True Motives 84 (Pty) Ltd v Madhi and Others (543/2007) [2009] ZASCA 4; 2009 (4) SA 153 (SCA); 2009 (7) BCLR 712 (SCA) ; [2009] 2 All SA 548 (SCA) (3 March 2009)

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[2009] ZASCA 4
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True Motives 84 (Pty) Ltd v Madhi and Others (543/2007) [2009] ZASCA 4; 2009 (4) SA 153 (SCA); 2009 (7) BCLR 712 (SCA) ; [2009] 2 All SA 548 (SCA) (3 March 2009)

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case
No: 543/07
TRUE
MOTIVES 84 (PTY) LIMITED Appellant
and
MOHAMED
HANIF MAHMOED MAHDI 1
st
Respondent
THE
CITY OF JOHANNESBURG 2
nd
Respondent
ETHEKWINI
MUNICIPALITY Amicus Curiae
Neutral
citation:
True
Motives v Mahdi
(543/07)
[2009] ZASCA 4
(3 March 2009)
Coram:
SCOTT, CAMERON, HEHER, JAFTA and COMBRINCK JJA
Heard:
28
AUGUST 2008
Delivered:
3
MARCH 2009
Corrected:
Summary:
Local
authority – National Building Regulations and Building Standards
Act 103 of 1977 (‘NBR Act’), s 7(1) – approval or
refusal of
approval of building plans – duty of decision-maker – whether
erection of building will derogate from value of adjoining
property –
when satisfaction of local authority susceptible to interference by
court.
Practice
– judgment – doctrine of precedent – whether findings of
Constitutional Court binding on SCA – proper approach
restated and
applied.
Statute
– interpretation – NBR Act, s 7(1)(b)(ii) – whether local
authority is satisfied that building is to be erected in
such manner
or will be of such nature or appearance that it will probably or in
fact derogate from the value of adjoining or neighbouring
properties.
____________________________________________________________________
ORDER
__________________________________________________________________
On
appeal from:
High Court,
Johannesburg (Louw AJ sitting as court of first instance).
The
appeal is dismissed with costs including the costs of two counsel.
__________________________________
___________________________________
JUDGMENT
___________________________
_______________________________________
HEHER
JA (Scott, Cameron and Combrinck JJA concurring):
[1] This
appeal involves the duties of a local authority to which plans and
specifications are submitted in terms of s 4(1)
1
of the National Building Regulations and Building Standards Act 103
of 1977 (‘the Act’) and, more particularly, the proper

interpretation of s 7(1)
2
of the Act. This is a subject which has arisen on several occasions
3
and the circumstances of this case suggest that local authorities and
the public would benefit from a careful exposition of the
relevant
provisions.
[2] The
appellant has been the registered owner of Erf 178, Morningside Ext
17 since November 2002. The first respondent has owned
the adjoining
Erf 177 since February of the preceding year. On both properties
there are large dwellings.
[3] The
second respondent is the local authority responsible for the
administration of the Act.
[4] Mr
Louis Birkenstock is a director of the appellant. He resides with his
family on its property. He deposed to the f
ounding
affidavit in which the appellant claimed (in its final form) an order
declaring that:
‘
the
second respondent has not lawfully approved in terms of s 6, read
together with s 7, of [the Act], the application made by the
first
respondent to the second respondent to approve plans and
specifications which were submitted by the first respondent to the

second respondent in terms of s 4 of the Act for the erection of
certain alterations adjoining the eastern side of the existing

dwelling erected on [the first respondent’s property] and which
plans were submitted by the first respondent to the second respondent

for approval on 28 May 2004 . . . and purportedly approved by the
second respondent on 19 June 2005. . . .’
[5] In
the alternative, the appellant sought an order reviewing and setting
aside the decision of the second respondent under s
7(1)(a) of the
Act to approve the said application.
[6] Although
the appellant also claimed against the first respondent orders for
demolition of the building alteration and payment
of damages suffered
in consequence of an alleged derogation in value of its property
caused by the offending alteration, such claims
were, for reasons
which will appear, no longer in issue in this appeal.
[7] During
September 2004 Mr Birkenstock noticed that building operations had
begun on the side of the first respondent’s dwelling
close to the
western boundary of the appellant’s property. As work progressed it
became apparent that the alterations would be
extensive. In the
application which the appellant launched in February 2005 Birkenstock
alleged that:
i) A
structure was being added to the eastern side of the house which
would be two and a half storeys high with windows running
along that
side and the northern face of the lower room.
‘
A
person standing in this room would’, [so he deposed] ‘have an
unobstructed view of the interior of the western side of the
dwelling
on [the appellant’s property] as well as the recreational area in
front of [that] dwelling. . . . [A] person standing
in the room and
looking through the window in the northern wall would have a similar
view.’
ii) The
uppermost floor of the structure appeared to be designed as a sort of
patio enabling persons using it to have an unobstructed
view over
surrounding properties, including the appellant’s property.
iii) The
size and position of the alteration blocked out direct sunlight on
and into the western side of the appellant’s dwelling,
a benefit
which it had previously enjoyed until sunset. The rooms of the house
were in consequence colder and darker.
iv) The
alteration was, by reason of its size, design and location,
unsightly, objectionable and out-of-keeping with the architecture
of
the suburb.
v) The
three-metre building line had been encroached on along the eastern
side of the first respondent’s erf at ground level and
above by the
construction of a staircase on the outside wall of the alteration.
vi) The
overall result of carrying out the alterations would violate the
privacy of those living on the appellant’s property and
cause a
substantial derogation in the value of that property. (The appellant
filed supporting affidavits by three experts who variously
estimated
a reduction in value of between half a million and one million rand.
The affidavits were omitted from the appeal record.
We accordingly
have no knowledge of the methods they employed in coming to their
values and the appellant’s counsel did not rely
on such valuations
in arguing the appeal.)
[8] Birkenstock
stated that neither of the respondents had notified the appellant of
an application for approval of building plans
to permit the erection
of the alteration. Nor had the second respondent given him the
opportunity to object (which he would have
done). In addition, the
second respondent took the attitude that it was not obliged to afford
sight of the plans to the appellant
and declined to do so.
[9] The
perceived problem could not be overcome by negotiation.
[10] The
appellant applied to the High Court where both respondents opposed
the application. After a careful consideration of the
contending
arguments Louw AJ dismissed the application with costs.
[11] The
learned judge concluded that, in the circumstances of the case, no
action lay against the first respondent. He decided
in favour of the
second respondent that:
i) it
was not required to notify the appellant of the receipt of a s 4
application or offer it the opportunity to make representations

either as a matter of right or in consequence of a legitimate
expectation;
ii) it
had properly taken into account the possible effects of the approval
of the building application on the market value of the
first
respondent’s property and had not been satisfied that a derogation
in value would result; in terms of s 7(1) it was therefore
obliged to
approve the application, as it had done;
iii) Mr
Dixon, an assistant director in the second respondent’s building
control department, who approved the plans, and Mr Mbhele,
a plans
examiner, who recommended approval, had both been properly authorised
to do so.
[12] Louw
AJ granted leave to appeal in specific terms,
viz
:
‘
1. That
[leave be granted to appeal] to the Supreme Court of Appeal on the
issue of whether the decision of the Second Respondent
to approve the
First Respondent’s building plans falls to be reviewed and set
aside having regard to:-
the
proper interpretation and application of Section 7 of the National
Building Regulation and Building Standards Act of 1977;
the
proper interpretation and application of the provisions of Section
3 read with Section 6 of the
Promotion of Administrative Justice
Act No. 3 of 2000
.
The
legality and validity of the purported delegation to Mr Mbhele.’
He
recorded that leave was refused in respect of the dismissal of the
claims against the first respondent for demolition and damages.
[13] After
the appellant had filed its heads of argument in this Court, the
Constitutional Court handed down judgment in
Walele.
4
It
held
5
inter alia that:
1. A
neighbouring owner (even though potentially vulnerable to the
effects) is not a party to the process by which approval of building

plans is sought and obtained under the Act and is not entitled to be
involved in such process or to inspect plans lodged for approval.
The
granting of approval cannot, of itself, affect such an owner’s
rights. ‘Administrative action’ as contemplated in
s 3
of the
Promotion of Administrative Justice Act 3 of 2000
does not encompass
the subsequent erection of the building. (See paras 31, 32 and 45 of
the judgment.)
2. The
fact that the execution of plans will lead to the erection of a
building in a manner that devalues neighbouring properties
is, on its
own, by reason of s 7 of the Act, a ground of review sufficient to
justify the setting aside of the approval of those
plans. (At para
32.)
The
Court emphasised that because the subsequent execution of plans
submitted for approval may affect the rights of owners of
neighbouring
properties, the relevant provisions of the Act ‘must
be construed in a manner that promotes the implicated rights,
consistently
with the obligation imposed on courts by section 39(2)
of the Constitution’. (At para 52.)
[14] Appellant’s
counsel had no quarrel with the legal principles enunciated in
relation to the first finding referred to in the
preceding paragraph.
The issue of
audi
alteram partem
thus
evaporated. The appellant’s case thereafter rested on the validity
of the following propositions: first, that, on a proper

interpretation of s 7, a local authority must be satisfied that the
erection of a building in consequence of its approval of a
plan, will
not derogate from the value of a neighbouring property; in this
regard
the
appellant relied upon a dictum of this Court in
Paola
v Jeeva
6
(at
para 23)
7
which was quoted with approval by the majority in
Walele
8
(at
para 32)
9
and a statement in the last-mentioned judgment at para 55
10
;
second, that the evidence, such as it was, led to the necessary
inference that the decision-maker had either not applied his mind
to
derogation of value or had done so in a superficial manner which fell
short of achieving the satisfaction which s 7(1)(b)(ii)
required of
him; finally, counsel submitted, with marked lack of enthusiasm, that
the evidence did not support a lawful delegation
of authority to Mr
Mbhele to recommend approval of the plans.
11
[15] Shortly
before the hearing the Ethekwini Municipality applied to be admitted
to the appeal as an amicus curiae
on
the ground of its concern with the proper interpretation of s 7 of
the Act. Since the parties to the appeal were not opposed
to its
participation and its interest was manifest we made an appropriate
order. The submissions of counsel for the amicus were
of great
assistance and I make no apology for incorporating their substance in
this judgment.
[16] I
shall first consider the proper scope of the duties that s 7(1)(a)
and (b) of the Act imposes on a local authority.
[17] It
is apparent from a consideration of s 7(1)(a) read with s 7(1)(b)(i)
that the provisions of s 7(1)(b)(ii) do not fall to
be applied until
the local authority is satisfied that the application in question
“complies with the requirements of this Act
and any other
applicable law”. However the structure of the section is confusing.
I agree with counsel for the amicus that the
reason why the
legislature saw fit to enact it in that fashion was precisely because
it did not want the same test to be applied
to issues of
disfigurement of the area, unsightly or objectionable buildings, and
derogation from value, as it intended should
be applied with respect
to the other considerations which a local authority must take into
account before approving building plans.
[18] Section
7(1)(a) reads as follows:
‘
(1). If
a local authority, having considered a recommendation referred to in
s 6(1)(a)-
(a)
is satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall
grant
its approval in respect thereof’.
[19] The
refusal of approval under s 7(1)(a) is mandatory not only when the
local authority
is
satisfied
that the plans
do
not comply
with the Act and any other applicable law, but also when the local
authority remains in doubt. The plans may not be clear enough.
For
instance, no original ground levels may be shown on the drawings
submitted for approval, with the result that the local authority
is
uncertain as to whether a height restriction imposed with respect to
original ground levels is exceeded. In those circumstances
the local
authority
(a) would
not be satisfied that the plans breach the applicable law; but
equally
(b) would
not be satisfied that the plans are in accordance with the applicable
law.
The
local authority would, therefore, have to refuse to grant its
approval of the plans.
Thus,
the test imposed by section 7(1)(a) requires the local authority to
be positively satisfied that the parameters of the test
laid down are
met.
[20] The
use of the conjunction ‘or’ after s 7(1)(b)(i) makes it plain
that the enquiry postulated by subparas (aa) and (bb)
of s
7(1)(b)(ii) only arises if and when the local authority is satisfied
that the application in question complies with the requirements
of
the Act and any other applicable law. Clearly, the legislature did
not have the factors set out in those subparagraphs in mind
when it
spoke, in subsection 7(1)(a), of compliance ‘with the requirements
of this Act’. In other words, the application may
otherwise comply
with the requirements of the Act and any applicable law but
nevertheless not be susceptible to approval.
[21] The
refusal mandated by section 7(1)(b)(ii) follows when the local
authority is satisfied that the building will probably or
in fact
cause one of the undesirable outcomes. Section 7(1)(b)(ii) does not
authorise a local authority to refuse to grant its
approval upon the
strength of a mere possibility that one of those outcomes may
eventuate. Such an outcome must at the least be
‘probable’. The
Act is not to the effect that the local authority may withhold
approval because it is not satisfied that the
building will not cause
one of those outcomes.
[22] The
requirements of section 7(1)(b)(ii) are as follows:
(a) If
the local authority is satisfied (ie as with subsection 7(1)(a),
capable of reaching a positive conclusion) that the building
will,
for instance, disfigure the area, it must refuse to grant its
approval. This involves being satisfied that the outcome is
certain.
(b) If
the local authority is satisfied that the building will
probably
have a detrimental effect specified in subparas (aa) or (bb) it must
refuse its approval.
(c) If
the local authority is not satisfied on either of the aforegoing then
the refusal of the buildings plans is not mandated
or indeed allowed
by section 7(1)(b)(ii). The decision-maker must then act on its
positive finding with the respect to the requirements
of section
7(1)(a) of the Act.
[23] I
agree with the amicus that, on the aforegoing analysis, a local
authority may entertain some level of concern about whether
a
proposed building will disfigure the neighbourhood or derogate from
the value of neighbouring properties (and so on), but that
concern
may not be at a high enough level for it to be satisfied that the
undesirable outcome is probable. If that is the state
of its mind (or
that of its authorised decision-maker) with respect to these issues,
the local authority must approve the plan.
[24] When
one has regard to the nature of the circumstances which may compel a
refusal of building plans under section 7(1)(b)(ii)
of the Act, one
sees that they are very much matters of opinion, matters upon which
reasonable persons may disagree. They are not
as clear-cut as, for
instance, the distance a building is set back from a street.
Recognising this, the legislature introduced
the concept of a
‘probability’ that the building would be of a certain type or
have a certain effect. Probabilities do not
come into the inquiry
under subsection 7(1)(a).
[25] I
have referred above to the dictum of this Court in
Paola
v Jeeva
.
Does the analysis of s 7(1)(b)(ii) which I have undertaken deviate in
any way from what we said there; in particular─
i) did
that dictum postulate a different (and incorrect) test from the one
expressed by the legislature
viz
that
the local authority must be (positively) satisfied that the
undesirable outcome will
not
,
or probably will
not
,
be caused by the erection of the building; and
ii) did
it lay down that the proper enquiry, when confronted with an
application to review a decision to approve a plan, is not
with
respect to the question of whether the local authority was satisfied
(or not satisfied), but rather whether as a matter of
fact, the
erection of the building will cause one of the undesirable outcomes
specified in subparas (aa) and (bb) of s 7(1)(b)(ii)?
[26] The
following aspects of the judgment in
Paolo
serve
to elucidate the rationale for its dictum:
(a) From
evidence in the way of photographs and the like, it was clear to the
Court that if the alterations depicted in the approved
plan were
constructed, the appellant’s ‘exceptional view’ would be
substantially impaired and that there would be ‘an intrusive

obstruction on the outlook’ from the appellant’s house (paragraph
3).
(b) An
estate agent and valuer gave evidence to the effect that there would
be a significant diminution in value of the appellant’s
property;
no attempt was made to rebut that evidence, and it had to be accepted
as correct (paragraph 4). In the result, the contentions
of the
parties were based upon it being, in effect, common cause that
Paola’s property would lose value as a result of the construction

of the proposed extensions to the Jeeva house. It was plain, on the
record, that the municipality had come to a conclusion that
the
construction on the adjoining property would derogate from the value
of Paola’s property, but contended, nevertheless, that
the
diminution was not one to be taken into account under the Act.
(c) Against
that background
(i) Paola
argued that the word ‘value’ bears its ordinary meaning of
‘market value’;
(ii) Jeeva
argued that a reduction in value caused by a loss of view should not
be taken into account, and that in any event all
neighbouring
properties and not just one of them had to be affected (paragraph
20); and
(iii) the
municipality submitted that the value contemplated was a diminution
in value of neighbouring properties as a group, and,
further, that
the reference to ‘value’ in the section was a value assessed upon
the basis ‘that no value is attributed to
a view for planning
purposes’ (paragraph 21).
[27] Those
were the only issues before the Court in
Paola
.
This Court held that market value prevailed, even if the diminution
flowed from the loss of a view. It was in that context that
the Court
accepted, what was not in dispute, that the municipality knew at the
time of making its decision to grant approval that
execution of the
plans would significantly diminish the market value of the property
and that s 7(1)(b)(ii) therefore prevented
approval of the plans.
[28] This
Court did not hold in
Paola
that,
merely on the facts put before it, it could review and set aside the
decision to approve the plans. That was not the issue
and nor was it
the proper construction of s 7(1)(b)(ii) of the Act.
[29] In
the result,
Paola’s
case
is not authority for the propositions that
(a) the
approval of a plan for a building, the erection of which will result
in a derogation in value, is
per
se
invalid;
(b) the
question of what the local authority was satisfied about (or not
satisfied about) is not a relevant consideration and the
court’s
own determination of the issue as to whether a building will derogate
from value justifies the setting aside of a local
authority’s
approval of a plan;
(c) a
local authority must be satisfied that none of the undesirable
outcomes set out in section 7(1)(b)(ii) will be a consequence
of the
erection of the building concerned.
[30] There
is a further aspect of s 7(1)(b)(ii) which requires elucidation. It
is concerned with a reduction in ‘market value’.
Both in the
affidavits of the appellant and the submissions of its counsel the
impression is created that because the development
of the offending
building provided extensive opportunities for looking into and over
the appellant’s property, materially interfered
with its previously
existing access to warmth and light and imposed itself in an
intrusive and unattractive manner on that property,
the necessary (or
at least probable) consequence was a derogation in the value of that
property. But that does not follow. ‘Market
value’ is the price
that an informed willing buyer would pay to an informed willing
seller for the property, having regard to
all its potential at the
time of sale, both realised and unrealised. One important modifier of
such potential, in the present context,
derives from the existing
controls on the property laid down in the town-planning scheme and
the title deed conditions. Informed
parties would acquaint themselves
with the zoning and the permissible limits of height, coverage, bulk,
building lines etc, all
of which influence the utility of the
property, and, therefore, its inherent value. Of course, potential
for changing any of these
aspects may also be apparent in appropriate
market conditions. But such conditions may also influence the
likelihood that a property
will or will not be exploited to the
limits of its potential. From all this it is obvious that the
hypothetical informed buyer
and seller will always be aware of
inherent advantages and disadvantages flowing from the lawful
exercise of rights and will build
them into market price according as
they assess the likelihood that they will occur. The extent of such
influence is of course
an objective question and the subjective
reaction of a particular party is only relevant to the extent that it
finds a meaningful
echo in the mind of the hypothetical willing buyer
or seller. Aesthetics, intrusion, overshadowing and invasion of
privacy are
all examples of disadvantages which flow to a greater or
lesser extent from the lawful development of a property to a
potential
which exceeds its existing use. In every case involving
assessment of value under s 7(1)(b) the local authority is entitled
and,
indeed, obliged to take into account adverse aspects of this
nature where the informed willing buyer and seller would factor them

into their purchase price. That is done in order to arrive at market
value. But derogation from market value only commences when
the
influence of such aspects exceeds the contemplation of the
hypothetical informed parties. Take, for example, the case of a

developer who builds to maximum bulk in reckless disregard of market
opinion. Such a person might well find that his development,
although
falling within the strict confines of existing developmental
controls, derogates from the value of an adjoining property
because
the hypothetical purchaser and seller of that property would have
regarded the likelihood of such a development as too
remote to
influence their price.
[31] Each
case is manifestly dependent upon the local authority’s evaluation
of the known facts. Does this mean that, in order
to discharge its
duty, the local authority is obliged to employ a professional valuer
to advise it in relation to every application
for the approval of a
building plan (as was suggested in the appellant’s affidavits)?
That is neither practical nor cost effective.
The building control
officer for which the Act provides is a man likely to possess
professional and practical experience in one
at least of civil
engineering, structural engineering, architecture, building
management, building science, building surveying
or quantity
surveying.
12
He will also have access to advice in relation to by-laws and
town-planning legislation applicable within his local authority area.

The primary facts of the proposed erection will be apparent from the
documents submitted under s 4, and, if they are not, he will
seek
clarification in writing, by discussion with the applicant or his
representative or on the ground by physical inspection.
If the
evidence available to him justifies such investigations he may
consider it appropriate to draw a potentially affected neighbour
into
the process. Thereafter he will make a value judgment based on the
established facts and probabilities, applying his experience,
as to
whether any disadvantage will result to a neighbouring property which
would not be known to or expected by informed parties
in the purchase
and sale of that property. If a real prospect of such a disadvantage
presents itself the decision-maker may consider
it appropriate to
take advice from a professional valuer, but provided he applies his
mind fairly to the facts in order to reach
a rational conclusion he
is not obliged to go that far. His judgment will determine whether or
not the statutory level of satisfaction
(that the approval will
probably result in derogation of value) has been reached or not.
[32] In
Paola
v Jeeva
(at
para 23) this Court said
‘
Once
it is clear, as it is on the facts before us, that the execution of
the plans will significantly diminish the value of the
adjoining
property then, on its plain meaning, the section prevents the
approval of the plans.’
[33] As
I have noted earlier in this judgment, this passage was cited with
approval in
Walele
.
In para 32 of the judgment the majority of the Constitutional Court
relied on it as authority for the proposition that:
‘
a
local authority is not authorised to approve plans in circumstances
where their execution will diminish the value of neighbouring

properties’.
As
I understand this passage, in its context, the court was stating a
test which requires as a condition for approval of a plan
that the
local authority be (positively) satisfied that the undesirable
consequence envisaged in subpara (ccc) will not or probably
will not
result from the erection of the building. That this is what was
intended also appears from paras 55 and 63.
13
Paragraph 66 of
Walele
is, at best, ambiguous:
‘
If
[the decision-maker] is satisfied that the application for approval
complies with the necessary requirements and that none of
the
disqualifying factors will be triggered, the decision-maker has no
choice but to approve the plans. If, on the other hand,
he or she is
satisfied that one or more of the disqualifying factors will be
triggered, he or she must refuse to grant approval.’
[34] In
para 55 of
Walele
,
para 23 of
Paola
v Jeeva
is
cited to support a proposition that:
‘
any
approval of plans facilitating the erection of a building which
devalues neighbouring properties, for example, is liable to
be set
aside on review’.
In
order to set that passage in its proper context it is necessary to
quote the full paragraph:
‘
Accordingly
the decision-maker must be satisfied of two things before granting
approval. The first is that he or she must be satisfied
that there is
compliance with the necessary legal requirements.
Secondly,
he or she must also be satisfied that none of the disqualifying
factors in sections 7(1)(b)(ii) will be triggered by the
erection of
the building concerned. This is so because any approval of plans
facilitating the erection of a building which devalues
neighbouring
properties, for example, is liable to be set aside on review. An
approval can be set aside on this ground irrespective
of whether or
not the decision-maker was satisfied that none of the disqualifying
factors would be triggered. All that is needed
for an applicant to
succeed is to prove to the satisfaction of the reviewing court that
the erection of the building will reduce
the value of his or her
property.
The legislature could not have intended to authorise an invalid
exercise of power.
In
order to avoid this consequence, the decision-maker must at least be
satisfied that none of the invalidating factors exist before
he or
she grants approval.
This interpretation is consistent with the obligation to promote the
spirit, purport and objects of the Bill of Rights. It demonstrates

that it is not only the landowner’s right of ownership which must
be taken into account, but also the rights of owners of neighbouring

properties which may be adversely affected by the erection of a
building authorised by the approval of the plans in circumstances

where they were not afforded a hearing. The section, if construed in
this way, strikes the right balance between the landowner’s

entitlement to exercise his or her right of ownership over property
and the right of owners of neighbouring properties. The
interpretation
promotes the property rights of the landowners and
those of its neighbours.’
(The
emphasis is mine.)
I
interpret the highlighted passages as meaning that the proper enquiry
when a local authority is confronted with an application
to approve a
plan is whether, as a matter of fact (and, presumably, a matter which
can be determined by the court in review proceedings)
the erection of
the building will result in one of the undesirable consequences,
since only by doing so can the constitutional
balance properly be
struck. These passages are in conflict with the interpretation which
I have earlier placed on s 7(1)(b)(ii).
[35] The
dicta
in
paras 32 and 63 are, in my view, not supported by an examination of
Paola
v Jeeva
and
are, with respect, wrong. As I shall attempt to show, however, they
were also delivered obiter. Paragraph 55, likewise, I respectfully

suggest, contains wrong statements of the law and is also obiter.
[36] I
agree with the submission of the amicus that the dictum in para 55 of
Walele
wrongly creates the impression that a right of appeal lies to a court
when an objector contends that, as a matter of fact, the
erection of
a building according to an approved building plan will derogate from
the value of his or her property. The existence
of such a right is in
conflict with the appeal procedure laid down in s 9 of the Act,
ignores the nature of the local authority’s
decision under s
7(1)(b)(ii) and the test which that body is required to apply (as
discussed above) and unnecessarily blurs the
distinction between
appeal and review proceedings.
14
[37] As
to whether the dicta in para 32, 55, 63 and 66 form part of the
ratio
decidendi
of the majority judgment in
Walele
,
15
I think the question must be answered in the negative. That judgment
answered two questions. First, it held that persons who might
object
to a building plan were not entitled to a hearing before it was
approved. Second, it concluded that there had been non-compliance

with the jurisdictional requirements necessary for the exercise of
the power to approve plans. (See para 9 of the judgment.) In

particular, it was the decisionmaker, and not merely the building
control officer, who had to be ‘satisfied’ in accordance
with s 7
of the Act as to the matters set out in subparas (aa) and (bb). Only
the first aspect is relevant here.
[38] The
consideration which led to the first finding commenced at para 27 of
the judgment and concluded at para 45. In so far as
para 32 is
concerned the dictum in question is based on an assumption, ie proof
of derogation in value, which did not apply to
the case before the
court and was in event purely subsidiary to the conclusion already
reached that s 3 of PAJA should not be construed
to encompass the
subsequent erection of flats pursuant to the approval of a building
plan - because the approval of the plan was
the administrative
decision which had materially and adversely to effect the applicant
whereas, in fact, it was the erection of
the building which had that
effect.
[39] As
to the dicta in paras 55, 63 and 66, the (erroneous) interpretation
placed on s 7 played no part in the decision of the
second question,
which would have been the same even if the correct analysis of the
section had been adopted. The court decided
that the building control
officer had information concerning issues which the decision-maker
was required to consider which he
had not placed before the latter;
the decision-maker was, therefore, in no position to form any view
which justified its making
a decision.
[40] I
now turn to consider whether the facts adduced in the case before us
justify the appellant’s complaint that Mr Dixon did
not apply his
mind or, if he did, should have been satisfied that its property
would probably suffer a reduction in value if the
building were
erected.
[41] Mr
Holden, the Building Control Officer of the local authority, deposed
to a lengthy affidavit. He was supported by a confirmatory
affidavit
from Mr Dixon, the Area Head: Building Control. The facts which they
set up have not been disputed on any convincing
basis by the
appellant and, to the extent that any dispute possessed a scintilla
of merit, the version set up by the second respondent
had to be
accepted in the absence of oral evidence. It appears that Holden’s
understanding of the legal implications of s 7 at
all material times
accorded substantially with the interpretation I have placed on it.
He directed the affairs of his department
according to that
understanding. I shall deal first with the manner in which the first
respondent’s building plans were assessed
for compliance with the
Act and its regulations.
[42] In
the City of Johannesburg the section that is responsible for the
administration of the Act is the Building Control Sub-directorate.

One of its subdivisions is Plans Examination which is responsible for
assessment and compliance of plans and establishing compliance
with
the town-planning scheme.
[43] The
scrutiny of building applications and recommendations for approval
(or refusal) is undertaken by plans examiners in accordance
with
powers delegated to them by the Building Control Officer. The
approval of applications is undertaken by Assistant Directors,
also
in accordance with delegated powers.
[44] Plans
examiners are required to have either an appropriate tertiary
qualification or extensive relevant practical experience.
They also
receive on-the-job training in matters such as the interpretation and
application of the Act and regulations. Assistant
Directors are
required to have a tertiary qualification in one of the disciplines
listed in regulation A16, as well as extensive
practical experience
in a managerial position in the building control functions of a local
authority.
[45] In
2004 the City of Johannesburg was receiving over 1500 new building
applications each month. Delegations of authority are
necessary to
process such a volume.
[46] According
to Holden, the building control officials do not attach much weight
to the subjective views of property owners. In
exercising their
decision-making role they are enjoined to apply impersonal, objective
and rational criteria. As a general policy,
once a building plan
demonstrates compliance with the Act, regulations and the scheme
there arises a strong prima indication that
approval should be
granted. I would agree that, given the meaning of ‘market value’
as discussed in para 30 above, this is
a pragmatic and justifiable
way of addressing s 7(1)(b)(ii)(ccc), provided that the official
concerned does not ignore other factors
which may point in a
different direction.
[47] The
first respondent’s application did fall within the limits of
primary rights of use, height and coverage. Although the
scheme
permitted the erection of a building to a maximum height of three
storeys on the land, the application sought approval for
only two
storeys.
[48] Despite
the policy, plans examiners do not merely rubber-stamp applications.
According to Holden, ‘They will have regard
to the factors set out
in s 7(1)(b)(ii) of the Act and, where there is some uncertainty,
they will have recourse to more senior
staff, if necessary, to
myself. Indeed, that is what happened in the present case’.
[49] Within
the existing legal restraints the Building Control officials
recognise and take account of cultural demands, social
paradigms,
racial diversity and integration. One such consideration that applied
in the application by the first respondent was
‘that certain
communities seek to maximise their access to built-up space in terms
of both area and elevation’.
[50] It
is not feasible for Holden’s department to maintain qualified
valuers on its staff either as employees or contractors.
(If this is
so for the country’s largest local authority, it must also hold
good for the great majority of local authorities
who are required to
apply the provisions of the Act.)
[51] The
building plan application was received by the City of Johannesburg on
28 May 2004. On 1 June Mr Mahdi called on Dixon to
enquire whether
the first respondent could obtain provisional approval in terms of s
7(6) of the Act. Dixon undertook a preliminary
evaluation. He
identified a number of aspects which raised concern. These he
discussed with Mahdi. One such was the effect of overlooking.
He
established that there would be a 3m distance between the building
and the boundary of the first respondent’s property with
the
appellant’s erf. Mahdi indicated his willingness to take such
measures as the City might require in order to avoid a problem
with
overlooking. He produced an aerial photograph showing the
relationship between his existing house, the proposed alterations
and
the structures on the adjoining properties. Dixon indicated that the
external staircase to be built on the wall of the first
respondent’s
house next to the appellant’s erf should be modified by building a
screen wall. The proposed patio level was similarly
to be modified by
erecting a 1,8m high screen of translucent bricks intended to allow
light and soften the effect of the wall of
the altered structure.
Mahdi accepted the requirements and initialled the plans.
[52] At
a further meeting on 3 June 2004 the agreed remedial measures were
confirmed.
[53] Dixon
was satisfied that the requirements of the regulations had been met.
He referred the plans to Holden, who in turn satisfied
himself that
they did not offend against the legislative prescriptions and
concurred in the measures agreed to address the overlooking
issue.
Holden considered that a reasonable solution had been achieved.
[54] The
building plan file was handed to Mbhele who, as previously mentioned,
was a plans examiner. After examining it, he recommended
that the
application be granted. Dixon, who was fully familiar with the
application and the measures put in place to meet possible

objections, formally approved the application on 10 June 2004.
[55] From
the above, undisputed, train of events, the most probable inference
is that Dixon was conscious of the kind of problems
that might
reasonably have an adverse effect on the appellant’s property. The
most obvious was the height and proximity of the
proposed building.
Both aspects were within permitted legal limits but he, very
properly, was astute to bring about a resolution
which was not only
legal but likely to reduce offence.
[56] The
affidavit of Holden makes it clear that his concern and that of Dixon
did not stop at overlooking. The casting of shadows
by buildings, he
says, cannot be avoided in developing urban areas and is a common
phenomenon. The officials do not ignore such
disadvantages. In the
present instance, however, they were satisfied that the northern face
of the appellant’s property, which
was the single most important
aspect with regard to sunlight, continued to enjoy the full benefit
throughout the year, whereas
the western side suffered the effects of
the normal and lawful use of the next door property. The impact of
the alteration in the
amount of light falling on that property was
considered by the officials to fall well within the acceptable limits
in an urban
environment. The distance of some 13,6m between the
proposed alteration and the appellant’s house was regarded as
substantial
in regard to mitigating the detriment of shadow-creation,
bearing in mind that the primary rights under the scheme, if fully
exercised
by both owners, would have allowed the erection of two
three-storey houses at a distance of 6m apart.
[57] Such
being the facts to which the law, as I have earlier stated it, must
be applied, can the appellant succeed? I think not.
It has been
unable to show that the local authority misdirected itself in either
its legal interpretation or factual application
of s 7(1)(b)(ii) and,
accordingly failed to establish any basis for the court to have
interfered in the exercise of its discretion.
Nor has it satisfied me
that the local authority’s decision-maker, Dixon, did not apply his
mind to the question of whether there
would or would not be a
derogation from such value; on the contrary, I am satisfied that he
did so in the sense which was required
of him. Dixon’s approach was
both rational and reasonable. The appellant has not persuaded me that
he ignored any material consideration
or took into account any
irrelevant factor.
[58] That
leaves for decision the validity of the delegation to Mbhele of the
power to recommend approval. (I am inclined to think
that the
decision-maker, Dixon, had himself done the spadework on the strength
of which a decision could validly have been made,
but since the
delegation to Mbhele was fully canvassed in the heads of argument, I
am content to ignore that probability.)
[59] The
power to delegate flows from s 6(1) read with s 6(4) of the Act. At a
meeting of the Council held on 28 June 2001 a resolution
was taken
that:
‘
in
terms of Section 6(4) of the [Act], the [City] approve of the
Building Control Officer delegating the functions listed in the

attached Annexure A, or any other such duty or power which may become
necessary in the opinion of the Building Control Officer
from time to
time, which delegation shall be in writing and reported to the
Executive Director: Development Planning, Transportation
and
Environment.’
The
appellant’s submissions are, first, that Holden did not possess the
requisite approval from the City, as required by s 6(4),
to delegate
his power to make recommendations to Mbhele, and, second, that the
delegation to Mbhele had not been reported to the
Executive Director:
Development Planning, Transportation and Environment.
[60] Counsel
for the second respondent submitted that, upon a proper
interpretation of the resolution, the need to report only relates
to
such other duty or power as the Building Control Officer may deem it
necessary to delegate. However that interpretation seems
forced and
at odds with the language, which prima facie covers delegations
having their origin both in the Annexure A functions
and in the
opinion of what is necessary.
[61] The
evidence establishes that on 11 February 2004 Holden expressly
delegated ‘the function of recommending a building plan
for
approval’ to Mbhele. He did so in accordance with the resolution
referred to in paragraph 59 above. The letter of delegation
was
copied to the Director: Development Management, Mr Tiaan Ehlers. The
Executive Director: Development Planning, Transportation
and
Environment was Ms Amanda Nair to whom Ehlers reported directly. In
the circumstances there is no reason to believe that the
notification
to Ehlers was not in effect a report to his superior which satisfied
the requirements of the Council resolution. For
these reasons I find
that there is no merit in the somewhat speculative attack made by the
appellant on the authority of Mbhele.
[62] The
amicus curiae
did
not seek an order for costs in its favour in the event of the appeal
failing.
[63] In
the result the following order is made:
The appeal is
dismissed with costs including the costs of two counsel.
_
__________________
J A
HEHER
JUDGE
OF APPEAL
JAFTA
JA:
[64] I
have had the opportunity of reading the majority judgment. I am
constrained to disagree with its interpretation of s 7 of
the
National Building Regulations and Building Standards Act 103 of 1977
(the Act). In my view the literal approach is not suitable
for
construing a provision such as s 7 of the Act for two reasons. The
first is that the interpretation reached following the application
of
the literal approach defeats the purpose of s 7(1)(b)(ii) and does
not comply with the obligation imposed on courts by s 39(2)
of the
Constitution.
16
The second is that in
Walele
17
the Constitutional Court has preferred the purposive approach, which
complied with the requirements of s 39(2) of the Constitution,
in
interpreting the section. In my view it is not permissible for this
court to interpret the section in a manner which contradicts
the
construction given to it by the Constitutional Court.
[65] At
the outset I must mention that it is fairly common for a particular
statutory provision to be susceptible to two reasonable

interpretations. This happens frequently
in
cases of poorly drafted enactments such as s 7 of the Act. Depending
on the canons of interpretation employed by each interpreter,
two
interpreters may arrive at different constructions of the same
provision. In the event of this happening, preference must be
given
to the interpretation which advances the purpose of the provision
concerned while complying with s 39(2) of the Constitution.
18
Faced with a similar difficulty in
CUSA
v Tao Ying Metal Industries and Others
19
the Constitutional Court said:
‘
[E]ven
if it were to be so (and I do not accept that this is the case) that
the existence of the condition renders the interpretation
contended
for by the employer a reasonable one, it would, in my view, not be
the only reasonable construction. At best, the construction
contended
for by the employer would be as reasonable as that urged by CUSA. In
my view, the meaning preferred in this judgment
accords better with
the values of our Constitution. This is so because, on the facts of
this case, a labour regime that enabled
the greater exploitation of
black people in the homelands as part of the apartheid scheme, to the
detriment of the worker
s
in these areas, would, on the employer’s interpretation, be kept in
force for longer than the interpretation preferred in this
judgment.’
[66] Section
4 of the Act prohibits construction of buildings within the
jurisdiction of a local authority unless the building plans
relating
to such construction have been approved by the local authority
concerned. A breach of this prohibition constitutes a criminal

offence. The section prescribes the manner in which an application
for the approval of the plans must be lodged.
20
[67] Section
7 outlines the procedure to be followed by a local authority in
considering applications submitted in terms of s 4
for approval.
Section 7(1) provides:
‘
(1) If a local
authority, having considered a recommendation referred to in section
6(1)(a)–
(a) is
satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall
grant
its approval in respect thereof;
(b) (i) is not so
satisfied; or
(ii) is satisfied
that the building to which the application in question relates–
(aa) is
to be erected in such manner or will be of such nature or appearance
that–
(aaa) the area in
which it is to be erected will probably or in fact be disfigured
thereby;
(bbb) it will
probably or in fact be unsightly or objectionable;
(ccc) it will
probably or in fact derogate from the value of adjoining or
neighbouring properties;
(bb) will probably
or in fact be dangerous to life or property,
such
local authority shall refuse to grant its approval in respect thereof
and give written reasons for such refusal:’
[68] The
majority judgment reads subsections (1)(a) and (1)(b) separately and
holds that the two subsections postulate different
tests for the
approval of building plans (para 17) and concludes that:
‘
The
refusal mandated by section 7(1)(b)(ii) follows when the local
authority is satisfied that the building will probably or in
fact
cause one of the undesirable outcomes. Section 7(1)(b)(ii) does not
authorise a local authority to refuse to grant its approval
upon the
strength of a mere possibility that one of the outcomes may
eventuate…. The Act is not to the effect that the local
authority
may withhold approval because it is not satisfied that the building
will not cause one of those outcomes.’
21
[69] Applying
the literal approach, the majority construes s 7(1)(b)(ii) as not
imposing an obligation on the decision-maker to
satisfy itself that
the erection of the building will not probably or in fact lead to
harmful consequences, before approving the
building plans. Instead
the majority construes the subsection to mean that the decision-maker
is obliged to grant approval even
where it suspects that the building
may give rise to harmful consequences. The decision-maker may do this
without investigating
the facts so as to satisfy itself that the
building will probably not lead to harmful consequences. In this
regard the majority
says:
‘
I
agree with the amicus that, on the aforegoing analysis, a local
authority may entertain some level of concern about whether a

proposed building will disfigure the neighbourhood or derogate from
the value of neighbouring properties (and so on), but that
concern
may not be at a high enough level for it to be satisfied that the
undesirable outcome is probable. If that is the state
of its mind
with respect to these issues, the local authority must approve the
plan.’
22
[70] On
the above interpretation, the decision-maker is entitled to refuse to
approve building plans only if it is positively satisfied
that the
erection of the building will lead to harmful consequences. It is not
obliged to first satisfy itself that none of the
harmful consequences
will occur. If the consideration of the relevant facts leaves the
decision-maker in doubt, it must approve
the plans. And if it turns
out later that the erection of the building derogates from the value
of the neighbouring properties,
the affected neighbours cannot
challenge the validity of the approval. They would be left without
remedy in circumstances where
the purpose of s 7(1)(b)(ii) would have
been defeated. Such a result would constitute a gross absurdity which
could not have been
intended by the legislature. Section 7(1)(b)(ii)
was designed to prohibit the approval of building plans where the
erection of
the building will lead to the consequences specified
therein. If the literal meaning of the subsection defeats its
objective then
the subsection ought to be construed differently so as
to ascribe to it a meaning that promotes its purpose.
[71] Since
the owners of neighbouring properties are not entitled to a hearing
at any stage of the process leading up to the granting
of an
approval, the protection of their rights depends on the manner in
which the decision-maker exercises the power conferred
by s 7(1). As
Lewis AJ explained in
Odendaal
v Eastern Metropolitan Local Council
:
‘…
both
the Act and the [town-planning] Scheme are legislative instruments
for ensuring the harmonious, safe and efficient development
of urban
areas …. Local authorities are given considerable powers under both
Act and Scheme. Onerous duties are imposed on them
by both
instruments. The essential purpose of the powers afforded and the
duties imposed is to ensure that the objectives of the
legislative
instruments are achieved: that there is a balance of interests within
a geographical community. The local authorities
are in effect the
guardians of the community interest. They are entrusted with ensuring
that areas are developed in as efficient,
safe and aesthetically
pleasing a way as possible. They are required to safeguard the
interests of property owners in the areas
of their jurisdiction. That
is why the powers and rights of owners of immovable property are
restricted. Power over one’s property
has never, under our legal
system, been unfettered. The rights of an owner of land have always
been limited by the common law in
the interests of neighbours. But
the rapid urbanization of countries worldwide and the inevitable need
for regulation that has
accompanied it has had the effect of
restricting full dominium even further than the common law ever
did.’
23
[72] Moreover,
the interpretation of s 7(1)(b)(ii) by the majority does not comply
with the mandatory requirement imposed by s 39(2)
of the
Constitution. This section requires that when legislation such as s
7(1)(b)(ii) is construed, the court must not look only
for an
interpretation that is consistent with the Constitution but for an
interpretation that will also promote the spirit, purport
and the
objects of the Bill of Rights.
24
Consistently with this approach a court construing s 7(1)(b)(ii) must
adopt an interpretation which protects not only the rights
of the
landowners applying for approval of building plans but also the
rights of the owners of neighbouring properties which may
be affected
as a result of the erection of a building. Such interpretation would
accomplish the balance of interests described
in
Odendaal
as one of the objectives of the Act. As it appears below every court
is obliged to invoke the interpretive approach in s 39(2).
[73] In
Phumelela
Gaming and Leisure Ltd v Gründlingh and Others
,
25
the Constitutional Court stressed the fact that s 39(2) was mandatory
and that it must be applied in interpreting all legislation.
In that
case Langa CJ said:
‘
A
court is required to promote the spirit, purport and objects of the
Bill of Rights when “interpreting any legislation, and when

developing the common law or customary law”.
In
this no court has a discretion. The duty applies to the
interpretation of all legislation
and whenever a court embarks on the exercise of developing the common
law or customary law. The initial question is not whether

interpreting legislation through the prism of the Bill of Rights will
bring about a different result.
A
court is simply obliged to deal with the legislation it has to
interpret in a manner that promotes the spirit, purport and objects

of the Bill of Rights.
’
(emphasis added)
[74] As
stated above, the literal approach proposed by the amicus thwarts the
very objective for which s 7(1)(b)(ii) was designed.
Without an
obligation on the decision-maker to satisfy itself that none of the
harmful consequences will probably occur before
granting approval,
the protection afforded owners of the neighbouring properties will be
seriously undermined. In spite of the
mandatory nature of s 39(2),
the interpretive process suggested by the amicus does not refer to it
at all. Expressing his disapproval
of such approach in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
26
Ngcobo
J, writing for the Court, said:
‘
I
am troubled therefore by an interpretative approach that pays too
much attention to the ordinary language of the words “have
regard
to”. That approach tends to isolate s 2(
j
)
and determine its meaning in the ordinary meaning of the words “have
regard to”. It “ignores the colour given to the language
by the
context”. That context is the constitutional commitment to
achieving equality, the foundational policy of the Act to transform

the industry consistent with the Constitution and the Act read as a
whole. The process of interpreting the Act must recognise that
its
policy is founded on the
need
both to preserve marine recources and to transform the fishing
industry, and the Constitution’s goal of creating a society
based
on equality in which all people have equal access to economic
opportunities.’
27
[75] In
Walele
the Constitutional Court interpreted s 7(1)(b)(ii) to mean that where
the application for the approval of building plans meets
the legal
requirements, the decision-maker is required to approve them only if
it is also satisfied that the erection of the building
will probably
not or in fact cause any of the harmful consequences listed therein.
The court held that this interpretation protects
the rights of the
owners of the neighbouring properties while at the same time
complying with the obligation imposed by s 39(2).
28
[76] In
the present case the majority holds that the dicta in paras 32 and 63
in the
Walele
judgment are wrong.
29
The majority then concludes by saying:
‘
[T]he
dictum in para 55 of
Walele
wrongly creates the impression that a right of appeal lies to a court
when an objector contends that, as a matter of fact, the
erection of
a building according to an approved building plan will derogate from
the value of his or her property. The existence
of such a right is in
conflict with the appeal procedure laid down in s 9 of the Act,
ignores the nature of the local authority’s
decision under s
7(1)(b)(ii) and the test which that body is required to apply (as
discussed above) and unnecessarily blurs the
distinction between
appeal and review proceedings.’
30
The
above findings are based on the assumption that the interpretation
preferred by the majority is correct. Once the interpretation
adopted
in
Walele
is applied, the difficulties mentioned above disappear. On that
interpretation approval of building plans where the erection of
a
building will lead to any of the harmful consequences is prohibited
and as a result such approval can be challenged on review.
That this
constitutes a ground of review is clear from s 6(2)(f) of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).
31
It raises the question of legality and not the correctness of the
approval. In our law legality is a well-established ground of
review.
Moreover, s 9 of the Act does not apply to an objector to the
approval of building plans.
[77] The
question that arises is whether it is permissible for this court to
decline to follow a decision of the Constitutional
Court if it holds
the view that such decision is wrong. The answer to this question
must be sought from two sources: the structure
of our courts as
outlined by the Constitution and the doctrine of judicial precedent.
In relation to matters that fall outside
the jurisdiction of the
Constitutional Court, this court enjoys a status equal to that of the
Constitutional Court.
32
But when it comes to constitutional matters, the Constitutional Court
assumes a status higher than this court.
33
[78] In
National
Education Health and Allied Workers Union v University of Cape Town
and Others
,
34
the Constitutional Court considered the hierarchical structure of our
courts under the Constitution and stated:
‘
The
starting point is the Constitution. It recognises two highest Courts
of appeal and assigns specific jurisdiction to each. As
was pointed
out in
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex parte President
of the Republic of South Africa and Others
[2000] ZACC 1
;
[2000 (2) SA 674
(CC)], the Constitution makes provision for a
jurisdictional scheme different to that provided for in the interim
Constitution
(the Constitution of the Republic of South Africa Act
2000 of 1993). The SCA is the highest Court of appeal except in
constitutional
matters. Its jurisdiction in constitutional matters is
limited only by s 167(4), which reserves certain matters for the
exclusive
jurisdiction of this Court. However, its orders of
invalidity are subject to confirmation by this Court in terms of s
172(2)(a).
This Court is the highest Court in respect of all
constitutional matters, and decisions of all
other
Courts
on constitutional matters are accordingly subject to appeal to this
Court.’
35
[79] In
Walele
the Constitutional Court held that the case raised a constitutional
issue and therefore it had jurisdiction to hear it. It is that
court
which is the final arbiter on whether or not a particular matter
constitutes a constitutional issue. As Chaskalson P observed
in
Pharmaceutical
Manufacturers Association
:
36
‘
[J]udicial
review of the exercise of public power is a constitutional matter
that takes place under the Constitution and in accordance
with its
provisions. Section 167(3)(
c
)
of the Constitution provides that the Constitutional Court “makes
the final decision whether a matter is a constitutional matter.”

This Court therefore has the power to protect its own jurisdiction
and is under a constitutional duty to do so. One of its duties
is to
determine finally whether public power has been exercised lawfully.
It would be failing in its duty if it were to hold that
an issue
concerning the validity of the exercise of public power is beyond its
jurisdiction.’
37
[80] According
to the doctrine of judicial precedent this court is bound to follow
decisions of the Constitutional Court on constitutional
issues. In
particular this court is bound by the interpretation given by the
Constitutional Court to s 7(1)(b)(ii) in
Walele
,
regardless of whether in its view such interpretation is correct or
not. For even wrong decisions of the Constitutional Court
are binding
on this court until they are set aside by that court. This point was
made clear by the Constitutional Court in
Ex
parte Minister of Safety and Security and Others: In re S v Walters
and Another.
38
In that case Kriegler J stated:
‘
[T]he
Constitution enjoins all courts to interpret legislation and to
develop the common law in accordance with the spirit, purport
and
objects of the Bill of Rights. In doing so, courts are bound to
accept the authority and the binding force of applicable decisions
of
higher tribunals.
It
follows that the trial court in the instant matter was bound by the
interpretation put on s 49 by the SCA in
Govender
.
The Judge was obliged to approach the case before him on the basis
that such interpretation was correct, however much he may personally

have had his misgivings about it. High Courts are obliged to follow
legal interpretations of the SCA, whether they relate to
constitutional
issues or to other issues, and remain so obliged
unless and until the SCA itself decides otherwise or this Court does
so in respect
of a constitutional issue.’
39
[81] Although
the majority in the present case accepts that it is bound by
decisions of the Constitutional Court and that that court
is the
final arbiter of what constitutes a constitutional matter, they seek
to avoid the interpretation given to s 7(1)(b)(ii)
on the basis that
it does not form part of the
ratio
decidendi
of the
Walele
judgment. According to the majority, the Constitutional Court in
Walele
answered two questions, namely, whether objectors were entitled to a
hearing before building plans were approved and that there
had been
non-compliance with the jurisdictional requirements necessary for the
exercise of the power to approve plans. The majority
concludes that
it is only the question relating to an entitlement to a pre-decision
hearing which is relevant to determining whether
the interpretation
given to s 7(1)(b)(ii) formed part of the
ratio
or not.
40
[82] It
is not correct that in
Walele
the court answered two questions. It considered more questions that
related to the issues outlined in para 22 of the judgment in
that
case. Nor is it correct to say that it is only the issue relating to
a pre-decision hearing which is relevant to determining
whether
Walele’s
interpretation formed part of the ratio. In fact the opposite is
true. In order to determine the jurisdictional facts the
Constitutional
Court had to construe ss 6 and 7 of the Act. The
claim for a pre-decision hearing was clearly considered in the
context of s 3
of PAJA. It was the interpretation of that section by
the Constitutional Court which led to the finding that objectors have
no
right to be heard prior to the approval of building plans by a
local authority.
41
The reference to the issue of no hearing in para 55 of
Walele
,
was clearly made to emphasise the context in which s 7(1)(b)(ii) had
to be construed so as to comply with the requirements of
s 39(2) of
the Constitution. In this regard the Constitutional Court stated:
‘
This
interpretation is consistent with the obligation to promote the
spirit, purport and objects of the Bill of Rights. It demonstrates

that it is not only the landowner’s right of ownership which must
be taken into account, but also the rights of owners of neighbouring

properties which may be adversely affected by the erection of a
building authorised by the approval of the plans in circumstances

where they were not afforded a hearing. The section, if construed in
this way, strikes the right balance between the landowner’s

entitlement to exercise his or her right of ownership over property
and the right of owners of neighbouring properties’.
[83] The
reading of both the majority and the minority judgments in
Walele
reveal that the interpretation of s 7(1)(b)(ii) was an issue which
the court was called upon to consider. In support of the ground
of
review that the City of Cape Town had failed to comply with mandatory
procedural requirements, counsel for the applicant made
two
submissions which were recorded as follows in the majority judgment:
‘
Two
major submissions were made by the applicant under this ground of
review which was based on section 6(2)(b) of PAJA. First,
it was
argued that the decision-maker did not have before him a
recommendation as contemplated in sections 6(1) and 7(1) of the

Building Standards Act, prior to approving the plans. It was
submitted that the word “recommendation” in the context of these

sections means motivated advice which covers the merits and demerits
of the application for approval. Second, it was submitted
that
section 7(1)(b)(ii) of the Building Standards Act enjoins the
decision-maker to be satisfied, prior to approving the plans,
that
the erection of the building to which the plans apply will not
disfigure the area; be unsightly or objectionable; be dangerous
to
life or property; or derogate from the value of adjoining properties.
The existence of any one of these factors, it was contended,

disqualifies the plans concerned from approval. As the consideration
of these issues requires a proper interpretation of the relevant

sections of the Building Standards Act, it
is
convenient to commence with an overview of those provisions, which is
set out hereafter
.’
42
[84] The
minority judgment in
Walele
also interpreted s 7(1) and stated:
‘
Section
7(1)(a) makes plain that if the plans do not comply with the Act or
other applicable legislation, the municipality may not
approve them.
Similarly, the Building Control Officer must pay regard to the
requirements set out in s 7(1)(b) of the Act and consider
whether the
proposed building will probably or in fact: disfigure the area; be
unsightly or objectionable; derogate from the value
of adjoining or
neighbouring properties; or be dangerous to life or property. All of
these matters must be considered by the Building
Control Officer. The
Building Control Officer may not recommend the approval of the plans
if he or she is not satisfied that the
proposed building does comply
with the Act and all applicable legislation, or if he or she thinks
that the proposed building will
have or probably have any of the
harmful effects mentioned in section 7(1)(b)’.
43
Later
O’Regan ADCJ
–
writing for the minority
–
said:
‘
It
is clear that it is the Building Control Officer who has the
expertise to decide whether the plans are lawful or not and whether

they will probably or in fact produce the harmful consequences
described in section 7(1)(b). Finally, the extent of the discretion

conferred upon the ultimate decision-maker is narrow: it is clear
that
if
the proposed building is lawful and will not probably or in fact give
rise to the harmful consequences
contemplated in section 7(1)(b), the decision-maker has no discretion
to refuse the application.
Once
he or she knows that the plans are lawful and will not probably or in
fact give rise to a section 7(1)(b) harmful consequence
,
both issues upon which he or she will have received a recommendation
from the Building Control Officer, the plans must be approved’.
44
(Emphasis added).
[85] It
is apparent from the dicta quoted above from both the minority and
the majority judgment in
Walele
that the construction of s 7(1)(b) was an issue which was determined
by the Constitutional Court. It is also clear that the minority
in
Walele
also held the view that before approving the plans, the
decision-maker must be satisfied that ‘the plans are lawful and
will
not probably or in fact give rise to a section 7(1)(b) harmful
consequence’. Both judgments in
Walele
did not approach the interpretation of s 7(1) in the manner that the
majority in this court does.
[86] Cameron
JA says the interpretation given by the Constitutional Court in
Walele
does not form part of the ratio because on the facts of that case the
court did not have before it a review arising from a decision
in
defiance of the objective existence of the proscribed outcomes. He
then concludes that in
Walele
the
case made by the applicant was that the decision-maker had ‘no
material before him upon which he could properly make a determination

regarding the disqualifying factors the act enumerated’.
[87] I
disagree with Cameron JA’s characterisation of Mr Walele’s case
and his approach to the determination of the binding
force of a
judgment in a case such as
Walele
which interpreted statutory provisions. Indeed part of Mr Walele’s
case was that the approval of the building plans in question
did not
comply with the requirements of ss 6 and 7 regarding the presence of
the jurisdictional facts and that there were no reasonable
basis on
which the decision-maker could have been satisfied that none of the
harmful consequences listed in s 7(1)(b)(ii) would
be triggered by
the erection of the block of flats before granting the approval.
Whether or not s 7(1)(b)(ii) requires the decision-maker
to be so
satisfied necessarily called for the construction of the subsection.
Therefore one of the main issues in that case was
the correct
interpretation of ss 6 and 7 and the application of such
interpretation to the facts of that case. In so far as the

interpretation of s 7(1)(b)(ii) was concerned, the meaning endorsed
by the majority was first adopted by the high court and the
parties
before the Constitutional Court supported it.
45
The Constitutional Court interpreted the relevant sections with
reference to the language employed in them. The facts of the case
did
not come into play at that level. It was only after determining the
interpretation of the relevant provisions that such interpretation

was applied to the facts.
46
The same interpretation ought to apply to all cases involving the
approval of building plans.
[88] The
dictum by Schreiner JA on which Cameron JA relies must be read in
context. In that dictum Schreiner JA was dealing with
the issue of a
ratio in the context of grounds on which the decision of a single
judge was based. The learned judge was not dealing
with the question
of binding force in a judgment of a higher court over lower courts.
But he accepted as part of the binding force,
Feetham JA’s reasons
rejecting an alternative argument in
Rossmaur
Mansions (Pty) Ltd v Briley Court (Pty) Ltd
.
47
In
Levinson
Schreiner JA said:
‘
In
delivering the judgment of this Court, Feetham JA, first rejected the
argument that sec 29 was covered by the power given to
the Provinces
under Item 10 to legislate for “The establishment and
administration of townships”, and then went on to examine
the
alternative contention that the section was covered by Item 14….
In
holding that sec 29 was not protected by Item 14, Feetham JA, first
considered the form of the Item and as a result made the
assumption
in favour of the unsuccessful appellant that the sub-paragraphs
following the word “including” were not intended
to constitute an
exhaustive definition of “town-planning”, for the purpose of the
Item….
Taking
the view, accordingly, that sec 29, which obviously applied to
developed areas, could only be supported, if at all, by sub-para
(c)
of Item 14, Feetham JA, decided that this sub-paragraph could not
avail the appellant because it required that any provincial

legislation made under the powers given by it should provide for
compensation in cases of prejudice, and no compensation was provided

by the Ordinance for cases of prejudice caused by the operation of
sec 29’.
48
Schreiner JA
concluded by saying:
‘
So
approaching the matter it seems to me to be clear that what was said
in regard to the scope of town-planning in Item 14 in the
Rossmaur
case was part of the
ratio
decidendi
of that case…. Since the limiting statement in the
Rossmaur
case was part of the
ratio
decidendi
the question of its correctness does not, on the contention advanced
to us, arise.’
49
[89] With
reference to the
Rossmaur
judgment, it is clear that the words ‘
ratio
decidendi
’
are, used in a different context, ie in the context of the binding
authority. Schreiner JA accepted as binding the interpretation
of a
legislative enactment which was reached in the process of addressing
an alternative argument. In
Walele
,
as mentioned above, the Constitutional Court was asked to construe s
7(1)(b)(ii) as part of the main issues to be determined.
Once it is
accepted, as it must, that the interpretation of s 7(1)(b)(ii) was an
issue for determination in
Walele
,
there can be no justification for refusing to apply it to the facts
of the present case.
50
The views of this court on the correctness of such interpretation are
irrelevant.
[90] In
the light of the finding that the
Walele
interpretation is binding on this court, it is unnecessary for me to
consider whether the findings made by the majority in paras
33-35 are
correct or not. Suffice it to say, in my view, they are based on an
incorrect reading of the
Walele
judgment. I will now proceed to apply the interpretation adopted in
that case to the facts of the present case so as to determine
whether
the approval falls to be set aside.
[91] The
facts of this case are set out in the majority judgment and therefore
I need not repeat them. It is, however, clear that
the decision-maker
had investigated whether the execution of the plans would lead to
consequences prohibited by s 7(1)(b)(ii).
Following this
investigation and the alterations which were effected on the plans,
the decision-maker was satisfied that the execution
of the plans will
not lead to any of the harmful consequences. Accordingly there was
compliance with s 7(1)(b)(ii). The allegation
by the appellant to the
effect that the erection of the concerned building derogated from the
value of its property was sharply
disputed by the respondents. Since
these are motion proceedings, the appellant has failed to establish
the alleged derogation.
[92] For
these reasons I would also dismiss the appeal with costs, including
the costs of two counsel.
____
________________
C N JAFTA
JUDGE OF APPEAL
CAMERON
JA
(Scott, Heher and Combrinck JJA concurring):
[
93] I
have had the benefit of reading the judgments of my colleagues Heher
JA and Jafta JA. They agree that the appeal must fail,
but differ in
their approach to s 7 of the National Building Regulations and
Building Standards Act 103 of 1977 (the Act). Their
difference holds
great practical consequence for local authorities. It centres on s
7(1)(b). Heher JA adopts the illuminating
exposition Mr Olsen
advanced for eThekwini Municipality, the amicus. He holds that it is
incorrect to approach the provision as
if it requires local
authorities to bar building plans unless they are positively
satisfied that the building proposed will
not
cause
one of the proscribed outcomes (area-disfigurement; unsightliness or
objectionability; value-derogation; danger to life or
property).
Rather, the statute requires them to bar plans only if positively
satisfied that one of the proscribed outcomes
will
or will probably
eventuate (paras 21 and 22). In other words, if uncertain or not so
satisfied, the local authority must give plans that otherwise
comply
with the statute the go-ahead.
[
94] Jafta
JA, by contrast, rejects this interpretation. He does not accept
that s 7(1)(b) means that the decision-maker is obliged
to refuse to
approve building plans only if it is satisfied that the erection of
the building will lead to harmful consequences.
Instead, his approach
entails that even where consideration of the relevant facts leaves
the decision-maker in doubt, it must reject
the plans. And it
follows from his interpretation that, where the objecting neighbour
can prove objectively that the proscribed
outcomes exist, a review
application direct to court can succeed on this ground alone.
[
95] The
difference is significant. The approach of Heher JA puts a premium
on the decision-maker’s (properly formed) state of
mind regarding
the proscribed outcomes. The focus is not whether the objecting
neighbour can later satisfy a court that the proscribed
outcomes will
or probably will eventuate. It is whether the material before the
decision-maker, at the time of the decision, was
such as should
properly have satisfied him or her that those outcomes would or
probably would eventuate.
[
96] The
practical effect of this approach will be to free building approvals
from many potential statutory challenges, by draining
muddy water
from the statutory quagmire in which local authorities currently
operate. The muddiness arises from the fact – as
the amicus
persuasively sketched in argument – that while sub-para (a) of s
7(1) deals with statutory requirements that are generally
capable of
sure application, sub-para (b)(ii)(aaa) deals with more nebulous
consequences that spring from the nature and appearance
of the
proposed building, such as disfigurement, unsightliness,
objectionability, and value – some of which import subjective

evaluation.
[
97] It
is precisely this distinction, the amicus argued, that explains the
legislative shift of balance between (a) and (b), and
which make this
interpretation essential if the legislation is to be practically
workable in hard-pressed local authority town-planning
departments.
Recognising this, the approach of Heher JA gives effect to the plain
shift in legislative crafting that the different
wording of the two
sub-paragraphs reflects.
[
98] In
aid of his contrasting interpretation, Jafta JA invokes not only what
he considers the ‘gross absurdity’ he considers
would follow from
Heher JA’s interpretation, but the constitutional setting in which
the provision must be interpreted, and,
most importantly, the
precedential force of the recent decision of the Constitutional Court
(CC) in
Walele
v City Council of Cape Town
.
51
(Jafta JA is himself the author of the majority judgment in
Walele
,
but I express no disrespect when I point out that he is no more
authoritative an exponent of it than anyone else: the judgment
stands
on its own as a cognizable addition to our legal landscape, its
meaning and effect to be interpreted according to language,
legal
precepts and the Constitution.)
[
99] It
will already be evident that, like Heher JA, I endorse the
interpretation of the amicus. But I write separately to explain
my
respectful view that the majority decision in
Walele
does not obstruct the path to endorsing that interpretation. I
therefore differ from Jafta JA’s view that the binding ratio
of
Walele
precludes adopting the amicus’s approach to the provision in issue.
Ratio
decidendi vs obiter dictum in
Walele
[
100]
The doctrine of precedent, which requires courts to follow the
decisions of coordinate and higher courts in the judicial hierarchy,

is an intrinsic feature of the rule of law, which is in turn
foundational to our Constitution.
52
Without precedent there would be no certainty, no predictability and
no coherence. The courts would operate in a tangle of unknowable

considerations, which all too soon would become vulnerable to whim
and fancy. Law would not rule. The operation of precedent,
and its
proper implementation, are therefore vital constitutional questions.
[
101] However,
it is well established that precedent is limited to the binding basis
(or
ratio
decidendi
)
of previous decisions. The doctrine obliges courts of equivalent
status and those subordinate in the hierarchy to follow only
the
binding basis of a previous decision. Anything in a judgment that is
subsidiary is considered to be ‘said along the wayside’,
or
‘stated as part of the journey’ (
obiter
dictum
),
and is not binding on subsequent courts.
[
102] At
this tender stage of our legal development, the doctrine of precedent
has special importance. The CC has been accused of
disregarding its
own decisions without convincing reason (without, indeed,
acknowledging that it has done so).
53
That is a grave charge, and this court should not lay itself open to
the equivalent or more serious complaint that it is violating
the
rule of law by illegitimately disregarding or evading CC precedents.
The CC is not only the highest court in constitutional
matters
(Constitution s 167(3)(a)); it is itself the final arbiter of whether
a matter is a constitutional matter (s 167(3)(c)).
This means that
other courts, including the SCA, must follow the binding basis of its
decisions in all cases in which it has assumed
jurisdiction.
[
103] The
most authoritative and illuminating exposition in our law of the
distinction between what is binding in a previous decision,
and what
is stated ‘by the way’, is that of Schreiner JA in
Pretoria
City Council v Levinson
.
54
He referred to an earlier explanation by De Villiers CJ in
Collett
v Priest
,
55
who stated that the ratio of a decision ‘is the principle to be
extracted from the case’, and ‘not necessarily the reasons
given
for it’. Schreiner JA does not seem to have thought
Collett’s
reasons/ratio
distinction convincing, for he waved it aside as depending ‘mainly
on the meaning attached to those words in their
context by the
users’. He proceeded instead to suggest a more secure and enduring
basis of distinction (citation omitted):
‘
[W]here
a single judgment is in question, the reasons given in the judgment,
properly interpreted, do constitute the
ratio
decidendi
,
originating or following a legal rule, provided (a) that they do not
appear from the judgment itself to have been merely subsidiary

reasons for following the main principle or principles, (b) that they
were not merely a course of reasoning on the facts … and
(c) (which
may cover (a)) that they were necessary for the decision, not in the
sense that it could not have been reached along
other lines, but in
the sense that along the lines actually followed in the judgment the
result would have been different but for
the reasons.’
56
[
104] In
Levinson
,
Schreiner JA applied the ratio/obiter distinction to hold that the
court’s previous decision in
Rossmaur
Mansions (Pty) Ltd v Briley Court
(Pty)
Ltd
1945
AD 217
was binding on it.
Rossmaur
held that s 29 of a Transvaal provincial ordinance was ultra vires
under Item 10 of a schedule to the Financial Relations Act 10
of
1913. In addition,
Rossmaur
examined and rejected an alternative contention that s 29 of the
Ordinance was protected by Item 14 of the schedule to the Act.

Lower-court judges had held that part of the court’s reasoning was
not binding because ‘apparently it was thought that the
statement
[in
Rossmaur
as to the scope of town-planning in Item 14] was unnecessary for the
decision, possibly only in the sense that it might have been
reached
by a different line of reasoning’.
57
After the exposition quoted above, Schreiner JA rejected the lower
courts’ conclusion regarding the case’s ratio:
‘
So
approaching the matter it seems to me to be clear that what was said
in regard to the scope of town-planning in Item 14 in the
Rossmaur
case was part of the
ratio
decidendi
of that case.’
58
This
was because (Schreiner JA went on to point out), had
Rossmaur
not held that Item 14 limited town-planning to undeveloped areas, the
Rossmaur
court would have concluded that s 29 ‘was supportable by the powers
given by Item 14’ and thus that the section was not ultra
vires but
valid. It followed that the ‘limiting statement’ in
Rossmaur
regarding Item 14 was part of the essential basis of the decision,
and binding on subsequent courts.
59
In other words, the court’s reasoning on the scope of Item 14 was
essential to its decision, since had it held that Item 14
was
broader, the decision would have gone the other way.
[
105] What
then is the binding basis of the
Walele
decision?
60
According to Schreiner JA’s approach, the reasons given creating
or following a legal rule are binding on this court provided
they
were not merely subsidiary to the main principle, that they were not
merely linked the incidental facts of
Walele
,
and that they were necessary for the decision in the sense that along
the lines the court actually followed the result would have
been
different but for those reasons.
[
106] Schreiner
JA’s last qualification is in my view of decisive importance in
extracting
Walele’s
ratio.
That entails distilling the reasons the
Walele
court gave that were necessary for the outcome in the sense that
along
the lines the majority actually
followed
the result would have been different but for those reasons
.
[
107] On
this approach, fairly and properly applied, the
ratio
decidendi
or binding basis of decision in
Walele
is in my view that – (i) the rights of neighbouring owners are not
affected by the grant of building approval under s 7 of the
Act, and
it is therefore not necessary for them to exhaust the remedy provided
by s 62 of the Act before instituting review proceedings;(ii)
it is
the decision-maker him- or herself, and not merely the building
control officer, whose satisfaction is pivotal under s 7
of the Act
(this is the basis on which the decision of the court below was
reversed, and the nub of the difference between the
majority and the
minority in
Walele
);
and(iii) the provision demands that the decision-maker must be
‘satisfied’ in relation to the matters set out in sub-sub-paras

(aa) and (bb).
[
108] As
to (iii), the CC’s preponderant opinion was that elaborated in the
judgment of Jafta JA in the present case, namely that
the
decision-maker must refuse building approval unless satisfied that
the prohibited consequences
will
not
eventuate. But that was not the majority’s unequivocal view. The
majority also expressed the contrary view, namely that the

decision-maker must ‘refuse to grant approval’ in those cases
where he or she is satisfied ‘that one or more of the disqualifying

factors
will
be
triggered’ (
Walele
para 66; my italics). That exposition accords with the position the
amicus urged, with the judgment of Heher JA, and with what
I regard
as the correct approach on the words and context of the statute. I
should add that it does not seem to me that any considerations
of
constitutional interpretation or adverse effect militate against this
view; nor that any gross absurdity results: on the contrary,
it seems
to me that compelling practical considerations and good sense support
this approach.
[
109] As
Heher JA however points out, the preponderant significations in the
majority judgment in
Walele
are to the contrary. The question is therefore whether they are
binding on this court, and on the CC in a future case. In my

respectful view they are not. The court in
Walele
did not have before it a review arising from a decision in defiance
of the objective existence of the proscribed outcomes. On
the
contrary, the case the applicant made, and which the majority upheld,
was that the decision-maker himself, unlike the building
control
officer, had no material before him upon which he could properly make
a determination regarding the disqualifying factors
the Act
enumerates.
[
110]
Walele
was thus not a case where, in conflict with objectively demonstrable
reality, building plans were approved in disregard of disqualifying

factors (and thus in violation of the objector’s ‘rights’).
Nor was it a case where the decision-maker, in conflict with
the
approach Jafta JA endorses, granted approval even though uncertain
whether the prohibited consequences would or probably would
result.
On the contrary, it was a case where the decision-maker had no
statutorily relevant opinion at all, since he relied solely
on a
recommendation by the building control officer. He thus failed to
form his own opinion, as the statute (according to the
majority
judgment) required.
[
111]
It was for this very reason that the CC granted an order that the
matter be remitted to the city council ‘for consideration
afresh’.
That order has pivotal significance in applying Schreiner JA’s
distinction.
Walele’s
ratio
encompasses only those reasons that were necessary for the decision
in the sense that
along
the lines the majority actually followed the result would otherwise
have been different
.
[
112] Had
the applicant in
Walele
proved that, objectively, the prohibited consequences would or were
likely to ensue, or had he proved that the decision-maker granted

approval in defiance of material on which he should have been at
least doubtful that the consequences would ensue, the CC would
have
been in a position to have decided the matter itself. It did not.
Instead, it sent it back to the decision-maker.
[
113] The
order the CC granted determines the precedential meaning of
Walele
.
It means that neither the actual decision in
Walele
,
nor the
ratio
decidendi
underlying it, encompassed a case of decision-making in defiance of
the objective existence of disqualifying factors, or the existence
of
factors which should have satisfied the decision-maker in accord with
the test Jafta JA propounds. Instead, it was a case where
no
decision was made at all, because statutorily relevant information
was not before the decision-maker.
[
114] It
is true that in first finding that the applicant’s rights had not
been infringed (and hence that the domestic remedies
objection was
bad) the CC expressed a view on the construction of sub-para (b) of
section 7. However, as I have tried to show,
that view was not
determinative of the outcome. The approach espoused by the amicus,
and endorsed by Heher JA, also permits the
objector to review
unstatutory decision-making (though it would avowedly be more
difficult to do so). Had the CC endorsed the
approach of the amicus
and Heher JA, its decision would have been no different. The
particular balance it attributed to the provision,
and its view as to
the exact basis on which the objector may proceed directly to court
(based, as Heher JA has shown, on a misconception
arising from this
court’s formulation of its judgment in
Paola
v Jeeva
[2003] ZASCA 100
;
2004
(1) SA 396
(SCA)), did not affect the outcome of
Walele
in the sense that the decision would have been different had the
other view been taken. The objector’s ‘rights’ would still

have been unaffected, and no domestic remedies obligation triggered.
61
[
115] It
follows from this that the opinions expressed in
Walele
,
echoing those seemingly expressed by this court
Paola
v Jeeva
,
to the effect that the mere existence of such grounds by itself
entitles a neighbour to set aside the decision on review, were

incidental to the decision of the court, and formed no part of its
ratio. It further follows that the view the CC expressed in
Walele
as to the precise nature of the opinion that the decision-maker is
required to form under s 7 was not in issue in the case. Since
there
was no decision at all, the CC’s views on that matter were
indeterminative of the outcome, which would have been no different
if
the CC held the view that the amicus propounds here.
[
116] The
views the CC expressed on that point, though persuasive as coming
from the highest court in the land on constitutional
matters (a
jurisdiction exercised in
Walele
),
are therefore not automatically binding on other courts, nor on the
CC itself, which will be free to re-consider the matter should
it
arise in that form before it. Presumably, the CC will in such a case
have the benefit of the argument the amicus advanced before
us, as
well as of Heher JA’s elucidation of the decision in
Paola
v Jeeva
,
whose expression seems to me to have been the source of much trouble
in both
Walele
and this case.
[
117] It
follows that despite the high authority a considered expression of
opinion by the country’s highest court in constitutional
matters
should enjoy, I consider that this court is free, with proper
deference to the CC, and with fidelity to the rule of law,
to endorse
the approach the amicus advocated. That approach is pivotal to the
outcome of this case. Here this court is required
to assess the
evidence on which the applicant claims the decision of the local
authority should be reviewed. For that purpose
we are obliged to
determine the proper approach the decision-maker should adopt. On
Heher JA’s analysis of the evidence, with
which I agree, the
applicant has failed to show that the decision-maker should have
concluded, at the time of his decision, and
on the material before
him, that the proscribed outcomes would or would probably eventuate.
[
118] For
these reasons, I concur with the order proposed in both judgments.
_____
______________
E CAMERON
JUDGE OF APPEAL
SCOTT
JA (Cameron, Heher and Combrinck concurring):
[119] I
agree with the interpretation which my colleagues Heher and Cameron
place on s 7 of the National Building Regulations and
Building
Standards Act 103 of 1977. I agree, too, that the appeal must fail. I
disagree with my colleague Jafta's interpretation
of that section. My
reasons for doing so are briefly as follows. The meaning Jafta JA
places on the section, in a nutshell, is
that the decision-maker is
required to approve building plans:
(a) if
it is satisfied that the plans in question comply with the
requirements of the Act and any other applicable
law (s
7(1)(a)), and
(b) if
it is also satisfied that the erection of the buildings to which the
plans relate will not probably or in fact cause any
of the harmful
consequences listed in s 7(1)(b)(ii).
But
this is not what the section says. If it were, the section would
simply have specified the requirements for the granting of
the
decision-maker's approval. But the section does not do that; it draws
a distinction between when the decision-maker 'shall
grant its
approval' and when it 'shall refuse to grant its approval'.
62
The reason for the legislature doing so is obvious. It wished to make
it clear that once the requirements of s 7(1)(a) had been
satisfied
the decision-maker was to refuse to grant its approval only if it was
satisfied that the building will probably or in
fact cause one or
other of the harmful consequences listed in s 7(1)(b)(ii). This is
very different from requiring the decision-maker
to be satisfied
before granting its approval that one or other of the harmful
consequences will not result. It is one thing for
the decision-maker
to refuse to grant approval if it is satisfied that there will be,
for example, a derogation from the value
of neighbouring properties.
It is quite another to require the decision-maker to be satisfied
that there will be no such derogation
before granting approval.
[120] My
colleague Jafta categorizes the interpretation placed on the section
by Heher JA and Cameron JA as 'the literal approach'
and argues that
it is 'not suitable for construing a provision such as s 7 ' as it
'defeats the purpose' of s 7 and does not comply
with the obligation
imposed on the courts by s 39(2) of the Constitution to interpret
legislation in a manner that would 'promote
the spirit, purport and
objects of the Bill of Rights'. But what is that purpose? I would
venture to suggest that the section was
carefully formulated in the
way it was so as to afford protection to neighbouring property owners
while at the same time not imposing
an unreasonable burden on an
applicant whose plans comply with 'the requirements of the Act and
any other applicable law'. What
the section seeks to do is balance
the rights of an applicant against those of neighbouring property
owners. It is no doubt true
that the section as formulated favours
the applicant rather than neighbouring property owners. But s
7(1)(b)(ii) only becomes relevant
once the plans comply with 'the
requirements of the Act and any other applicable law'. All property
owners run the risk of neighbouring
owners developing their
properties to the extent permitted by law. Merely because one
develops one's property first ought not to
confer an absolute right
to dictate what a neighbour may or may not do. There are practical
reasons, too, for the bias in favour
of an applicant. If the position
were otherwise, ie if the decision-maker were required to be
satisfied that the erection of the
building in question would not
probably or in fact cause the harmful consequences listed in s
7(1)(b)(ii), the decision-maker would
require the services of expert
valuers for each and every application in which value was in issue.
Moreover, for the reasons set
out in paras 30 and 31 of Heher JA's
judgment the valuer's task would be no easy matter and one can
readily imagine the disputes
that would ensue. Given that the second
respondent handles something in the region of 1500 applications a
month, inordinate delays
and administrators logjams would be
inevitable.
[121] What
my colleague Jafta in effect seeks to do is to rewrite the section so
as to impose a heavier burden on applicants in
order to favour
neighbouring property owners. I can see no justification for this.
First, it is contrary to the manifest intention
of the legislature;
second, there is nothing in the Act to suggest that the purpose of s
7 was anything other than to achieve the
result apparent from its
ordinary meaning and third, there is nothing unconstitutional or
contrary to the spirit, purport and object
of the Bill of Rights
about the section that would justify ignoring its plain meaning.
____________________
D
G SCOTT JUDGE OF APPEAL
Appearances:
F
or
the appellant: P M Kennedy SC
I
nstructed
by: Eugene Sklar Attorney, Sydenham Lovius Block Attorneys,
Bloemfontein
F
or
respondents: (1) No appearance
(
2) A
E Franklin SC
D
L Wood
I
nstructed
by: (1) A L Mostert & Company Inc, Bryanston Claude Reid,
Bloemfontein (2) Moodie and Robertson,
Johannesburg
Claude
Reid, Bloemfontein
A
micus
curiae: P J Olsen SC
A
A Gabriel
I
nstructed
by: Linda Mazibuko & Associates, Durban Matsepes,
Bloemfontein
1
‘4(1)
No person shall without the prior approval in writing of the local
authority in question, erect any building in respect
of which plans
and specifications are to be drawn and submitted in terms of this
Act.’
2
‘7(1)
If a local authority, having considered a recommendation referred to
in section 6 (1)
(a)
─
(a)
is
satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall

grant its approval in respect thereof;
(b)
(i) is
not so satisfied; or
(ii) is satisfied that the
building to which the application in question relates─
is
to be erected in such manner or will be of such nature or
appearance that─
(aaa)
the
area in which it is to be erected will probably or in fact be
disfigured thereby;
(bbb)
it
will probably or in fact be unsightly or objectionable;
(ccc)
it
will probably or in fact derogate from the value of adjoining or
neighbouring properties;
will
probably or in fact be dangerous to life or property,
such
local authority shall refuse to grant its approval in respect
thereof and give written reasons for such refusal:
Provided
. . . ’
3
See
particularly
Paola
v Jeeva
[2003] ZASCA 100
;
2004
(1) SA 396
(SCA);
Clark
v Faraday
2004
(4) SA 564(C)
;
Walele
v The City of Cape Town
2008
(6) SA 129
(CC);
[2008] ZACC 11.
Also, the insightful
The
value of a neighbour’s view
by
Prof Henk Delport, 25
Obiter
(2004).
4
See
note 3 above.
5
Whether
as
obiter
dicta
or as
rationes
decidendi
will be considered below.
6
See
note 3.
7
‘Once it is clear, as
it is on the facts presently before us, that the execution of the
plans will significantly diminish the
value of the adjoining
property, then, on its plain meaning, the section prevents the
approval of the plans.’ I discuss the
import of this statement of
the law below.
8
See
note 3.
9
‘
If
the applicant in this case had proved that the erection of the flats
devalued his property, he could have succeeded in having
the
approval of the plans in question set aside on that basis alone.’
10
‘
Accordingly
the decision-maker must be satisfied of two things before granting
approval. The first is that he or she must be satisfied
that there
is compliance with the necessary legal requirements. Secondly, he or
she must also be satisfied that none of the disqualifying
factors in
s 7(1)(b)(ii) will be triggered by the erection of the building
concerned. This is so because any approval of plans
facilitating the
erection of a building which devalues neighbouring properties, for
example, is liable to be set aside on review.’
11
An
adequate response to the first two propositions will, unfortunately,
require a analysis of certain aspects of
Walele
.
In undertaking that task I am very much aware of the collegial and
legal relationships between the respective courts (particularly
as
regulated by s 167 (3) of the constitution) and the respect which
this Court owes to all pronouncements of the Constitutional
Court.
12
See
regulation A16 of the National Building Regulations published under
GNR 2378 in GG 12780 of 12 October 1990 as amended, which
lays down
minimum educational qualifications of a building control officer.
13
‘It
follows that the decision-maker had failed to properly determine
that none of the disqualifying factors would be triggered
by the
erection of the block of flats.’
14
As to
which see
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at para 45 and the comment of Prof Cora Hoexter on
Rustenburg
Platinum Mines (Limited) v Commissioner for Conciliation, Mediation
and Arbitration
2007 (1) SA 576
(SCA) at para 31 in
Administrative
Law in South Africa
106-7.
15
For
the principles see
Collett
v Priest
1931
AD 290
at 302 and
Pretoria
City Council v Levinson
1949
(3) SA 305
(A) at 317.
16
Section
39(2) provides: ‘When interpreting any legislation, and when
developing the common law or customary law, every court,
tribunal or
forum must promote the spirit, purport and objects of the Bill of
Rights.’
17
Walele
v The City of Cape Town and Others
2008 (6) SA 129
(CC);
[2008] ZACC 11.
18
In
Department
of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC) at para
[53]
Moseneke DCJ said:
‘
[I]n
construing “as a result of past racially discriminatory laws or
practices” in its setting of s 2(1) of the Restitution
Act, we are
obliged to scrutinise its purpose. As we do so, we must seek to
promote the spirit, purport and objects of the Bill
of Rights. We
must prefer a generous construction over a merely textual or
legalistic one in order to afford claimants the fullest
possible
protection of their constitutional guarantees.’
19
[2008]
ZACC 15
at para 103, a judgment delivered on 18 September 2008.
20
Section
4 provides: ‘(1) No person shall without the prior approval in
writing of the local authority in question, erect any
building in
respect of which plans and specifications are to be drawn and
submitted in terms of this Act. (2) Any application
for approval
referred to in subsection (1) shall be in writing on a form made
available for that purpose by the local authority
in question. (3)
Any application referred to in subsection (2) shall– (a) contain
the name and address of the applicant and,
if the applicant is not
the owner of the land on which the building in question is to be
erected, of the owner of such land;
(b) be accompanied by such
plans, specifications, documents and information as may be required
by or under this Act, and by
such particulars as may be required by
the local authority in question for the carrying out of the objects
and purposes of this
Act. (4) Any person erecting any building in
contravention of the provisions of subsection (1) shall be guilty of
an offence
and liable on conviction to a fine not exceeding R100 for
each day on which he was engaged in so erecting such building.’
21
Ibid
at para 21.
22
Ibid
at para 23.
23
1999
CLR 77
(W) at 84-5.
24
See
Fraser
v ABSA Bank Ltd
(
National
Director of Public Prosecutions as Amicus Curiae
)
[2006] ZACC 24
;
2007 (3) SA 484
(CC) para 43 and
Investigating
Directorate : Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others:In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) para [21] where the Constitutional Court
emphasised that s 39(2) of the Constitution required all statutes
to be interpreted
through the prism of the Bill of Rights.
25
[2006] ZACC 6
;
2007 (6) SA 350
(CC) at para 27.
26
[2004] ZACC 15
;
2004
(4) SA 490
(CC).
27
Ibid para 92.
28
See
Walele
above n 2 paras 55-56.
29
Majority judgment para 35.
30
Ibid para 36.
31
Section 6(2)(f) provides: ‘A court or tribunal has the power to
judicially review an administrative action if
–
(a) …. (f) the action itself – (i) contravenes a law or is not
authorised by the empowering provision.’
32
See s
168(3) of the Constitution.
33
See s
167(3) of the Constitution.
34
2003
(3) SA 1
(CC).
35
Ibid
at para 21. See also
National
Union of Metalworkers of SA and Others v Fry’s Metals (Pty) Ltd
2005 (5) SA 433
(SCA) at para 15.
36
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC).
37
Ibid
at para 51.
38
[2002] ZACC 6
;
2002
(4) SA 613
(CC).
39
Ibid
at paras 60-61.
40
See
the majority judgment at para 35.
41
See
Walele
above n 2 at paras 27-42.
42
See
Walele
above n 2 at para 46.
43
Walele
above n 2 para 90.
44
Walele
aboved n 2 para 115.
45
Above
n 2 paras 56 and 59.
46
Ibid
paras 61 and 63.
47
1945
AD 217.
48
Pretoria
City Council v Levinson
1949 (3) SA 305
(A) at 313-4.
49
Ibid
at 317.
50
Above n 25 para 61.
51
2008 (6) SA 129
(CC);
[2008] ZACC 11.
52
Constitution Chapter 1, Founding Provisions, s 1 – the Republic of
South Africa is founded on values that include (c) ‘Supremacy
of
the Constitution and the rule of law’.
53
Fredericks v MEC for
Education and Training, Eastern Cape
[2001] ZACC 6
;
2002 (2) SA 693
(CC) versus
Chirwa
v Transnet Ltd
2008
(4) SA 367
(CC);
[2007] ZACC 23
(as to which, see
Makambi
v MEC for Education, Eastern Cape
2008 (5) SA 449
(SCA);
[2008] ZASCA 61
per Nugent JA paras 21-41);
Prophet v National
Director of Public Prosecutions
2007
(6) SA 169
(CC) (September 2006) versus
Mohunram
v National Director of Public Prosecutions
2007 (4) SA 222
(CC);
[2007] ZACC 4
(March 2007) (as to which, see
Warren Freedman ‘Constitutional Application’
(2008) 21
SACJ
134
at 141f). For general criticism bearing on the court’s
fidelity to law, see Stu Woolman ‘The Amazing, Vanishing Bill of

Rights’
(2007) 124
South
African Law Journal
762-794.
54
1949 (3) SA 305
(A).
55
1931 AD 290
at 302.
56
1949 (3) SA 305 (A) 317.
57
1949 (3) SA 305
(A) at 316.
58
1949 (3) SA 305
(A) at 317.
59
1949 (3) SA 305
(A) at 317.
60
See
too
Fellner
v Minister of the Interior
1954 (4) SA 523
(A) per Greenberg JA at 537-538 and Schreiner JA at
542; Saunders (ed)
Words
and Phrases legally defined
(3 ed, 1990 sv ‘ratio decidendi’ [referring to Halsbury];
Halsbury’s
Laws of England
(4 ed, reissue) vol 37 para 1237; Jules Coleman and Scott Shapiro
(eds)
The
Oxford Handbook of Jurisprudence and Philosophy of Law
pages 596-597.
61
A point brought vividly to the fore by the majority’s unqualified
endorsement (para 45) of the decision of Lewis AJ on this
point in
Odendaal v Eastern
Metropolitan Local Council
1999
CLR 77
(W), of which the majority’s contested approach to s 7
formed no part.
62
Section
7 (1) is quoted in footnote 2 of Heher JA's judgment.