Lind and Another v Trustees for the of the time being of The Indigo Trust (T3685/96) and Another (10072/2020; 6800/2021) [2021] ZAWCHC 97 (18 May 2021)

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[2021] ZAWCHC 97
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Lind and Another v Trustees for the of the time being of The Indigo Trust (T3685/96) and Another (10072/2020; 6800/2021) [2021] ZAWCHC 97 (18 May 2021)

Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case numbers: 10072/2020
and 6800/2021
Before: The Hon. Mr Justice Binns-Ward
Hearing:     4 May 2021
Judgment: 18 May 2021
In the
matter between:
JASON
BRETT LIND
First
Applicant
JULIA
JANE SCOTT
LIND
Second Applicant
and
THE
TRUSTEES FOR THE TIME BEING OF
THE
INDIGO TRUST
(T3685/96)
First
Respondent
THE
CITY OF CAPE TOWN
Second
Respondent
JUDGMENT
(Delivered by email to the parties’ legal representatives
and by release to SAFLII.
The judgment shall be deemed to have been handed down at 10h00 on
18 May 2021.)
BINNS-WARD J:
[1]
The applicants, who are the registered
owners of Erf 249 Sea Point East, have applied for the review and
setting aside of the decision
of the City of Cape Town on 31 January
2020 to approve building plans submitted by the owners of the
neighbouring property (the
trustees of the Indigo Trust) for the
erection of a dwelling house on Erf 251 Sea Point East.
[1]
Erf 249 is situate at 39 Upper Rhine Road and Erf 251 at 37 Upper
Rhine Road.  The applicants contend that a building
erected in
accordance with the building plans would not be compliant with the
applicable zoning regulations.
[2]
The impugned building plans were submitted
to the City in terms of s 4 of the National Building Regulations
and Building Standards
Act 103 of 1977 (‘the Building
Regulations Act’).  In terms of s 7(1) of that Act, a
local authority shall
approve a building plan application if it is
satisfied that the application complies with the requirements of the
Act and any other
applicable law;
aliter
if it is not so satisfied.
[3]
Both properties are zoned for single
residential use (‘SR1 Conventional Housing’) in terms of
the zoning scheme referred
to in Part 1 of Chapter 4 of the City of
Cape Town Municipal Planning By-law, 2015 (as amended).
[2]
It is common ground that the By-Law is ‘applicable law’
within the meaning of that expression in s 7(1)
of the Building
Regulations Act.  Zoning is directed at the regulation of land
use and development rights.  The use and
development regulation
provisions of the City’s zoning scheme are contained in the
‘development management scheme’,
which is Schedule 3 to
the By-Law.
[4]
The first issue to be considered is the
first respondent’s preliminary objection that the application
has not been brought
within a reasonable time, and should on that
account be dismissed irrespective of its possible substantive merit;
cf.
Wolgroeiers Afslaers (Edms) Bpk v
Munisipaliteit van Kaapstad
1978 (1) SA
13
(A).  The issue of unreasonable delay was addressed in
Wolgroeiers
case under the common law.  It was held that two questions are
potentially raised: first, whether there has been an unreasonable

delay (which a question of fact on which the court makes a value
judgment); second, if there has been such a delay, whether, in
the
interests of justice, it should be condoned (which is a matter to be
decided in the exercise court’s discretion).
[3]
[5]
The current application was brought in
terms of the Promotion of Administrative Justice Act 3 of 2000
(‘PAJA’), which
in large measure has codified the law in
respect of the judicial review of administrative decisions.  In
terms of s 7
of PAJA an application for the judicial review of
an administrative decision must be instituted without unreasonable
delay and
no later than 180 days after the date upon which the
impugned decision was made or upon which the applicant could
reasonably
have become aware of it.  The court is invested with
the power in terms of s 9 of PAJA on application to extend the
period
of 180 days referred to in s 7 if it would be in the
interests of justice to do so.
[6]
The current application was brought within
the 180 day period referred to in s 7 of PAJA, but the first
respondent contends
that it was neverthetheless unreasonably
delayed.  Section 9 of the Act therefore does not apply on
the facts, and it
is consequently necessary to identify the proper
approach to the adjudication of an application brought within the
statutory period
but alleged nevertheless to have been unreasonably
delayed.  Brand JA hinted at the answer in
Opposition
to Urban Tolling Alliance and Others v The South African National
Roads Agency Ltd and Others
[2013]
ZASCA 148
(9 October 2013);
[2013] 4 All SA 639
(SCA) at para 26,
saying ‘
At common law application
of the undue delay rule required a two stage enquiry. First, whether
there was an unreasonable delay and,
second, if so, whether the delay
should in all the circumstances be condoned (see eg
Associated
Institutions Pension Fund and others v Van Zyl and others
2005 (2) SA 302
(SCA) para 47). Up to a point, I think, s 7(1) of
PAJA requires the same two stage approach. The difference lies, as I
see it,
in the legislature’s determination of a delay exceeding
180 days as per se unreasonable.
’
Brand JA was treating of a case in which the application for review
had been brought outside the 180-day limit, but
I think it was
implicit in the learned judge’s remarks that he considered that
the common law principles would continue to
apply with regard to
delay in review proceedings instituted within the statutory period,
but nevertheless allegedly without the
required degree of
expedition.  In any event, counsel on both sides appeared to
agree with me in the course of argument that
that has to be the
indicated approach.
[7]
The applicants became aware of the building
plan approval on 17 February 2020.  It is not suggested that
they should reasonably
have learned of it any earlier.  The
review and attendant interim interdict applications were instituted
only on 29 July 2020.
The applicants have sought to explain
what on the face of matters would appear to have been an unreasonable
delay by pointing to
the generally dislocating effect of the national
Covid-19-related lockdown.  It is common knowledge that the
so-called ‘hard
lockdown’ obtained between 27 March
and the beginning of May 2020.  Lockdown measures were gradually
eased in the
period between late May and July.  The applicants
aver that the lockdown prejudiced their ability to liaise with their
town
planning expert witness and complicated the latter’s
ability to access the building plans and municipal records relating
to the building plan application.
[8]
I think that it would be unreasonable not
to allow, on account of the lockdown, that what appears to have been
a five-and-a-half-month
delay should in practical terms be treated as
if it were an approximately three-month delay.  It seems to me,
however, that
the application should reasonably have been instituted
within no more than two months of the applicant becoming aware of the
building
plan approval.  That would imply that that their expert
witness should have been timeously engaged to undertake the required

investigations at the local authority’s offices before the
advent of the hard lockdown.  Difficulties might thereafter
have
been experienced in obtaining the issue and service of the papers.
It should, however, have been possible to do that
by early June 2020
had the applicants acted with reasonable expedition during February
and March.
[9]
I would therefore uphold the first
respondent’s contention that the institution of the review
proceedings was unreasonably
delayed.
[10]
The principal reasons why delay is
stigmatised are the public interest in the finality of administrative
decision-making, the prejudice
to administrative decision-makers in
explaining their actions at a remove in time where memories have
faded and relevant records
might have gone astray, and the prejudice
occasioned to persons who may in the intervening period have ordered
their affairs based
on the impugned decision.  In the current
case the delay was by no means inordinate.  There is nothing to
suggest that
it caused any forensic prejudice.  It also appears
unlikely, due to the prevailing lockdown measures, that much in the
way
of building work could have (legally) taken place during the
period between the applicants first learning of the building plan
approval and the institution of the application.  The somewhat
limited prejudice occasioned by the delay means that it is the

prospects of the application’s success that weigh most heavily
in reckoning whether it would be in the interests of justice
to grant
condonation.  The importance of lawful administrative
decision-making in a constitutional order based on the rule
of law
should not be undervalued in the conspectus of considerations to
which regard should be had.  As much as there is a
public
interest in the finality of administrative decision-making, there is
also such an interest in the lawfulness of administrative
decisions.
For the reasons that follow, I consider that the review application
was well founded.  In all the circumstances
I therefore consider
that it would be in the interests of justice to condone the delay and
entertain the review.
[11]
At the heart of the applicants’
complaint is their allegation that the structure contemplated in
terms of the approved building
plans exceeds the maximum floor space
permitted in terms of the zoning scheme for a building on Erf 251; in
other words, that the
proposed building is larger than allowed and
that the relevant functionaries of the local authority erred in
failing to recognise
that.  An appreciation of the import of
various specially defined terms in the development management scheme
is required to
properly understand the gravamen of the complaint.
[12]
Item 1 of the development management
scheme includes the following pertinent definitions:
‘
maximum floor space
’
means the greatest total floor space that is allowed for a building
or buildings on a land unit, and is calculated by multiplying
the
floor factor by the area of the land unit or that portion of the land
unit which is situated within a particular zoning; provided
that ...;
‘
floor space
’
in relation to any building means the area of a floor which is
covered by a slab, roof or projection; provided that:
(a) any basement or part of a
basement not intended as habitable space shall be excluded;
(aA) any area which is reserved
solely for parking or loading of vehicles shall be excluded;
(b) external entrance steps and
landings, any canopy, any stoep and any area required for external
fire escapes shall be excluded;
(bA) portions of passages,
access ways and fire escapes up to 1,5m in width in a building on a
land unit with a zoning other than
Single Residential Zoning 1 and 2,
Community Zoning 1 and 2, Agricultural Zoning and Rural Zoning,
provided that they connect directly
from the fire escape, vertical
circulation to the entrance doors or both, shall be excluded;
(c) a projection including a
projection of eaves, and a projection which acts as a sunscreen or an
architectural feature, which
projection does not exceed 1 m beyond
the exterior wall or similar support, shall be excluded;
(d)  any uncovered internal
courtyard, lightwell or other uncovered shaft which has an area in
excess of 10 m
2
shall be excluded;
(e)  any covered paved area
outside and immediately adjoining a building at or below the ground
floor level, where such paved
area is part of a forecourt, yard,
external courtyard, pedestrian walkway, parking area or vehicular
access, and which is permanently
open to the elements on at least the
front or long side, shall be excluded;
(f)  any covered balcony,
verandah or terrace which, apart from protective railings, is
permanently open to the elements on
at least the front or long side,
and which does not exceed 2,5 m in width, shall be excluded;
(g)  subject to paragraph
(h) below, any stairs, stairwells and atriums that are covered by a
roof shall be included;
(h)  in the case of
multi-level buildings, any stairwells, liftwells, lightwells or other
wells, and any atrium, shall only
be counted once;
and provided further that floor
space shall be measured from the outer face of the exterior walls or
similar supports of such building,
and where the building consists of
more than one level, the total floor space shall be the sum of the
floor space of all the levels,
including that of basements;
‘
floor factor
’
means the factor (expressed as a proportion of 1) which is prescribed
for the calculation of maximum floor space of a building
or buildings
permissible on a land unit. If the floor factor is known, the maximum
permissible floor space can be calculated by
multiplying the floor
factor by the area of the land unit
‘
floor
’
means the inner, lower surface of a room, garage or basement, and
includes a terrace or atrium to which the occupants of
a building
have access;
‘
dwelling house’
means a building containing only one dwelling unit, together with
such outbuildings as are
ordinarily
used with a dwelling house, including domestic staff quarters
‘dwelling unit’ means a self-contained, interleading

group of rooms, with not more than one kitchen, used for the living
accommodation and housing of one family or a maximum of 5 transient

guests, together with such outbuildings as are ordinarily used
therewith, but does not include domestic staff quarters, or tourist

accommodation or accommodation used as part of a hotel
‘
dwelling unit
’
means a self-contained, interleading group of rooms, with not more
than one kitchen, used for the living accommodation and
housing of
one family or a maximum of 5 transient guests, together with such
outbuildings as are
ordinarily
used therewith, but does not include domestic staff quarters, or
tourist accommodation or accommodation used as part of a hotel
‘
domestic staff
quarters
’ means
an outbuilding which has a floor space of not more than 50 m
2
,
including sanitary and cooking facilities, and used for the
accommodation of domestic staff employed at the dwelling unit
concerned;
provided that:
(a) no more than one domestic
staff quarters is allowed on a land unit without the approval of the
City; and
(b) the domestic staff quarters
may only have its own individual section within a sectional title
scheme if it is legally tied to
the dwelling unit concerned;
‘
family
’
means:
(a)  one person maintaining
an independent household; or
(b)  two or more persons
related by blood, marriage or civil union maintaining a common
household; or
(c)  not more than five
unrelated persons without dependants maintaining a common household;
but does not exclude up to six
foster children, or dependants under
legal guardianship as part of a household
‘
garage
’
means a building for the storage of one or more motor vehicles, and
includes a carport but does not include a motor repair
garage or
service station
‘
outbuilding
’
means a structure, whether attached or separate from another
structure on a land unit,
ordinarily
used in connection with the lawfully permitted uses on a land unit
‘
building
’
is defined, without prejudice to the ordinary meaning of the word, to
include ‘any ... portion of a building’.
‘
parking bay
’
means an area measuring not less than 5 m by 2,5 m for perpendicular
or angled parking and 6 m by 2,5 m for parallel parking,
which is
clearly identified, demarcated and accessible for the parking of one
motor vehicle and may be provided in the form of
a garage or carport.
I have
included the definition of ‘
family
’ because it is
relevant to the consideration of acceptable size and scale in the
application of the development management
scheme provisions.
‘
Garage
’ is relevant because it is a facility that
may be part of a dwelling house or housed in an ‘outbuilding’.

An ‘
outbuilding
’ may be a separate structure or
part of another structure.  It is significant that an
‘outbuilding’ is permitted
for uses ‘
ordinarily
used in connection with the lawfully permitted uses on a land unit
’,
such as garaging in the case of a land unit for single residential
use.  When it comes to garaging there is no basis
in the scheme
to distinguish the extent thereof the might reasonably be provided
for in an outbuilding on a single residential
land unit from that
provided as integral part of the dwelling house.  I shall
further discuss the contextually significant
import of the cited
terms later in this judgment.
[4]
[13]
It is also relevant, for reasons which will become apparent, to
have
regard to certain of the provisions of the parking requirements
prescribed in Chapter 15 of the development management scheme.

In terms of item 141(1)(a) of the scheme ‘
Parking
layout configuration, minimum dimensions and ramps to a parking area
shall be in accordance with the provisions of this
development
management scheme or an approved site development plan
’.
Item 141(f) prescribes that ‘
Parking areas shall be
constructed and maintained in a state suitable for the parking and
movement of vehicles
’.  The term ‘parking area’
is not defined.  Its ordinary meaning would denote any space
intended for
the parking of vehicles.  In terms of item 141(2)
and (3), the City may require a parking layout plan to be submitted,

indicating the way in which it is intended that motor vehicles shall
park, the means of entrance and exit, landscaping proposals,
and
construction details and may approve or refuse the parking layout
plan and impose conditions of approval.  Item 138

prescribes that a minimum of two off-street parking bays must be
provided per main dwelling unit on land zoned for single residential

use (Zoning SR1).  It does not seem to matter whether the
required off-street parking is provided in a garage or by way of

outdoor spaces.
[14]
Erf 251 is 429m
2
in extent.  The applicable
‘floor factor’ in terms of the zoning scheme is 1.
In the result, the total permitted
‘maximum floor space’
in building development on the erf is also 429m
2
.
The approved plans depict a building with an actual floor area of
1006m
2
before deduction of the floor areas that fall to be excluded from the
calculation by virtue of paragraphs (a) to (h) of the definition
of
‘floor space’.  In terms of the plans submitted by
the first respondent in July 2018 most of a 227m
2
area on the ground floor of the proposed single dwelling house was
designated as ‘garage’, but the greater part of
the area
was re-designated as ‘storage’ in revisions to the plan
made in October 2019.  The applicant’s
complaint arises
out of the exclusion of most of this floor area from the calculation
of the building’s floor space.
[15]
The plans submitted in July 2018 were endorsed by the City’s

Land Use Management Section as compliant with the development
management scheme, but the City’s Transport Department appears

to have found them problematic.  The precise basis of the
Transport Department’s difficulty with the plans is not clear

on the papers.  It is unfortunate that the City did not file a
report to clarify the position, but perhaps, having elected
to abide
the judgment of the court, the City was unaware of what became the
focus of the proceedings insofar as the substantive
issues were
concerned.
[16]
It appears from the evidence of Mr Karl Markwald, who represented
the
owners of Erf 251, that the City’s transport officials
were concerned about how the designated garage area would
work in
practical terms with regard to the ingress and egress of vehicles on
a daily use basis.  It seems probable in the
circumstances that
considerations of the provided for in item 141 of the development
management scheme must have informed the concerns
that were raised.
The officials were reportedly informed that most of the vehicles that
it was intended to keep in the garage
space would not be used on a
daily basis and would merely be stored there.  Mr Markwald
has indicated that the vehicles
that it is intended to store in the
ground floor space are two sedan motor cars, a VW minibus, a personal
trailer, a large farm
bed trailer, a motor cycle, two quadbikes and a
large quadbike trailer.
[17]
The aforementioned re-designation of the
greater part of the area originally labelled as ‘garage’
on the submitted plans
as ‘storage’ was reportedly to
address the difficulty raised by the Transport Department.  It
is notable that
the pictorial representation on the plan of a number
of motor vehicles in parked positions in the area hitherto labelled
as ‘garage’
was also erased from areas re-designated as
‘storage’.  It is the contention of the first
respondent, however,
that the relabelling was of no consequence and
would make no difference to the intended use of the space.  The
approach of
the City’s Land Use Management Section appears to
endorse the first respondent’s contention.  Its reports
refer
to the space as ‘garage and storage’ and treated
the space so labelled indiscriminately as ‘garage’ (or

‘floor space’ within the meaning of paragraph (aA) of the
special definition of that concept) for the purposes of assessing
the
compliance of the proposed structure with the prescribed ‘maximum
floor space’.  The Land Use Management Section
also
treated a space on the ground floor plans consistently designated as
‘service equipment area’ as part of the garage
area.
Neither the building control officer (charged with making a
recommendation to the local authority in terms of s 6(1)(a)
of
the Building Regulations Act), nor the municipal official who
approved the plans under delegated authority appears to have
considered the redesignation of the greater part of the garage space
as storage areas to be significant, or to have been astute
to the
irreconcilable difference between a ‘service equipment area’
and one reserved exclusively for the parking of
vehicles.
[18]
The applicants’ complaint in this
regard is two-fold.  Firstly, they point out that a garage is
specially defined in
terms of the development management scheme and,
in its defined sense, is, by virtue of paragraph (aA) thereof, one of
the types
of area excluded in the definition of ‘floor space’
from the calculation of the ‘maximum floor space’
permitted
in any building development on the erf.  There is, in
contrast, no definition of ‘storage area’ in the scheme
and the ordinary connotation of the term is not confined to the
storage of motor vehicles.  They point out furthermore that
in
any event a ‘service equipment area’ is irreconcilable
with the defined meaning of ‘garage’.  Secondly,

they contend that the extent of the space involved is markedly
disproportionate in respect of the reasonable provisioning of garage

space for a single residential building on Erf 251.  It is
evident that the applicants suspect that the area has been
labelled
as garage space merely to obtain the approval of a building with a
much greater floor space than permitted in terms of
the zoning scheme
with the intention that much of the area designated as garage space
can be used for other purposes after the
building has been
completed.  In this regard, the applicants fear that the first
respondent will be able at that stage to
obtain departures from the
zoning scheme to reconfigure the designated garage space and the void
below the currently indicated
ground floor for other purposes and
that it will be able to motivate the grant of such departures on the
basis that they will not
affect the external extent of the (then)
completed structure and therefore would be seen as not being
prejudicial to the neighbouring
properties because the size and bulk
of the structure would already be established.
[19]
In my judgment, there is merit in both
grounds of complaint.
[20]
It is obviously important that building
plans submitted for approval in terms of the Building Regulation Act
should speak for themselves.
In the vast majority of cases the
two most important considerations in the assessment of such plans in
terms of s 7(1)(a)
of the Act for the purposes of legal
compliance are compliance with the National Building Regulations and
compliance with the land
use and development restrictions in terms of
the applicable zoning scheme.  The assessment must be objective
in nature if
the purpose of the legislation is to be achieved.  The
legal compliance (or lack thereof) of the building plan application

must be apparent not only to the officials or body charged with
undertaking the assessment, but equally so to any other informed

person (including a court) reviewing the plans.  Self-evidently,
that cannot happen unless the plans accurately reflect not
only the
dimensions but also the intended usage of the components of the
contemplated building that they purport to depict.
[21]
Accordingly - and especially in a context
in which the term ‘garage’ has a specially defined
meaning that bears with
it, by virtue of paragraph (aA) of the
definition of ‘
floor space
’,
a material effect on the interpretation of the plan - a plan that
expressly divides a depicted floor area between garage
space and
differentiated use areas cannot competently be interpreted in a way
that treats the entire area as a garage.  The
term ‘storage’
covers any number of possible uses quite distinguishable from the
parking of vehicles.  A ‘service
equipment area’ is
in its own terms something different from an area for the parking of
vehicles.  One does not in ordinary
language usage refer to
vehicles as ‘equipment’.
[22]
In the current case, as the applicants’
counsel stressed in argument, the service equipment area alone takes
the proposed
structure materially above the permitted maximum floor
space when it is acknowledged, as it should have been, that it does
not
form part of the floor area depicted as garage on any version of
the approved plans.  The extent of the deviation is greatly

exacerbated when regard is had to the other parts of the 227m
2
floor space labelled as ‘storage’ that the City’s
officials treated as ‘garage’.
[23]
Properly interpreted, the approved building
plans depict an intended building that exceeds the maximum floor
space permitted in
terms of the zoning scheme by a large measure.
In the circumstances the City was bound, in terms of s 7(1)(b)(i)
of
the Building Regulations Act, to refuse the building plan
application.  Its decision to instead grant the application was
consequently unlawful, and falls to be reviewed and set aside.
[24]
In the light of that conclusion it is
strictly unnecessary to deal with the applicants’ second ground
of complaint.  But
for two reasons it might nevertheless be
helpful to do so.  Firstly, if this matter were taken further on
appeal and a finding
made that my conclusion on the first basis for
review was wrong, then it would be useful for this court’s
finding on the
second basis to be known to avoid any prospect of a
remittal of the application for further consideration at first
instance.
Secondly, and especially in the context of the
drawn-out history of litigation regarding the series of building plan
applications
in respect of the development of Erf 251, the
court’s findings on the second basis for review might conduce
to desirable
finality and the avoidance of further litigation.
[5]
[25]
The second ground of the applicants’
complaint is that the City should not have accepted the indication of
227m
2
of
garage space originally indicated on the plans at face value because
that amount of garage floor space was contextually disproportionate

and far beyond what a single-family would ordinarily require.
The complaint falls to be assessed with reference to the 1006m
2
total actual floor space in the proposed building relative to the
429m
2
maximum
(defined) floor space permitted in terms of the development
management.
[26]
The City must have approved the building
plans accepting that the excess of the floor factor by more than
double was allowable by
virtue of the exclusions from the calculation
of ‘floor space’ provided in the definition of that term
in the development
management scheme (quoted above).  There is
nothing in the reports of the Land Use Management Section, the
building control
officer or the functionary who approved the plans to
suggest that any consideration was given to the apparently
disproportionate
extent of floor space given over to features of the
structure that nominally qualified for exclusion from the floor space
calculation.
The impression is that a mechanical approach was
adopted in the evaluation.  Such an approach would not have been
appropriate
because it would give the definition of ‘floor
space’, read in isolation, an independently operative function
without
proper regard to the contextual significance of the
exclusions listed in it.
[27]
As with any legislation, the by-law, and
the development management scheme as part of it, fall to be construed
contextually.
The wording of the provisions should be
interpreted congruously with the apparent scope and objects of the
law; see
Cool Ideas 1186 CC v Hubbard
and Another
2014 (4) SA 474
(CC) at
para 28.
[6]
[28]
The object of zoning has been described
consistently in the jurisprudence and by the academic commentators as
directed at the coordinated
and harmonious use and development of
land; cf.
Johannesburg Turnbull-Jackson
v Hibiscus Coast Municipality
2014 (6)
SA 592
(CC)
(2014 (11) BCLR 1310
;
[2014] ZACC 24
at para 6,
Municipality v Gauteng Development
Tribunal and Others
2010 (2) SA 552
(SCA) at para 6,
Broadway Mansions (Pty)
Ltd v Pretoria City Council
1955 (1) SA
517
(A) at 523B,
Cape Town City and
Another v Da Cruz and Another
2018 (3)
SA 462
(WCC) at para 80,
Da Cruz and
Another v City of Cape Town and Another v City of Cape Town and
Another
2017 (4) SA 117
(WCC) at para
45,
Camps Bay Residents and Ratepayers
Association and Others v Hartley and Others
[2010]
ZAWCHC 215
(16 November 2010) at para 23,
Esterhuyse
v Jan Jooste Family Trust
1998 (4) SA
241
(C) at 253H-I and Jeannie van Wyk,
Open-space
systems
in
urban land-use planning: invaluable
assets in conserving the environment and enhancing the quality of
life
2005 TSAR 256
at 260 at §4
(citing Van Wyk
Planning Law
(1999)
30-35).  That much has also been expressly been recognised in
various legislative equivalents of the By-Law, some of
which are
identified in the aforementioned judgments.
[29]
The object of the legislation cannot be
achieved if the provisions of the development management scheme are
not interpreted and
applied contextually.  A mechanical
application of individual provisions of the scheme with inadequate
regard to how they
fit contextually into the wider framework will
inevitably result in the objects of the legislation being subverted.
[30]
It is evident, if regard is had to the
exclusions itemised in paragraphs (a) to (h) of the definition of
‘
floor space
’,
that they all relate to incidental features of a building.  In
respect of some of them, their incidental character
is underscored by
the expressly provided limitation of their dimensions if they are to
qualify for exclusion.  Thus, in respect
of balconies and
verandas the exclusion applies so long as they do not exceed 2,5 m in
width.  A projection is excluded so
long as it does not project
more than 1 m.
[31]
The definition of ‘
floor
space
’ read as a whole begs the
question whether the exclusion in paragraph (aA), viz. ‘
any
area which is reserved solely for parking or loading of vehicles
shall be excluded
’ should be read
literally to imply an area without any limitation of extent.
[7]
If that were the case, one could conceivably provide for a structure
that was principally given over to the parking and loading
of
vehicles with the dwelling house part occupying a relatively small
part of the building; a situation at odds with the concept
of single
residential zoning evident upon a contextual reading of the scheme’s
provisions.  Such a building could also
push up the effective
floor factor well above that contemplated for a normal dwelling
house, which is the primary use permitted
for land zoned single
residential (Conventional Housing) SR1.  Such a building might
well fall within the permissible maximum
floor space parameters on a
mechanical application of the definition of ‘
floor
space’
, but it would not be a
normal (or ‘conventional’) single family dwelling house.
It would result in a garage –
whether such were contained in
the dwelling house or an outbuilding is not material – of much
greater proportions than would
ordinarily
be used in a dwelling house for a single-family.
[32]
On a plot subject to a floor factor of 1, a
building plan providing for proportionately excessive space for the
storage and loading
of vehicles could easily posit an edifice of
greater bulk than the zoning provisions, considered purposively, were
intended to
permit.  The effect of extensive garaging facilities
in a building erected on a large erf on the other hand might not have

a comparatively intrusive effect on the neighbourhood.  The
postulate highlights the need for a sensitively contextual
application
of the zoning scheme regulations if their clearly
intended purpose is to be achieved.  (The cogency of the
illustrative example
is supported by the fact that a ‘floor
factor’ restriction in respect of the primary use of property
zoned as single
residential (SR1) applies only in respect of erven
less than 650m
2
in extent.)  The zoning scheme vests a discretion in the local
authority.  It is called upon to exercise a value judgment,
but
the exercise of the discretion that is involved in making the
judgment must be informed by a properly informed application
of the
scheme.
[33]
The discernible intention of the
development management scheme is an important consideration in the
proper application of the regulations.
That is expressly
acknowledged in item 6 of the scheme, which provides:
Evasion
of intent of the development management scheme
The
City may refuse any application in terms of this By-Law if it
considers such application to constitute or facilitate an evasion
of
the intent of this development management scheme or any of its
provisions.
It is
plain that the word ‘
may
’
in the given context should be construed in a peremptory sense, for
any application that constitutes or facilitates an evasion
of the
scheme is effectively non-compliant with or inimical to the scheme
and could not competently be approved if the purpose
of the scheme is
to be respected, which the relevant authorities are bound to do.
[8]
[34]
A contextually appropriate application of
the zoning scheme requires the local authority to accord due weight
in its consideration
of a building plan to whether the proposed
structure would, if constructed on land zoned single residential SR1,
represent a single-family
dwelling house.  Attention should be
paid to the general description of the intention behind the single
residential (SR1)
zoning in the introduction to Chapter 5 of the
development management scheme: ‘
The single
residential zonings are designed to provide locations for
predominantly single-family dwelling houses in low- to medium-density

neighbourhoods, with a safe and pleasant living environment
’.
The quoted wording is given in italic font in the development
management scheme.  Item 2 of the scheme provides
‘
A
sentence in italics is for guidance and should be regarded as not
forming part of this development management scheme
.’
The clear intention, however, is that the guidance should be
followed in applying the scheme.  There would otherwise
be no
purpose served by providing it.  In the case of single
residential (SR1) zoning the guidance merely serves to emphasise
the
material import of Chapter 5 that is rendered in ordinary font and
accordingly unambiguously part of its operative provisions.
[35]
‘How conventional is a 227m
2
(non-basement) garage
in a single-family dwelling house to be constructed on a 429m
2
land unit?’ one might ask.  Is a facility of that size one
that would ordinarily be used for a single-family dwelling
house?
It is not for this court in these proceedings to answer the question,
which is why I would be unwilling to consider
the substitutive order
contingently sought by the first respondent in the event of the
review succeeding.  It is, however,
a question squarely raised
in the applicants’ objection.  They contend for a negative
answer on the basis that the proposal
is inconsistent with the
intended parameters of single residential (SR1) development in terms
of the scheme, which contemplates
a dwelling house and associated
amenities for a single family.  It is recognisably the
applicants’ contention that the
question is one that the local
authority does not appear to have asked itself in its consideration
of the first respondent’s
building plan application.
[9]
This amounts in effect to a contention that the decision to approve
the building plans was the result of a failure by the
City’s
officials to consider relevant considerations.
[10]
[36]
That there is substance in the applicants’ contention is
supported by the absence of any evidence in the reports rendered by
the various local authority officials who processed and finally

approved the building application that consideration was given to
what on the face of it appears to be a disproportionately large
area
of garage space in the building.  Indeed, on a proper
application of the provisions of the development management scheme,
I
would have expected to find reasoned consideration given to the fact
that the submitted building plans propose a structure in
which the
floor area of the incidental features excluded from the definition of
‘
floor space
’ exceed the total extent of the floor
space of the principal features of the proposed dwelling house that
are cognisable
for the determination of compliance with the
restrictions on ‘
maximum floor space
’.
[37]
The applicants expanded on their contention
that the City’s officials had not properly applied their minds
to the building
plan application by reference to the building control
officer’s report dated 30 January 2020, in which the officer
appears
to have accepted without comment the Land Use Management
Section’s observation that ‘
it
is important to remember that this building plan is for internal
alterations and additions to an approved dwelling house as per
the
2012 approved plan
’.  The
observation was manifestly incorrect because it is evident that the
building plan application approved in January
2020 provided for a
materially larger building footprint than that represented in the
building plans approved in 2012.  Part
of the increased
footprint was represented by an increase in size of the contentious
garage/storage area.
[38]
It is evident from his report that the
building control officer must have had regard to the earlier (2018)
iteration of the submitted
building plan application but his report
did not contain any discussion on the garage issue that had
necessitated the relabelling
as ‘storage space’ of a
large amount of floor space previously indicated as ‘garage’.
This strongly
suggests that the building control officer cannot have
applied his mind to the ‘maximum floor space’
prescriptions
for building development on the erf.  On the
contrary, it would appear that he unquestioningly adopted the
misdirected opinion
of the Land Use Management Section as to the
compliance of the building plans with the prescripts of the
development management
scheme (to which he referred in his
conclusions as ‘the Town Planning Scheme Regulations’).
Had he properly applied
his mind to the relevant considerations he
would not have made the error.
[39]
The building plans were approved by the
Section Head: Building Development, Table Bay District on the day
after the building control
officer made his report.  In the
Section Head’s internal memorandum, dated 31 January 2020,
minuting the building plan
approval, he stated:
‘
The
proposal is Zoning compliant and there was therefore no formal land
use process, but I am satisfied that the Land Use Department
applied
their mind properly to the application.
Having
assessed the plans and having had regard to all other documentation,
I concur with the BCO and I am positively satisfied
that the
application complies with all other applicable law.
I
have engaged with the building control officer and all other relevant
officials regarding the building plan evaluation process
on a regular
basis and over a period of time and is (sic) satisfied that the
application has been thoroughly considered and that
all the necessary
factors have been taken into account.’
[40]
It is clear, for the reasons discussed
above, that the functionary who approved the plans with delegated
authority from the City
also cannot properly have applied his mind to
all the relevant considerations. Alternatively, he misapprehended the
import of the
pertinent provisions of the development management
scheme.
[41]
Ordinarily, where it is apparent on
judicial review that a building plan application is not compliant
with the zoning scheme no
purpose is served by remitting it to the
local authority because the refusal of the application would be a
foregone conclusion.
In the current case, however, the first
respondent has sought - were the review to succeed, as it has - the
remittal of the application
on the grounds that the amendment of the
approved plans to designate most of what the trustees intended to be
garage space as ‘storage
area’ was at the instance of the
local authority’s officials.  The first respondent asserts
that the Trust is
entitled to a reassessment of its building
application on the basis that the areas it originally depicted as
garage space be considered
as such, rather than as ‘storage
space’.  The first respondent appears to believe that it
could obtain approval
of the plans on that basis if the local
authority were persuaded to accept all the floor space indicated on
the plans as ‘garage’
as excluded from the ‘maximum
floor space’ by reason of paragraph (aA) of the definition of
‘floor factor’.
It seems to me that a remittal on
that basis would still leave the first respondent with the problem of
the excess floor space
represented by the area designated on those
plans as ‘service equipment area’, but that is a matter
for the City, rather
than the court, to address if there is a
remittal.
[42]
The first respondent has also requested
that in remitting the building plan application the court should
direct that the application
be decided by the local authority in
terms of the provisions of development management scheme as they
stood prior to the amendments
thereto effected in September 2019.
The first respondent fears that if the plans were to be reconsidered
in terms of the
currently applicable scheme provisions, they could
not be approved, and demolition of part of the already completed
building work
might be necessitated to allow for a structure that
would be zoning scheme compliant.
[43]
The circumstances in which the building
plan notations were changed from ‘garage’ to ‘storage’
are by no
means clear.  I am therefore not able to determine
that when the amendments were made it was understood by the City that
they
reflected no change in intended usage of the space concerned by
the building plan applicant.  Without clarity on that point,
I
am unwilling to give any direction as to whether the plans should be
reconsidered in terms of the development management scheme
as it was
prior to its recent amendment or as to whether the building plan
application should be reconsidered in its originally
submitted or its
altered form.  The applicable law is objectively determined, and
not a matter susceptible to alteration by
a court.  The first
respondent would obviously be entitled to a reconsideration of its
application in terms of the law applying
when the application was
submitted to the local authority.
[11]
It is for the respondents to sort out which of the iterations of the
application it is that legitimately falls to be decided
on
reconsideration.  Their determination in this regard will
obviously have to be one that is objectively defensible on the

applicable facts if it is to bear scrutiny.  Needless to say it
would be desirable for the City or the first respondent to
give the
applicants notice of the iteration of the building plans that are
being reconsidered before any new decision is made.
[44]
To sum up on this aspect, all that I am
willing to do to accommodate the first respondent’s contentions
and concerns is to
refrain from making a substitutive order refusing
the building plan application, and instead remit it for
reconsideration by the
City in the light of this judgment.
[45]
Finally, it remains to determine an
application brought by the applicants (under case no. 6800/2021)
for an order holding Mr
Markwald to have been in contempt of an order
of this court granted on 20 August 2020 at an early stage of the
judicial review
proceedings, and imposing an appropriate sanction.
The order was taken by agreement between the parties in the unopposed
motion court.  It prohibited the first respondent from carrying
out any further building work at Erf 251 pending the determination
of
the review application except for certain specified items, which
included the demolition of free standing columns.
[46]
It is common ground that in mid-April 2021
Mr Markwald, apparently acting for the first respondent, caused a
wall that divided part
of the floor area designated on the building
plans as garage or storage space from the rest of the open plan area
that the first
respondent averred in its answering papers in the
review application was to be used for garaging space to be
demolished.
The demolition was in clear breach of the terms of
the court order.  The applicant sought to hold Mr Markwald
liable for contempt
of the order agreed to by the Trust applying the
rules of attribution well-known in the realm of company law; cf.
Els
v Weideman and Others
2011 (2) SA 126
(SCA) and
Twentieth Century Fox Film
Corporation and Others v Playboy Films (Pty) Ltd and Another
1978 (3) SA 202
(W).
[47]
Mr Markwald delivered an answering
affidavit in which he averred that he had not seen a copy of the
court order, but that his understanding
of the interim settlement to
which it was intended to give effect had been that the order would
relate to ‘
works comprising
elements of the proposed dwelling house on the property, not
temporary structures such as site offices and facilities
or
protection and security measures and barriers, which would be
necessary on the site … if it was to be closed down as

agreed
’.  He explained that
the wall in question, which did not appear on the approved building
plans, had been erected as
a temporary measure to prevent trespassing
by vagrants and undesirable elements in the area.  He itemised a
number of other
areas of the building site that had also been sealed
or fenced off for that purpose.  He stated that the temporary
wall had
been removed in mid-April because he wished to be able to
demonstrate to the court at an inspection in loco ‘
the
vehicle and parking and vehicle storage layout as intended and
envisaged for the garage which
[he]
thought to do by way of “mock-ups”
of the vehicles in order to give proper perspective of the use of the
garage for
parking and storage of the vehicles and the movement of
vehicles therein
’.  He
denied that he had acted in wilful contempt of the court’s
order.
[48]
It bears recording that the first
respondent had indicated in its answering papers in the review
application that it would be seeking
to prevail on the court to
undertake an inspection in loco.  Such an inspection actually
occurred, and it was noted that various
to-size cut-out
representations of the various vehicles that it had been alleged
would be stored in the garage/storage space were
laid out on the
floor to try to illustrate how the first respondent intended to use
the area.
[49]
The principles applicable in the
adjudication of contempt of court applications in the
post-Constitutional era have been distilled
and rehearsed by the
Constitutional Court in at least two recent decisions,
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
2018 (1) SA 1 (CC)
[12]
and
Pheko and Others v Ekurhuleni City
2015 (5) SA 600 (CC),
[13]
and it would therefore be a supererogation to re-traverse them here.
The Constitutional Court endorsed the approach applied
in the
majority judgment of the appeal court in
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA).  The remedy sought by the applicants is that a fine
be imposed on Mr Markwald.  In the circumstances the criminal

standard of proof applies.
[50]
I do not think that the applicants have
satisfied the requirement of proving that the terms of the order were
brought to Mr Markwald’s
notice, although it is arguable that
as the Trust was party to it being taken by agreement that was not
necessary.  It is
also, and in any event, not possible to find
on the papers that Mr Markwald, representing the Trust, acted mala
fide with the intention
of contravening the order.  His
explanation for his actions cannot be rejected out of hand as
far-fetched and untenable.
The contempt application will
therefore be dismissed.
[51]
I do not intend to make any order as to
costs in respect of the contempt application.  It was not
unreasonable of the applicants
to have brought it; and whilst I
accept that Mr Markwald acted in ignorance of the terms of the court
order, I consider that it
was cavalier of him to have done so without
apprising himself of its provisions.  The order was, as
mentioned, made by agreement
between the applicants and the Indigo
Trust of which he is a trustee.
[52]
Costs in the review application will follow
the result.  It is necessary, however, to mention that after the
hearing the applicants
delivered an affidavit deposed to by a
transport engineer in an endeavour to prove that the garage layout
shown in the building
plan application submitted by the first
respondent in 2018 would not have been acceptable to the City.
The issue arose because
the applicants had in their supporting
affidavits suggested that the layout was not compliant with the
City’s parking policy.
At the hearing I asked counsel to
provide me with particulars of the adoption and publication of the
alleged policy.  Their
enquiries established that a policy had
not been formally adopted.  The affidavit that the applicants
sought to have admitted
out of time offered evidence that the City
did nonetheless in practice apply certain externally determined
engineering standards.
The applicants did not formally apply
for the admission of the affidavit.  They merely asked me to
give directions concerning
its admission.  The first
respondent’s counsel thereafter filed a note recording the
first respondent’s objection
to the admission of the affidavit
and stating the grounds for it.  In my view there was inadequate
reason to allow the affidavit
in out of time and counsel were advised
of my decision in that regard by email last week.  Any costs
incurred attendant on
the attempt to obtain the admission of the
affidavit shall be borne by the applicants.
[53]
The following orders are made:
(a)
In
case no. 10072/2020 (the judicial review application)
:
(i)
The decision of the City of Cape Town,
dated 31 January 2020, to approve the building plan application
submitted by the first respondent
for the construction of a dwelling
house on Erf 251 Sea Point East is hereby reviewed and set aside.
(ii)
The building plan application submitted by
the first respondent is remitted to the City of Cape Town for
reconsideration in the
light of the judgment in WCC case no.
10072/2020, dated 18 May 2021.
(iii)
Save in respect of the costs referred to in
paragraph (iv) below, the first respondent shall be liable to pay the
applicants’
costs of suit, including the costs in respect of
the first respondent’s application for condonation, dated
13 February
2021, and the qualifying fees of the applicants’
expert witness, Mr Brummer.
(iv)
The applicants shall be liable jointly and
severally, the one paying the other being absolved, for the costs
incurred by the first
respondent in respect of the attempt by the
applicants to obtain the admission out of time of the affidavit
concerning the parking
standards allegedly applied by the second
respondent.
(b)
In
case no. 6800/2021 (the contempt of court application)
:
The application is dismissed, with no order made as to costs.
A.G. BINNS-WARD
Judge of the High Court
APPEARANCES
Applicants’ counsel:

D.W. Baguley
Applicants’
attorneys:

Slabbert Venter Yanoutsos Inc.
Wynberg
First
respondent’s counsel:

I.C. Bremridge SC
First
respondent’s attorneys:
KJ
Bredenkamp Attorneys
Cape Town
[1]
The first respondent’s property is
sometimes incorrectly described in the applicants’ founding
papers as Erf 215.
[2]
The text of the By-law can be accessed online at
https://resource.capetown.gov.za/documentcentre/Documents/Bylaws%20and%20policies/Municipal_Planning_Amendment_Bylaw_2019_Consolidated.pdf
(last accessed on 15 May 2021).
[3]
See also (amongst others)
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie
1986
(2) SA 57
(A) at 86D-87A,
Gqwetha v
Transkei Development Corporation Ltd and Others
[2005] ZASCA 51
;
2006 (2) SA 603
(SCA);
[2006] 3 All SA 245
SCA) at
para 22-33 and
Khumalo and Another v
MEC for Education, KwaZulu-Natal
2014
(5) SA 579
(CC) at para 39-57.  The suggestion in para 34 of
Gqwetha
that the prospects on the merits of the review application are not a
material consideration in the exercise of the court’s

discretion to condone an unreasonable delay in bringing it was
disapproved by the Constitutional Court in
Khumalo
.
[4]
Underlining supplied for emphasis.
[5]
Building plans for the erection of a new house on
Erf 251 were originally submitted in 2012.  Construction
commenced in 2013,
but was interrupted when amending plans approved
by the City in 2014 were taken on review by the applicants and set
aside in
2017.  The current building plan application was
submitted in July 2018 and the building work subsequently undertaken
in
accordance with the plans was stopped in 2019 after a further
interdict application was launched by the applicants.  The
plans were thereafter revised in October 2019 after a meeting
between Mr Markwald and representatives of the City’s
Transport
Department in September 2019.  As indicated in the
body of this judgment, the revised plans were approved on 31 January

2020.
[6]
Where Majiedt AJ wrote ‘
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
riders to this general principle, namely:
(a)
that statutory provisions should
always be interpreted purposively;
(b)
that the relevant statutory
provision must be properly contextualized; and
(c)
all statutes must be interpreted
consistently with the Constitution, that is where reasonably
possible, legislative provisions
ought to be interpreted to preserve
their constitutional validity.  This proviso is closely related
to the purposive approach
referred to in (a).
’
(Footnotes omitted.)
[7]
Although the word ‘
shall
’,
when used in legislation, generally implies an imperative or
peremptory effect, it is not unusual to encounter instances
where is
permissive or directory; see e.g.
Motloung
and Another v Sheriff, Pretoria East and Others
2020
(5) SA 123
(SCA) at para 11, with reference to the locus classicus
on the applicable principles:
Sutter v
Scheepers
1932 AD 165
at 173-174.
In the context currently under consideration, it is plain, on a
purposive interpretation of the development
management scheme, that
the City is not obliged to exclude any of the features (or any part
thereof) in paragraphs (a)-(h) of
the definition of ‘
floor
space
’ if doing so would result
in the approval of a structure that would be incongruent with the
object of the zoning regulations.
[8]
Cf. e.g.
CIR v King
1947 (2) SA 196
(A) at 209-210,
Van
Rooyen and Others v The State and Others (GCB of SA intervening)
2002 (5) SA 246
(CC) at para 181-182 and footnote 163, and
Botha
and Another v Rich and Others
2014 (4)
SA 124
(CC) at para 35 and footnotes 50 and 51.
[9]
The deponent to the applicants’ founding
affidavit declaimed (in para 34) ‘
It
is, of course, astounding that anyone should claim to have a garage
of 227m
2
,
which is larger than the average house
’.
[10]
Section 6(2)(e)(iii) of PAJA.
[11]
Section 142(9) of the Municipal Planning By-law
(which was inserted in terms of the 2019 amendments to the
instrument) seems to
me to restate the applicable common law
principle in this regard.
[12]
At para 46 – 67.
[13]
At para 25 – 37.