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[2016] ZASCA 136
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Gees v Provincial Minister of Cultural affairs and Sport, Western Cape and Others (974/2015) [2016] ZASCA 136; 2017 (1) SA 1 (SCA) (29 September 2016)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No:
974/2015
In
the matter between:
PETER
GEES
APPELLANT
and
THE
PROVINCIAL MINISTER OF CULTURAL
AFFAIRS
AND SPORT, WESTERN CAPE
FIRST
RESPONDENT
THE
CHAIRPERSON, INDEPENDENT
APPEAL
TRIBUNAL
SECOND
RESPONDENT
HERITAGE
WESTERN CAPE
THIRD
RESPONDENT
THE
CITY OF CAPE
TOWN
FOURTH RESPONDENT
CITY
BOWL RATEPAYERS’ AND
RESIDENTS’
ASSOCIATION
FIFTH RESPONDENT
Neutral
citation:
Gees
v The Provincial Minister of Cultural Affairs and Sport
(974/2015)
[2015] ZASCA 136
(29 September 2016)
Coram:
Maya
DP, Bosielo and Seriti JJA and Fourie and Dlodlo AJJA
Heard:
15 September
2016
Delivered:
29 September
2016
Summary:
Provincial
heritage resources authority granting a permit in terms of
s 34
of
the
National Heritage Resources Act 25 of 1999
for the demolition of
a structure older than 60 years situated on a property with no formal
heritage status: in so doing conditions
were imposed controlling
future development on the property: held that such conditions were
lawfully imposed.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Weinkove AJ sitting as
court of first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Fourie
AJA (Maya DP, Bosielo and Seriti JJA and Dlodlo AJA concurring)
[1]
The issue in this appeal is whether the National Heritage Resources
Act 25 of 1999 (the Act) authorises a provincial heritage
resources
authority, when granting a permit for the demolition of an entire
structure which is older than 60 years, situated on
a property with
no formal heritage status, may lawfully impose conditions controlling
future development on the property.
[2]
The appellant is the registered owner of all the sections in a
sectional title scheme comprising the land and a small block
of flats
(the structure) on Erf 1444, Vredehoek, Cape Town (Erf 1444),
situated at 24 Davenport Road, Vredehoek. The appellant
intends to
redevelop Erf 1444 and this requires the demolition of the structure.
As the structure is more than 60 years old, s
34(1) of the Act
prohibits its demolition without a permit issued by the third
respondent, Heritage Western Cape (HWC).
[3]
The appellant’s application for a demolition permit was
considered by HWC’s Built Environmental and Landscape Permit
Committee at a meeting on 24 July 2013, and was refused. The
appellant appealed to HWC’s appeals committee, which refused
the appeal on 18 September 2013.
[4]
The appellant then lodged an appeal with the first respondent, the
Provincial Minister of Cultural Affairs and Sport, Western
Cape (the
MEC). On 21 January 2015, the appeal tribunal appointed by the MEC in
terms of s 49(2) of the Act, upheld the appeal
and granted the
demolition permit, subject to the following conditions:
‘
(a)
that the new development on the site shall not exceed the
town-planning envelope of the
existing building;
(b)
that the materials used for the façade of the new building are
in keeping with
the existing building;
(c)
that building plans for the new structure are submitted to Heritage
Western Cape for
its approval prior to any work commencing on site.’
[5]
Aggrieved by the imposition of these conditions by the appeal
tribunal, the appellant launched an application in terms of the
provisions of the
Promotion of Administrative Justice Act 3 of 2000
,
in the Western Cape Division of the High Court, Cape Town for the
review of the appeal tribunal’s decision and the setting
aside
of the conditions attaching thereto, alternatively for an order
directing the MEC to reconsider the appellant’s appeal.
The
application was opposed by the MEC while the City of Cape Town abided
the decision of the court, but filed an affidavit providing
the
parties and the court with relevant information, particularly with
regard to the proposed designation of a heritage protection
overlay
zone for the area including Vredehoek.
[6]
In the event, the matter was heard by Weinkove AJ who dismissed the
application with costs, but granted the appellant leave
to appeal to
this court. The MEC opposes the appeal. The remainder of the parties
abide the decision of the court.
[7]
The essence of the appellant’s case is that the imposition of
the conditions in the demolition permit by the appeal tribunal
was
not authorised by s 48(2) of the Act and thus ultra vires HWC’s
powers (via the tribunal’s ruling). It is common
cause that an
entity such as HWC exercising public power is confined to exercising
only such powers as are lawfully conferred upon
it ─ this is
the principle of legality. See
Fedsure
Life Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) para 56;
Pharmaceutical
Manufacturers Association of SA & another: In re Ex Parte
President of the Republic of South Africa & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC);
2000 (3) BCLR 241
(CC) para 50;
Qualidental
Laboratories (Pty) Ltd v Heritage Western Cape & another
2008 (3) SA 160
(SCA) para 9 and
Vorster
& another v Department of Economic Development, Environment and
Tourism, Limpopo Province & others
[2006] ZAGPHC 44
;
2006 (5) SA 291
(T) paras 17 and 18.
[8]
It is accordingly necessary to consider the imposition of the
conditions in the demolition permit by the appeal tribunal against
the background of the Act. As explained in
Qualidental
Laboratories
,
para 10, an overview of the Act shows that its overarching objective
is the identification, protection, preservation and management
of
heritage resources for posterity. This objective also finds resonance
in s 24(
b
)
of the Constitution. A heritage resource is defined in s 1 of the Act
as ‘any place or object of cultural significance’.
Cultural significance is defined as meaning ‘aesthetic,
architectural, historical, scientific, social, spiritual, linguistic
or technological value or significance’. A place is defined as
including a site, area or region; a building or group of buildings
and other structures or groups of structures; and open space,
including a public square, street or park. In relation to the
management
of a place, a place is defined as including its immediate
surroundings.
[9]
In terms of s 6 of the Act, the South African Heritage Resources
Agency (SAHRA) and the provincial heritage resources authorities
are
empowered to prescribe principles for the management of heritage
resources and to publish for general information policy relating
to
heritage resources management. Section 7 provides for heritage
assessment criteria and grading. A three-tier system for heritage
resources management is prescribed. National level functions are the
responsibility of SAHRA, while provincial level functions
are the
responsibility of provincial heritage authorities. Local level
functions are the responsibility of local authorities. In
s 25 of the
Act the general powers and duties of heritage authorities are set
out. These are wide-ranging powers and duties enabling
and obliging
heritage authorities to comply with their conservation mandate in
terms of the Act.
[10]
The formal protection provisions of the Act are to be found in part 1
of chapter II (ss 27-33). Section 27 deals with national
and
provincial heritage sites, while s 28 deals with protected areas.
Section 29 provides for the provisional protection of protected
areas
and heritage resources by SAHRA and provincial heritage authorities,
for a maximum period of two years, while local authorities
are
authorised to provisionally protect, for a maximum period of three
months, any place which it considers to be conservation-worthy.
[11]
Section 30 of the Act requires a provincial heritage authority to
compile and maintain a heritage register listing the heritage
resources in the province which it considers to be
conservation-worthy. In terms of s 30(11)(
a
),
the special consent of the local authority is required for any
alteration to or development affecting a place listed in the heritage
register. Section 31 allows for the designation by planning
authorities (including municipalities) and in certain circumstances
provincial heritage authorities, of heritage areas to protect any
place of environmental or cultural interest.
[12]
Part 2 of chapter II of the Act (ss 33-38) deals with general
protection provisions, of which s 34(1) is of importance in the
adjudication of this matter. It reads as follows:
‘
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.’
In
terms of s 34(2), within three months of the refusal of the
provincial heritage resources authority to issue a permit,
consideration
must be given to the protection of the place concerned
in terms of the formal designations provided for in part 1 of chapter
II.
[13]
Finally, for purposes of this matter, reference must be made to s 48
of the Act, which falls within chapter III of the Act,
headed
‘General Provisions’. Subsection (2) provides as follows:
‘
On
application by any person in the manner prescribed under subsection
(1), a heritage resources authority 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 ─
(a)
that the applicant give security in such form and such amount
determined by the heritage
resources authority concerned, having
regard to the nature and extent of the work referred to in the
permit, to ensure the satisfactory
completion of such work or the
curation of objects and material recovered during the course of the
work; or
(b)
providing for the recycling or deposit in a materials bank of
historical building
materials; or
(c)
stipulating that design proposals be revised; or
(d)
regarding the qualifications and expertise required to perform the
actions for which
the permit is issued.’
[14]
As the structure on Erf 1444 is more than 60 years old, its
demolition is not permitted unless a permit has been issued by
HWC in
terms of s 48(2) of the Act. This is the demolition permit which
forms the subject matter of the appeal.
[15]
It is common cause that: neither the structure nor Erf 1444 is a
declared national or provincial heritage site as contemplated
in s 27
of the Act; neither of them enjoy provisional protection in terms of
s 29; nor is either of them listed in a heritage register
in terms of
s 30 or declared as a heritage object in terms of s 32. Furthermore,
Erf 1444 does not fall within a protected area
as contemplated in s
28 of the Act, nor within a heritage area as contemplated in s 31.
While certain areas in Vredehoek fall
within a heritage protection
overlay zone (HPOZ) in terms of the City’s zoning scheme
regulations, Erf 1444 does not. However,
as pointed out in the
affidavit filed by the City of Cape Town, it is currently in the
process of conducting a heritage survey
of Vredehoek with the purpose
of rendering the area in which Erf 1444 is situated subject to the
HPOZ.
[16]
The City has also graded Erf 1444 a proposed IIIC, as it is regarded
as being of significance within its context of a well-preserved,
coherent art deco streetscape spanning both sides of Davenport Road.
In fact, the City has expressed the view that the large concentration
of art deco buildings in the area is probably unique in the South
African context and that Davenport Road is the core of the art
deco
area of Vredehoek. I should add that the main concern of most parties
who made submissions to the heritage authorities opposing
the
demolition of the structure, was that the character of Vredehoek and
this particular street should be preserved.
[17]
In considering the appellant’s submission that the conditions
imposed in the demolition permit are ultra vires the provisions
of s
48(2) of the Act, it is immediately apparent that the submission
flies in the face of the wide scope of application of s 48(2).
As
recorded earlier, the subsection confers a discretion upon a heritage
authority to issue a permit ‘subject to such terms,
conditions
and restrictions or directions as may be specified in the permit’,
including the conditions in paras (a) to (d)
thereof. The word
‘including’ in the context used in s 48(2), is a
word of enlargement, not of limitation. The
conditions which may be
imposed are thus not confined to those set out in paras (a) to (d) of
s 48(2), but may include any appropriate
condition. See
Dibowitz
v Commissioner for Inland Revenue
1952
(1) SA 55
(A) at 61B-D. Needless to say, any condition so imposed has
to be a lawful condition, ie imposed by the relevant heritage
resources
authority exercising a power lawfully conferred upon it.
[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 was
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. Therefore,
on the plain wording of s 48(2) the appeal
tribunal had a wide discretion to impose terms, conditions,
restrictions or directions
in the permit. What remains, is to
determine whether the appeal tribunal could lawfully have imposed the
disputed conditions in
the demolition permit. Put differently, were
the conditions imposed by the appeal tribunal ultra vires the Act?
[19]
As recorded earlier, it is common cause that, although the structure
on Erf 1444 is not worthy of protection, the surrounding
area is. The
City of Cape Town regards the area as conservation-worthy and is in
the process of formally protecting it by incorporation
in the City’s
proposed HPOZ for the area of Vredehoek. The significance of Erf 1444
in the context of its surrounding area,
was described as follows by
the appeal tribunal:
‘
Despite
the building not falling within a Heritage Protection Overlay Zone,
the art deco area of Vredehoek is accepted by the heritage
fraternity
as significant and worthy of being declared a conservation area. In
broad terms and without referring to the boundaries
of the art deco
area, the significance of the area is sufficient to warrant
protective measures.’
[20]
It is important to note that the significance of Erf 1444 within its
surrounding area was also acknowledged by Mr C Snelling,
the heritage
consultant who prepared the ‘Statement of Significance’
which accompanied the appellant’s application
for the
demolition permit. Mr Snelling referred to
‘
.
. . the richer art deco/modernist blocks of flats which are common in
both the street on which the property is located and wider
area .
. . .’
,
and emphasised that:
‘
.
. . the structure does sit comfortably within its environment which
is itself typical of the wider Vredehoek area which is noted
for the
art deco qualities of the various blocks of flats . .
. and the eclectic mix of residential buildings
which although
invariably are of a simple box and hipped roof nature display
variously art deco, Cape Dutch revival and arts and
crafts
qualities.’
[21]
The significance of the IIIC grading of Erf 1444 was recognised by Mr
A C Lillie, the heritage consultant who deposed to the
appellant’s
founding affidavit, as follows:
‘
.
. . grade IIIC heritage resources do not have intrinsic merit ─
their significance derives from their contribution to the
character
of significance of their surrounding areas.’
[22]
It bears emphasising that a ‘place’ is defined in s 1 of
the Act as including a street as well as the immediate
surroundings
of a place. Furthermore, in terms of s 3(1) of the Act those heritage
resources of South Africa which are of cultural
significance or other
special value for the present community and future generations, must
be considered part of the national estate
and fall within the sphere
of operations of heritage resources authorities. In terms of s 3(2)
the national estate may include
places, buildings, structures and
equipment of cultural significance, as well as places which are
associated with living heritage.
Section 3(3) of the Act emphasises
that a place is to be considered part of the national estate if it
has cultural significance
or other special value because of its
importance in exhibiting particular aesthetic characteristics valued
by a community or a
cultural group.
[23]
In terms of s 5(1) of the Act, all heritage resources authorities
performing functions and exercising powers in terms of the
Act for
the management of heritage resources, must recognise, inter alia,
that heritage resources have lasting value in their own
right, and
that they are valuable, finite, non-renewable and irreplaceable, and
must be carefully managed to ensure their survival.
In the present
context, the relevant heritage resources are not confined to the
structure or Erf 1444 itself, but extend, on the
clear wording of the
Act, to the surrounding area, including other buildings or structures
in the immediate vicinity of Erf 1444.
This would encompass the large
concentration of art deco buildings spanning both sides of Davenport
Road and its surrounding area,
which, on all the available evidence,
forms part of the national estate and is worthy of protection. In
fact, as recorded above,
the City of Cape Town has recognised this
and is in the process of rendering Erf 1444 and its surrounds a
protected heritage area.
[24]
Although the proposed designation of the area as a heritage area
requires further refinement, as well as engagement between
the owner
and the public, the evidence shows that it is an ongoing process that
would, in the foreseeable future, result in the
formal protection of
the area in which Erf 1444 is situated. In view thereof, I agree with
the submission on behalf of the MEC,
that it would not make sense to
allow for the demolition, in the interim, of the very resources that
are intended to form the subject
of the HPOZ, without the necessary
counter-balancing measures to preserve the fabric of the HPOZ, such
as the conditions imposed
in the demolition permit.
[25]
The appellant’s construction of s 48(2), limiting the
imposition of conditions to formally declared conservation areas
only, would effectively reduce heritage resources management to a
small area of concern and exclude major instances of possible
abuse
from the power of protection by heritage resources authorities. The
current is a prime example. Where a heritage resource,
such as this
art deco area of Vredehoek, is potentially affected by an application
brought in terms of the Act, the relevant heritage
authorities should
be entitled to impose such conditions as the Act would permit for the
conservation of the affected area. In
fact, their failure to do so
would constitute the shirking of their conservation mandate to
protect heritage resources for posterity.
[26]
Counsel for the appellant reiterated that the Act does not authorise
heritage authorities to impose conditions controlling
future
development on a property when they grant a permit authorising
demolition of the structure on a property with no formal
heritage
status. Therefore, the submission continued, it is impermissible to
attach conditions to a demolition permit for the purpose
of
preserving neighbourhood characteristics unless those neighbourhood
characteristics have been recognised as worthy of preserving
by the
designation of the area as a protected heritage area.
[27]
In
Qualidental
this court also dealt with an appeal regarding
the imposition of a condition as to future development in a
demolition permit in
respect of a structure in an unprotected
heritage area. The same submission was made on behalf of the
appellant, namely that, in
those circumstances, the Act does not
clothe the HWC with the power to impose the relevant conditions. In
paragraph 20 this court
made short shrift of this submission in the
following terms:
‘
I
may add that the purpose and effect of the condition are designed to
enable the first respondent [HWC] to exercise a power vested
in it in
terms of the Act and which, as pointed out, is consonant with the
overall objective of the Act ie the conservation of
a heritage
resource. Therefore the condition, rather than being one aimed at
controlling development, as contended by the appellant,
was in actual
fact a condition with a conservation objective.’
[28]
While the facts in the present appeal differ somewhat from those in
Qualidental
,
this does not detract from the principle enunciated therein, that,
even in an unprotected heritage area, the relevant heritage
conservation authority may, in appropriate circumstances, when
approving a demolition, impose conditions controlling future
development
to protect a heritage resource and its surrounds.
[29]
In my view, the purpose and effect of the conditions imposed in the
present matter were clearly designed to enable HWC to fulfil
its duty
in terms of the Act, ie to conserve a heritage resource. Therefore
the conditions, contrary to the appellant’s submission,
were
not aimed at controlling development as such, but constituted
conditions with a conservation objective. It follows that the
conditions were lawfully imposed in terms of s 48(2) of the Act.
[30]
Counsel for the appellant also had a second string to his bow. He
submitted that an interpretation of the Act which authorises
a
heritage authority, when it grants a permit authorising demolition of
the structure on a property not otherwise protected under
the Act, to
impose conditions controlling future building or development on the
property, permits the arbitrary deprivation of
property contrary to
the provisions of s 25(1) of the Constitution. This line of attack
was first raised in the appellant’s
heads of argument on
appeal. It was not alluded to in the papers in the court below or in
the judgment of Weinkove AJ. In the result
the MEC did not have the
opportunity to meet a case on this basis and to present evidence
which might be relevant to it. However,
there is no need to belabour
this point, as I believe that there is, in any event, no merit in the
appellant’s underlying
submission.
[31]
Section 25(1) of the Constitution provides as follows:
‘
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of
property.’
In
terms of s 25(1), all deprivations of property must meet the
requirements of the section, ie they must be authorised by a
generally
applicable law and may not permit arbitrary deprivation. If
these requirements are not met, the infringement will be
unconstitutional
and invalid, unless it is justifiable under s 36(1)
of the Constitution. See in general P J Badenhorst et al, Silberberg
and
Schoeman’s
The
Law of Property
5ed
(2006) at 545;
First
National Bank of SA Limited t/a Wesbank v Commissioner, South African
Revenue Service & another; First National Bank of
SA Ltd t/a
Wesbank v Minister of Finance
[2002] ZACC 5
;
2002
(4) SA 768
(CC) paras 57-60.
[32]
It is true that the conditions imposed in the demolition permit
amount to a curtailment of the appellant’s entitlement
to deal
with his property as he sees fit, and may therefore to a certain
extent be regarded as a deprivation of property. However,
it is
widely recognised that in our present constitutional democracy an
increased emphasis has been placed upon the characteristic
of
ownership which requires that entitlements must be exercised in
accordance with the social function of law in the interest of
the
community. A J van der Walt and G J Pienaar
Introduction to the
Law of Property
7ed (2016) at 50 put it as follows:
‘
.
. . the inherent responsibility of the owner towards the community in
the exercise of his entitlements is emphasised. The balance
between
the protection of ownership and the exercise of entitlements of the
owner regarding third parties, on the one hand, and
the obligations
of the owner to the community, on the other hand, must be maintained
throughout. This might, in certain circumstances,
even mean that an
owner’s entitlements could be limited or infringed upon in the
interest of the community. In such cases
the infringement must always
be reasonable and equitable [not arbitrary].’
See
also the comments of Davis J in
Qualidental
Laboratories (Pty) Ltd v Heritage Western Cape & another
2007 (4) SA 26
(C) at 37C-E;
Corium
(Pty) Ltd & others v Myburgh Park Langebaan (Pty) Ltd &
others
1993 (1) SA 853
(C) at 858E-F;
Diepsloot
Residents’ and Landowners’ Association & another v
Administrator, Transvaal
[1994] ZASCA 24
;
1994
(3) SA 336
(A) at 349C-J and
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) para 23.
[33]
In the instant matter the partial deprivation of the appellant’s
property rights by means of the imposition of the conditions
in the
demolition permit, is authorised by the Act, in that it stems from
the very purpose of the Act viz the conservation of a
heritage
resource. The imposition of the conditions also accords with the
conservation mandate of HWC in terms of the Act and is
directly in
line with the principles of heritage resources management set out in
the Act.
[34]
In these circumstances I find that there has been no arbitrary
deprivation of the appellant’s rights of ownership by
HWC. On
the contrary, the imposition of the conditions, in my view, was
reasonable and equitable, having regard to the inherent
responsibility of the appellant towards the community in the exercise
of his entitlements as the owner of Erf 1444.
[35]
I therefore conclude that the court below was correct in dismissing
the application for review and accordingly the appeal has
to fail.
[36]
The following order is made:
The
appeal is dismissed with costs, including the costs of two counsel.
____________________
PB
Fourie
Acting
Judge of Appeal
Appearances:
For
the Appellant:
S
P Rosenberg SC (with him K Reynolds)
Instructed
by:
Smith Tabata Buchanan Boyes, Cape Town
Webbers,
Bloemfontein
For
the Respondent:
I Jamie SC (with
him P S van Zyl)
Instructed
by:
The State Attorney, Cape Town
The State
Attorney, Bloemfontein