to alter
or demolish a structure which is
more than 60 years old, is a self-standing source of protection for
buildings with heritage significance.
A property need not have been
graded for this protection to apply (
Qualidental
Laboratories (Pty) Ltd v Heritage Western Cape & another
[2007] ZASCA 170
;
2008 (3) SA 160
(SCA) para 12; see also
Gees
v Provincial Minister of Cultural affairs and Sport, Western Cape &
others
[2016] ZASCA
136
;
2017 (1) SA 1
(SCA)). When the IAT concluded that Highclere had
sufficient heritage significance to make demolition inappropriate, it
was not
purporting to accord the property a particular grading. It
did not have to pigeonhole its conclusion within HWC’s grading
system.
[15]
Second, BPH’s
attempt to forge an inextricable link between the dismissal of its
appeal and the IAT’s ‘recommendation’
and ‘advice’
to HWC rests on an incorrect reading of the IAT’s decision. The
IAT in the course of its reasoning
emphasised that the sole
consideration in deciding whether to uphold or dismiss the appeal was
Highclere’s heritage significance.
BPH’s alleged wilful
neglect of the property was only considered by the IAT to be germane
to the question whether a compulsory
repair order would be
appropriate following the dismissal of the appeal. The IAT did not,
however (as BPH’s counsel put it),
‘instruct’ the
HWC to take any particular action. The IAT made a recommendation and
gave advice. HWC was not obliged
to heed the recommendation and
advice; and of course it could only implement the advice if it was
lawful to do so. If Highclere
did not qualify for protection in terms
of s 45, a compulsory repair order could not be issued. This
does not taint the IAT’s
decision to dismiss the appeal (ie its
agreement with the appeals committee that demolition was
inappropriate).
[16]
BPH’s counsel argued
that the recommendation and advice reflected an erroneous assumption
by the IAT that the property was
classified, or would in due course
be classified, as Grade II; and that this misconception tainted its
assessment of the property’s
heritage significance. I disagree.
Since there was no evidence before the IAT to the effect that the
property had been declared
a national or provincial heritage site or
that it had been formally graded, there is no reason to infer that
the IAT wrongly assumed
any such declaration or grading to be in
place. On the contrary, the IAT had before it the appeals committee
decision recommending
that HWC take steps to grade the property and
investigate its provisional protection. The IAT had submissions on
behalf of BPH
and objectors as to whether Highclere warranted a
classification as Grade II or Grade III. In its reasons the IAT
mentioned BPH’s
submission that Highclere did not warrant a
Grade II classification and the objectors’ submission that BPH
had not provided
sufficient information ‘upon which to base or
oppose a grading”. The IAT did not by its decision purport to
resolve
this dispute; it stated its findings on the heritage value of
the site without reference to grading.
[17]
One possibility –
the most likely, in my opinion – is that the IAT overlooked the
limited scope of s 45. The IAT
may mistakenly have thought that
‘formal protection’ at the instance of HWC would result
in Highclere automatically
being a ‘heritage site’,
without appreciating the distinctions between the levels of
protection (in particular the
distinction between Grades II and III).
[18]
Another possibility is
that the IAT considered the property worthy of declaration as a
provincial heritage site and assumed that
in due course, pursuant to
‘formal protection’, the property would be classified as
Grade II. This is unlikely because,
if it had been present to the
IAT’s mind, I would have expected it to be articulated in its
reasoning. But even if this had
been the IAT’s view, the
subsequent history shows no more than that other agencies have
accorded Highclere a somewhat lesser
heritage significance than the
IAT did. The fact that agencies differ from each other does not mean
that one of them has committed
a reviewable irregularity. The only
importance of the subsequent classification is that the IAT’s
‘advice’ cannot
be implemented.
[19]
In short, it is difficult
to see how subsequent grading could strike at the essence of the
IAT’s decision, namely that Highclere’s
heritage
significance made demolition inappropriate. If the property had
subsequently been classified as Grade II, this would only
have
affected the IAT’s ‘advice’. But in any event,
there is no reason to believe that BPH would have taken a
Grade II
classification lying down. BPH’s counsel acknowledged, at the
hearing of the appeal, that BPH would probably have
challenged that
classification by way of internal appeal and if necessary on review.
A Grade II classification would thus not have
resolved anything; it
would simply have added a further decision for BPH to attack. A Grade
III classification would also not have
resolved the case. For reasons
I have explained, it would only have rendered the IAT’s
‘advice’ incapable of
implementation.
[20]
It appears from the record
that the solution BPH had in mind was to persuade the authorities to
accord Highclere no, or the lowest
possible, heritage classification,
so that BPH could lodge a fresh demolition application on the
strength of such grading. In principle,
BPH was entitled to follow
this course. Indeed it did so. Following HWC’s classification
of the property as Grade IIIC, BPH
submitted a fresh demolition
application to HWC. It also needed approval for demolition from the
City in terms of the National
Building Regulations and Building
Standards Act 103 of 1977. The City, which classified Highclere as
Grade IIIA, refused a demolition
permit. On the papers, BPH’s
fresh application for a demolition permit from HWC is still pending.
Be that as it may, this
‘solution’ was not directed at
the IAT’s decision. On the contrary, it is a solution which
entirely bypassed
the IAT’s decision. While it was open to BPH
to embark on a fresh process, it did so at its peril in so far as the
IAT’s
decision is concerned.
[21]
Third, and even if BPH in
good faith believed it was following a legitimate process which might
avoid the need for litigation, it
fell far short of providing a
reasonable explanation for the whole period of delay. In assessing
this question, one must remember
that the IAT’s decision of
October 2013 represented the culmination of an administrative process
which had started as early
as August 2011 and which had been the
subject of decisions by BELCom in November 2011 and by the appeals
committee in March 2012.
This gave the need for finality added point.
I should add that the demolition application of August 2011 had been
preceded over
the years by several others which had been refused.
[22]
Following the publication
of the IAT’s decision on 31 October 2013, BPH waited until 19
December 2013 – more than a
month and a half – before
asking HWC whether it intended to implement the IAT’s decision.
Even then, BPH did not ask
HWC to grade the property. On 31 January
2014 HWC notified BPH that it had resolved to appoint a heritage
specialist to undertake
an assessment of the property with a view to
grading the site. The next step – again more than a month and a
half later –
was BPH’s attorneys’ letter of 18
March 2014 to HWC stating that it held instructions to launch a
review and asking
about progress in the grading of the property. The
attorneys asked HWC to confirm that the 180-day period for launching
a review
would be extended by agreement, failing which BPH would have
to apply for an extension. HWC was asked to revert as a matter of
urgency.
[23]
After a further month –
on 16 April 2014 – BPH’s attorneys sent a letter to the
objectors’ consultant, stating
that BPH intended to institute
review proceedings but was unable to do so until HWC graded the
property.
[24]
On 23 April 2014 BPH’s
attorneys again told HWC that its client would be taking the IAT’s
decision on review and that
unless it received a satisfactory
proposed programme for investigating the property’s grading
within 30 days it would consider
an application to compel. An
exchange of correspondence between HWC and BPH during May 2014 did
not take the matter further. Despite
having received no response from
HWC regarding the request to extend the 180-day period, BPH did not
launch the review. BPH did
not seek an extension of time from other
interested parties.
[25]
On 25 June 2014, more than
a month after their last letter to HWC, BPH’s attorneys
complained to the provincial minister about
the way its applications
relating to the property had been dealt with. About two months later
there was a meeting between BHP and
her HWC from which it was
apparent that HWC had not yet prepared the brief for its heritage
consultant. Eventually, on 29 October
2014, HWC classified the
property as Grade IIIC. Instead of launching its review application
(on the basis that the IAT’s
supposed misconception had now
categorically been demonstrated), BPH instead submitted a fresh
demolition application to HWC. On
28 January 2015 HWC’s
consideration of the fresh application was postponed to 10 March 2015
on which occasion is seems to
have been further postponed to June
2015.
[26]
In the meanwhile, and in
January 2015, the City issued a provisional protection notice to BPH
in terms of s 29(2), based on
its classification of the property
as Grade IIIA. The City also, as noted earlier, refused to issue a
demolition permit in terms
of Act 103 of 1977. It was thus clear that
neither of the potentially competent grading authorities was going to
classify the property
as Grade II yet no review application followed.
Instead, BPH began to cross swords with the City, alleging in a
letter of 18 February
2015 that the City’s officials were not
acting in good faith but stating that BPH would meet with the City
without prejudice
regarding the provisional protection.
[27]
In March 2015 the City
wrote to BPH, explaining why it considered Highclere to be
conservation-worthy, emphasising that it had reached
its own
conclusion rather than relying on the IAT’s decision. The City
was willing to explain its reasoning more fully in
a meeting. BPH’s
attitude was that it required the City to provide it with various
documents before such a meeting.
[28]
Following a flurry of
correspondence, there was a site meeting between representatives of
BPH and the City on 28 May 2015. BPH’s
representative said that
no new information was contained in the City’s latest
assessment, that the company was ‘past
spending money’ on
the property, and that its options were either to abandon the
property or litigate on the basis that the
administrative decisions
made in respect of the property were irrational. Nothing that
happened there could have led BPH to believe
that the City was
relenting. The combative tone of BPH’s attorneys’ letters
of 3 and 9 June 2015 is consistent with
parties at loggerheads.
Indeed, in the second of these letters BPH’s attorneys said
that any belief by the City that ‘negotiation
and consultation
would turn the tide’ was ‘wholly unreasonable’,
particularly in the light of the meeting between
the parties on 28
May.
[29]
Pursuant to a BELCom
meeting on 17 June 2015, at which BPH’s new demolition
application was considered, the City on 24 June
2015 submitted to HWC
its objections to the application. The City emphasised that the IAT’s
decision remained in place until
set aside by a court. It complained
of BPH’s recourse to multiple demolition applications without
any intervening change
in circumstances. The City also contested
HWC’s right to grade the property, contending that this was a
local authority function.
The City contended that HWC’s IIIC
grading was contradictory to its own policy guide and ignored
‘multiple layers of
significance’ and that in the City’s
view Highclere warranted ‘at least’ a IIIA grading ‘based
on
age, rarity, representivity and intactness’, being ‘a
rare example of calcrete constructed flat-roofed seaside cottage
with
a relatively intact stone boundary wall’. The City’s
position, as articulated in this document, must have made
it obvious
to BPH that a review application would now have to be launched. At
any rate, a belief that a practical solution was
likely would have
been divorced from reality.
[30]
There was further
correspondence between the City and BPH in July 2015 in which the
City said that there was no point in meeting
if BPH persisted in its
stance that no amount of negotiation and consultation could save the
derelict dwelling. The City made it
a precondition for further
discussion that BPH should agree in good faith to consider proposals
for Highclere’s conservation.
BPH’s response of 22 July
2015 was that the question of restoration was irrelevant because BPH
had no resources to do so.
BPH’s suggestion of a meeting
presupposed, it said, that the City would take ‘cognizance of
the realities of the situation’.
From the perspective of a
non-litigious resolution, this exchange of correspondence was hardly
encouraging. Indeed, it is difficult
to know what resolution BPH had
in mind at this stage, short of trying to persuade the City that
demolition was the only feasible
course, something the City showed no
signs of accepting.
[31]
The correspondence which
passed between the parties from August to October 2015 did not bring
them closer together. The last letter
in this sequence was the City’s
letter of 22 October 2015 to BPH’s attorneys, disagreeing that
its documentation failed
adequately to address the derelict state of
the dwelling. Nearly a month later, on 17 November 2015, there was a
meeting between
representatives of BPH and the City in what BPH
describes as a ‘last ditch effort’ to avoid a review
application. It
could have come as no surprise to BPH’s
representatives that the City maintained the position that
Highclere’s essence
still existed and that a ‘sympathetic
rehabilitation’ of the interior remained possible.
[32]
BPH’s attorney, who
met separately with the City, floated the idea of BPH’s
donating the property to the City. According
to the City’s
deponent, the attorney stated that no formal offer could be made
until the matter had been considered at BPH’s
board meeting in
December. BPH did not revert to the City. It thus seems that BPH did
not go into the meeting of 17 November 2015
with a mandated position
to resolve the issue on the basis of a donation. This was simply a
tentative idea which went nowhere.
[33]
There was no further
interaction between the parties until, about three and a half months
later, BPH issued its review application.
BPH claimed that this
further delay was caused by obtaining further expert reports which
came to hand on 8 February 2016. BPH does
not explain how further
expert reports could affect an enquiry into a decision made by the
IAT in October 2013 or when it commissioned
the reports. If BPH
thought that further expert reports were necessary, they should have
been sought in 2014 when it was threatening
review proceedings.
[34]
The last interaction
between BPH and HWC appears to have been in June 2015. Apart from
BPH’s attorneys’ letter to the
objectors’
consultant on 16 April 2014, BPH did not communicate with the
objectors. They were interested parties who would
have wished to
maintain the IAT’s decision. A case cannot sensibly be resolved
unless all interested parties are involved.
Endeavours to avoid
litigation may well in appropriate circumstances be grounds for
condoning non-compliance with the 180-day period
but such endeavours
must have a realistic and identifiable goal which will avoid
litigation; should involve all interested parties;
and must be
conducted with reasonable expedition.
[35]
In the light of this
discussion, I return to the relevant factors identified by Maya JA in
Aurecon
:
(i)
Nature of relief
sought
: BPH was seeking the setting aside of a decision reached
by an adjudicative body which had received evidence and heard
submissions.
Although BPH sought a substituted decision, the court a
quo remitted the matter to the IAT, which is the usual position in
the
absence of exceptional circumstances. BPH’s delay meant
that the IAT would be called upon to reconsider the matter three or
more years after it originally decided the case, by which time
memories would have dimmed. Since the IAT is an ad hoc body, there
might be difficulty in reassembling the panel. Witnesses and
representatives who were involved in the original hearing might no
longer be available.
(ii)
Extent and cause of
delay
: The delay was gross and wholly unjustified by the alleged
causes.
(iii)
Effect on
administration of justice and other litigants
: Apart from the
considerations alluded to in point (i), there is no evidence of
actual prejudice but that may be because objectors
who had an
interest in the IAT’s decision did not wish to become embroiled
in litigation so that their views are not now
before the court. For
reasons I have explained, the interests of finality loom large, even
in the absence of actual prejudice.
(iv)
Reasonableness of
explanation for delay
: The explanation is not reasonable and does
not cover the whole period. Even during phases of active
correspondence, BPH allowed
weeks to intervene from one step to the
next. The part of the founding affidavit which addresses condonation
is terse to a fault.
(v)
Importance of issues
to be raised
: The review does not raise any issues of general or
great importance. It concerns the IAT’s heritage assessment of
a single
seaside cottage, based on that structure’s particular
and unique attributes. Insofar as the IAT’s ‘recommendation’
and ‘advice’ are concerned, there is no legal dispute
between the parties as to the limited circumstances in which
a
compulsory restoration order can be issued. The matter may be
important to BPH but then it should have acted more promptly. And
if
subsequent developments justify demolition, BPH is not precluded from
submitting a fresh application. Indeed such an application
seems to
be pending. (This is not said by way of encouragement to BPH.)
(vi)
Prospects of
success
: We were not addressed at any length on the IAT’s
assessment of Highclere as having sufficient heritage significance to
make
demolition inappropriate. Although BPH’s submission was
that the IAT paid insufficient regard to the derelict state of the
cottage and to its evidence that restoration would result in a
‘replica’ rather than an authentic Cape vernacular beach
cottage, BPH’s counsel said that his main point was that the
‘advice’ (described, erroneously, as an ‘instruction’)
tainted the decision as a whole. Since the heritage authorities may
hereafter need to consider afresh the merits of the heritage
questions, it is undesirable to say more than that I am unpersuaded
that BPH has a particularly strong case for the review of the
IAT’s
decision on its merits, having regard to the material before the IAT
in October 2013. As to its decision being tainted
by the
‘recommendation’ and ‘advice’, BPH’s
prospects must be regarded as poor.
[36]
It follows that the court
a quo erred in finding that it was in the interests of justice to
extend the period for bringing the review
from 180 days to 852 days
(the period calculated by the parties and the court a quo). I would
thus make the following order:
(a) The appeal is upheld with
costs, including the costs of the application for leave to appeal in
the court a quo and the application
for leave to appeal brought in
the Supreme Court of Appeal.
(b) The order of the court a
quo is set aside and replaced with an order in the following terms:
‘
The application is
dismissed with costs.’
Ndita
J:
[37]
I concur and it is so
ordered.
Savage
J:
[38]
I concur.
________________________
Ndita
J
________________________
Rogers
J
________________________
Savage
J
APPEARANCES
For
Appellant
A
D Maher
Instructed
by
Neil
Barton Attorneys
Wynberg
c/o
Heyns & Partners
Cape
Town
For
Respondent
N
C de Jager
Instructed
by
Thomson
Wilks Inc
Cape
Town