Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others (112/2019) [2020] ZASCA 15; [2020] 2 All SA 330 (SCA) (24 March 2020)

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[2020] ZASCA 15
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Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others (112/2019) [2020] ZASCA 15; [2020] 2 All SA 330 (SCA) (24 March 2020)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 112/2019
In
the matter between:
BO-KAAP
CIVIC AND RATEPAYERS ASSOCIATION

FIRST APPELLANT
35
ON ROSE BODY
CORPORATE

SECOND APPELLANT
THE
EXECUTORS OF THE ESTATE OF THE LATE
FABIO
TODESCHINI

THIRD APPELLANT
and
CITY
OF CAPE
TOWN

FIRST RESPONDENT
MUNICIPAL
PLANNING TRIBUNAL OF THE CITY OF
CAPE
TOWN

SECOND RESPONDENT
MAYOR
OF CAPE
TOWN

THIRD RESONDENT
BUITENGRACHT
PROPERTIES (PTY) LTD

FOURTH RESPONDENT
HERITAGE
WESTERN CAPE

FIFTH RESPONDENT
Neutral
citation:
Bo-Kaap Civic and
Ratepayers Association and Others v City of Cape Town and Others
(case no 112/2019)
[2020] ZASCA 15
(24
March 2020)
Coram:
Navsa, Saldulker, Makgoka and Plasket
JJA and Eksteen AJA
Heard:
21 February 2020
Delivered:
24 March 2020
Summary:
Approval by local authority and Mayor of land use application –
challenged on the basis of unreasonableness, irrationality
and error
of law – nature of judicial review discussed – deference
to expertise of decision makers – no reviewable
irregularity –
costs in relation to asserted constitutional litigation discussed.
ORDER
On
appeal from
: Western Cape Division of
the High Court, Cape Town (Le Grange J sitting as court of first
instance):
1.
The application to lead further evidence on
appeal is dismissed with costs, including the costs of two counsel.
2.
The appeal is dismissed with costs,
including the costs of two counsel.
JUDGMENT
Navsa
JA (Saldulker, Makgoka and Plasket JJA and Eksteen AJA concurring):
[1]
In this case the record comprises 16 volumes and extends to 2715
pages. The core issue to be addressed is rather more compact.
It is,
simply, whether the first respondent, the City of Cape Town (the
City), a metropolitan municipality established in terms
of the
Municipal Structures Act 117 of 1998, through its Municipal Planning
Tribunal, the second respondent and, ultimately, through
its Mayor,
the third respondent, by way of an internal appeal process, lawfully
approved land use applications by the fourth respondent,
Buitengracht
Properties (Pty) Ltd (the Developer). The land use applications were
in relation to the construction of an eighteen-storey
building, 60
metres tall, in the immediate vicinity of a well-known international
and local tourist destination, which is also
a heritage sensitive
area, the Bo-Kaap. Put differently, the question for adjudication is
whether the City and the Mayor had due
regard to heritage concerns,
as provided for in applicable legislation and policies, and whether
they complied with administrative
law principles. There are, of
course, allied questions concerning the propriety of simultaneous
associated approvals by the City,
such as the consolidation of the
two erven on which the construction is envisaged to take place, the
approval of 310 parking bays,
with attendant traffic consequences,
etc but these are inextricably linked to the core issue. Also linked
is a title deed condition
relating to the Bo-Kaap attached to one of
the erven, which will be dealt with in due course.
[2]
The Western Cape Division of the High Court, Cape Town (Le Grange J),
adjudicating an application by the three appellants, for
the review
and setting aside of the approvals and of the Mayor’s decision
on appeal, held that they were all lawful and dismissed
the
application with costs, including the costs of two counsel. Heritage
Western Cape (HWC), a provincial heritage agency established
in terms
of s 23 of the National Heritage Resources Act 25 of 1999 (the NHRA),
had intervened in the proceedings in the high court
and supported the
review application. In addition, HWC had sought an order declaring
that the intended development could not proceed
without a permit
issued in terms of s 27(18) of the NHRA
[1]
.
The application for that order was also dismissed. It is against
those findings that the present appeal is directed. The appeal
is
before us with the leave of the court below. HWC, however, did not
participate in this appeal.
[3]
At the outset it is necessary to have regard to the history of the
Bo-Kaap. A brief history, extracted in the main from what
was
provided by the appellants, is set out hereafter.
The
Bo Kaap was built largely by and for the artisans of Cape Town
between 1790 and 1825. It extends over 34 hectares and is bounded
by
Buitengracht, Rose, Carisbrook and Strand Streets, and the slopes of
Signal Hill.
Although
the Bo-Kaap has over centuries been home to people of various origins
and from different regions, the area is closely associated
with the
traditionally Malay community of the Cape, which is predominantly
Muslim. The ancestors of the majority of Muslim people
in the Cape
arrived from 1658 onwards as slaves, or political exiles from East
Africa and South East Asia (India, Indonesia, Java,
Malaysia and Sri
Lanka). Many of them were brought by the Dutch and were skilled
craftsmen, artisans, famous scholars and religious
leaders.
The
first mosque at the Cape, the Auwal Mosque, was built in the Bo-Kaap
neighbourhood in 1804 and is still in use.
The
history of the Bo-Kaap reflects the political processes in South
Africa during the apartheid years. It was declared a residential
area
exclusive for Cape Malays under the Group Areas Act 41 of 1950 and
people of other racial classifications were forced to leave.
The
neighbourhood has been described as being atypical. In the
mid-twentieth century, most working class people in South Africa
were
moved to the periphery of the cities under the Slums Act 53 of 1934
and neighbourhood improvement programmes. Housing in the
Bo-Kaap is
made up of long continuous rows of small, mostly single-storeyed,
flat roofed, parapetted houses; staggered to step
down the slopes of
Signal Hill. All of the houses face onto the street, with access to
the front door immediately off the pavement
via the narrow ‘stoeps’
which often have low brick walls and stoep-seats at each end. The
parapets are decorated with
mouldings.
Virtually
no houses in the Bo-Kaap have garages and people utilise street
parking to park their vehicles from early evening until
the next
morning. Rose Street is one of the roads that is particularly
affected by this. Street parking in the Bo-Kaap, and particularly

Rose Street, is not in any event limited to the period after the
close of the working day. Many people who work in the area of
the
Central Business District (CBD) bordering the Bo-Kaap utilise
available street parking in the Bo-Kaap to park their vehicles
during
the working day instead of having to pay for parking.
[4]
I now turn to have regard to two other areas of heritage significance
in the vicinity of the proposed development of the Bo-Kaap,
namely,
Riebeeck Square and Heritage Square. Riebeeck Square lies between
Buitengracht and Breë Streets and is also bounded
by Shortmarket
and Church Streets. It is of historical significance in that it is a
square around which Cape Town developed and
was an area where
farmers, during our colonial past, used to outspan their wagons and
offload their products. It is common cause
that the square has
deteriorated over the last few decades and is now used as a parking
lot. Heritage Square is in the immediate
vicinity of Riebeeck Square.
It consists of a block of preserved heritage buildings which have
been restored and renovated. In
short, this has resulted in a
recognised city block with established heritage values.
[5]
The sequence of events that led to the land use approvals for a
development on the doorstep of the Bo-Kaap and which culminated
in
the present appeal is set out hereafter. During 2015 Tommy Brümmer
Town Planners, who represented the Developer, held two
pre-submission
consultations with City officials. The first took place in May and
the second on 24 August. During October of that
year, the Developer
made the following applications:
(a) In terms of section
42(b) of the By-law,
[2]
for
departures from the City’s Development Management Scheme (DMS)
to allow portions of the building above 38m to be closer
to the
street boundary than is permitted by item 60(e) of the DMS;
(b) In terms of section
42(f) of the By-law, for the consolidation of two erven;
(c) in terms of section
42(i) of the By-law, for approval in terms of Item 64(e)(ii) of the
DMS to have parking on the ground floor
level for Block B at 0m in
lieu of 10m to the street;
(d) In terms of section
42(i) of the By-law, for approval in terms of Item 162 of the DMS to
develop a new building in the Heritage
Protection Overlay Zone
(HPOZ);
(e) In terms of section
42(i) of the By-law, to have a 0m building line on the Buitengracht
Street boundary in lieu of 5m as required
by Item 121(2) of the DMS
for a metropolitan road.
These
are the applications, the approvals of which are at the centre of
this appeal.
[6]
The applications referred to in para 5 above relate to erven 144698
(2505 square metres) and 8210 (645 square metres) in Cape
Town, which
are owned by the Developer. The two erven are adjacent, hence the
application for consolidation.  The properties
are bounded by
Buitengracht, Rose, Longmarket and Shortmarket Streets. The erven in
question, and a number of developed properties
alongside them, are
separated from the Bo-Kaap by Rose Street.
[7]
I pause to record the Title Deed condition in relation to Erf 144698.
The special condition for the benefit of the City reads
as follows:
‘
Subject to the
following special condition contained in Deed of Transfer No.
17550/1953 imposed by and for the benefit of the Municipality
of Cape
Town, namely:
The Transferor shall have
the right to refuse permission to build or rebuild any building or
structures on the said land unless
the architecture of that portion
of such buildings or structure which fronts on Rose Street is in
conformity with the general design
and architecture of buildings
situate in such area or areas of the City of Cape Town which is known
and/or classified as the Malay
Quarter.’
[8]
The applications were motivated and supported by:
(i)  an Urban Design
Report prepared by Bluegreen Planning and Design;
(ii)  a report by
Fabian Architects; and
(iii) a Traffic Impact
Assessment by Kantey and Templer.
On
behalf of the Developer it was stated that the applications seeking
approval for the proposed development were compliant with
the City’s
policy framework in relation to such proposals, more particularly:
(a) the Cape Town Spatial Development Framework;
(b) the Table Bay
District Plan; (c) the Tall Building Policy; and (d) the Urban Design
Policy.
[9]
On 7 December 2015 the City’s Directorate of Energy,
Environment and Spatial Planning in the Department of Spacial Planing

and Urban Design, submitted an internal report in relation to the
applications by the Developer. The following remarks were made:
‘
In
our opinion, due consideration has been given to the context that the
site is located within which is demonstrated through the
urban design
report attached to the application.
Support was given for a
building that [utilises] allowable building height but with massing
sensitive to the Bo-Kaap and Riebeeck
Square context. The utilisation
of basement parking also minimises the impact in street activity
which was a key design requirement.
We
thank the developer and design/planning team for a clear and
participated process with our and other line [department] and [a]

well-motivated application clearly unpacking the key design
principles and responses. This made the process of assessment a
pleasure.’
[10]
Two days later, on 9 December 2015, the City’s Directorate of
Asset Management and Maintenance Transport recommended
the approval
of the proposal subject to certain conditions.
[11]
On 14 December 2015 the District Head: Environmental and Heritage
Management Resources (the EHM) within the City’s Environmental

Management Department made the following three comments:
‘•
The
identified heritage resources are the HPOZ urban streetscape
interface, the Bo-Kaap
residences along Rose
Street, views of vistas of the mountain from various points in the
City and archaeological discovery during
excavation.
·
The Buitengracht Street edge of the building requires a larger
setback
and canopy on street level and one storey to improve the
pedestrian experience. There must be direct access to the building at
various points along an active edge.
·
The Rose Street building interface is too high and should emulate the
development
one block north. An appropriate edge and interface with
Bo-Kaap should be 2 storeys with setbacks for subsequent storeys. . .
.’
[12]
Following on what is set out above the Developer’s application
was advertised. It attracted 1017 objections, more than
600 of which
were prompted by a website created and maintained by the first
appellant, the Bo-Kaap Civic and Ratepayers’
Association, a
voluntary association that claimed it represented the interests of
residents and ratepayers of the Bo-Kaap. The
second appellant, the
Body Corporate of 35 on Rose Residents’ Association and, as the
name suggests, is the body corporate
responsible for that property,
which is located on Rose Street, close to the erven in question. The
body corporate was among those
who objected to the Developer’s
proposal. The third applicant in the court below was Professor Fabio
Todeschini, an architect,
city planner, urban designer and heritage
practitioner who also owned property in the Bo-Kaap. He passed away
and has been substituted
as a litigant in this appeal by the
executors of his estate, the third appellant.
[13]
On 8 March 2016 the EHM commented on the Developer’s
applications. The comments are pertinent. The EHM noted that there

were ‘several significant heritage resources’ and areas
that would be impacted by the proposed development, namely,
(a)
Riebeeck Square; (b) erven 1299 and 1300; (c) the Bo-Kaap precinct;
(d) the City Centre; and (e) Heritage Square. Continuing,
the EHM
recorded that Riebeeck Square is a significant link between the City
and the Bo-Kaap. It went on to state the following:
‘
The massing of the
proposed building is such that the greater bulk and sheerness of the
design imposes onto Riebeeck Square which
serves to further “contain”
the square’s breathing space, boxing it in, which is
counterproductive to the historic
nature of the space. This is not
seen as a positive impact on the open space.
The historic character of
Riebeeck Square is one of openness with important views to Table
Mountain and Signal Hill. These views
should not be discarded but
should be considered when impacted on. The proposed building impacts
on views from Riebeeck Square
and these impacts should be
investigated further.’
(my
emphasis).
[14]
In respect of the Bo-Kaap it said:
‘
The Bo-Kaap is of
very high heritage value with many levels of significance which forms
part of the extremely important history
of not only Cape Town but of
South Africa. The Bo-Kaap is intricately woven into the early
beginnings of Cape Town and has continued
to play an important role
in the heritage and history of our city.
On the City’s
heritage database Bo-Kaap is listed as a Provincial Heritage Site, a
SAHRA Grade 1 Area and a Proposed HPOZ.
Bo-Kaap can be
described on many levels of heritage significance one of which is the
historic fabric and corresponding three dimensional
scale and density
of the area
. This low impact, architecturally rich and unique
area has always had a relationship with town to its south, a
relationship of
proximity that has struggled for sustainability due
to the continued impact of new, large and bulky buildings that have
served
to erode that relationship. Larger, newer buildings which
replaced early structures have resulted in a lineated barrier along
both
edges of Buitengracht and Rose Streets. These multi-storey
buildings have formed a vertical barrier between town and the Bo-Kaap

which removes the historic connection that has always existed between
the two.
A contextual linking of
the Bo-Kaap and town on a physical level is important from a heritage
perspective and is rooted deep in
the history of Cape Town. The
proposed development compounds the ongoing separation by means of the
design’s bulk and height.
The large visual mass of the proposed
building is seen as a physical and visual barrier which erodes the
fragile relationship between
the differing built environments of town
and the Bo-Kaap. The loss of historic connection and association of
Bo-Kaap with town
impacts negatively on the heritage value of the
Bo-Kaap.
The proposed development
has opted for setting the massing and bulk back as the building gets
higher which indicates an acknowledgement
by the designers of the
sensitive nature of the site and its relationship with Bo-Kaap. This
impact should be investigated further
with the aim of design revision
that reduces negative influences.’ (My emphasis.)
[15]
The EHM stated that a portion of the site fell within the City’s
HPOZ and that an analysis was required as to the proposed

development’s impact on the significance and character of the
precinct. Significantly, it went on to state:
‘
HPOZ’s are
very important tools set in place for the protection, preservation
and management of certain areas which have been
investigated, studied
and analysed.
Those areas have been recognised to contain
sufficient heritage value in terms of heritage resources,
significance and character
so as to be protected and managed.
Proposed interventions in these areas should not impact negatively on
any of the recognised
positive heritage values but should seek to be
informed by those exact values and to achieve a sensitive and welcome
balance when
placed in such an environment.
. . .
The proposal introduces a
contemporary design approach to its interface at ground and street
level. Further investigation is recommended
as to the appropriateness
of this approach.
The architectural
language is fashionable and does not reference any obvious design
indicators, the incorporation of which would
serve to better place
the new building in its sensitive position.
The overall height, bulk
and visual mass of the proposed development has a pronounced impact
on the existing built form and character
of the immediate area and
this is difficult to mitigate
.’
(My emphasis.)
[16]
In relation to Heritage Square, the sheer size of the development was
a cause for concern on the part of the EHM. It was not
opposed to the
addition of built form on the site, but made its suggestions in order
to see if there was a way of limiting the
impact on heritage
resources.
[17]
I now turn to the heritage statement prepared by the Developer in
April 2016. At the beginning of the executive summary it
is stated
that the design had responded positively to urban and heritage
related design indicators and that mitigating measures,
such as the
stepping back of the upper levels from the Rose Street edge, without
reducing the overall height, would lessen potential
negative impacts
on the street and townscape and in relation to Riebeeck Square and
the Bo-Kaap. The Developer’s heritage
statement asserted that
since the proposed development involved no listed activities in terms
of s 38(1) of the NHRA
[3]
no
Heritage Impact Assessment was required. The Developer drew attention
to the base zoning for the erven in question, namely,
‘Mixed
Use MU3’. In terms of the Municipal Planning By-law,
permissible coverage for all buildings within this zone
is 100%. It
is that base zoning on which the Developer relied for the
applications for approval that it submitted to the city.
The base
zoning, and the reliance thereon by the Developer as well as the
City’s insistence that it was an important factor,
is a theme
that permeates the complaints and objections by the appellants.
[18]
On the 29
th
of April the EHM wrote to Mr Paul Heydenrych
of the City’s Land Use Management Division stating, inter alia,
the following:
‘
EHM is still not
opposed to the idea of adding built form to the site but is not
supportive of the current proposal.
Our suggestions are aimed
at lessening the negative impact that the proposal has on the
heritage resources in the area.
All of the heritage
resources identified above will be impacted on in a negative manner
to a certain degree by the proposed development
because of the
design’s sheer size and magnitude. The proposed design seeks to
mitigate this impact by introducing setbacks
and stepping the
building. These setbacks and stepping measures are not significant
enough as mitigation for the impact of the
proposal’s size.
The overall height is
still seen as being problematic in achieving an appropriate
intervention of a new building into the area.
Our recommendation is
for a reduction in height whereby a revised design relates more
appropriately to the heritage resources which
are impacted on. The
effect of reducing the overall height and subsequent manipulation of
proposal might be more manageable in
how the development relates to
and impacts on the surrounding heritage resources.
EHM still recommends that
comment be requested by the applicant from Heritage Western Cape. We
request that such comment be forwarded
to us please.
EHM acknowledges the
substantial Heritage Statement provided by the applicant.’
[19]
On 11 May 2016, HWC responded to the Developer’s proposals. The
following are the essentials of the response:
‘
We note the
following three design principles listed in the Heritage Statement,
which have been proposed in an attempt to reduce
impacts on townscape
and streetscape:
(a)  The ‘stepped
massing’ from a height of 60m on Buitengracht Street towards a
lower massing on the Rose Street
edge;
(b)  The
incorporation of horizontal and vertical articulation and datum
lines, and
(c)  The proposed
height “counter-balancing” the mass of the City-Park
building diagonally across Riebeeck Square.
With regard to (a), the
proposed cascading of the 18-storey building down to a height of
approximately five storeys on Rose Street
attempts to make a gradual
transition between the very tall façade on Buitengracht and
the Bo-Kaap.
The stepping effect alone is however inadequate to
mitigate the substantial heritage impacts on the Bo-Kaap, which is a
fine-grained,
predominantly one- and two storey environment with a
unique character.
. . .
With regard to (b) above,
HWC disputes the datum lines that have been used to establish the
heights and set-backs. Whilst the base
zoning and its associated
development rules are recognised, the Heritage Protection Overlay
Zone, which is a lawful deprivation,
takes precedence over these
underlying “development rights” and was specifically
promulgated to allow for context to
inform development and, where
necessary, to limit it. We are of the view that a height of 60m above
this section of Buitengracht
Street is inappropriate, as it will
dominate both the Bo-Kaap and Riebeeck Square and exacerbate the
separation of the Bo-Kaap
from the West City.
As far as design
principle (c) above is concerned, HWC does not agree that the Netcare
(“City-Park”) Hospital, diagonally
opposite Riebeeck
Square, can be used as justification for the construction of another
insensitively-scaled ziggurat building or
that “counter-balancing”
the mass of the hospital would be successful mitigation for the
negative effects of a new
building, which does not dominate Riebeeck
Square, serving as an enclosing element to the square.
. . .
It is HWC’s view
that the development proposal in its current form is inappropriate in
this heritage context and that it will
have a detrimental effect on
the heritage significance of both Riebeek Square and the Bo-Kaap
.
As noted in the CoCT Densification Policy, development that will be
compromising the surrounding built environment should not
be
supported. We therefore strongly object to the current planning
application.
The proposed mitigation
measures, such as stepping down in height are inadequate to address
the substantial impacts of an over-scaled
building. The applicants
should be encouraged to re-conceptualise the development proposal,
based on comprehensive heritage indicators
and not to merely maximise
development, with mitigation as an afterthought. . . .’ (My
emphasis.)
[20]
Under the heading ‘Heritage Evaluation’, the following
appears in the report, dated 24 May 2016, by the City’s
Land
Use Management to the MPT:
‘
Various commenting
and objecting parties (as indicated above) have cited how the
proposed building will impact on the surrounding
heritage resources.
Their main points relate to the proposed building’s height,
massing and position.
Despite the legislated
heritage resources within the surrounding area (ie PHS), these
resources do not have a legal standing to
impose on the subject
property.
The various objecting
parties’ calls for the reduction in the height of the building
due to its impact on the various heritage
resources in the area have
not been quantified. The calls for a reduction in order to limit
[the] impact or to allow for a “bridge”
between the city
and Bo- Kaap cannot override the primary rights allowable on the
property as well as the applicable legislative
context, as previously
explained.
With respect to further
arguments to limit the height of the portion of the building in the
HPOZ, it is noted that:
If the permissible
development rights of the portion outside of the HPOZ were to be
accessed it would serve to “create a backdrop”
to a
development of the portion within the HPOZ. Despite this and to
mitigate any impacts on the Bo-Kaap area, the bulking of the
building
is towards Buitengracht and the CBD. This is some 65m from the
Bo-Kaap.
The massing is designated
to “bulk” the building towards the central city to “abut”
other tall buildings
in the city centre which is the economic hub of
the City of Cape Town.
It is noted that other
than the development rules for the development site, no development
rules exist within the HPOZ as mentioned
in Item 161 of the
development management scheme.
In the absence of the
qualification [set out above], my Department considers the above and
following comments. . . relevant to evaluation
of this application.
From a statutory point
of view, this department reaffirms that no mechanism or legal basis
exists to circumscribe the permissible
development rights of the
portion of the site outside the HPOZ, despite objections and the
comments from HWC arguing for limiting
development rights.
’
(My emphasis.)
[21]
On 7 June 2016 a hearing took place before the MPT. I pause to record
that the members of the MPT are technical specialists
and a number of
them are independent and not employed by the City. At the MPT meeting
Councillor Bryant emphasised the growth in
the CBD and that the
amazing growth was something to be proud of. Extensive discussions
ensued, including discussions concerning
the scale of the development
and its impact on heritage resources. The following are the noted
reasons for the MPT’s decision
to approve the proposal:
‘•
The
proposal complies with the City of Cape Town Planning Policies (e.g.
Table
Bay District Plan
Densification Policy, Urban Design policy and Tall Building Policy).
·
The proposal takes cognizance of the heritage resources within the
area
and has the potential to exhibit good urban design when the
relevant conditions have been complied with, while sacrificing
primary
development rights.
·
The proposal will provide an adequate transition between the City and
Bo-Kaap
at street level, while reinforcing and defining Riebeeck
Square, provided appropriate urban design and landscaping is
implemented.
·
The massing and height of the building is located away from the
Bo-Kaap.
·
The interface and facades are considered to be acceptable and
positive,
especially when relevant conditions are complied with.
·
The proposal will activate and improve the surrounding streetscapes.
·
The proposal is considered desirable in terms of Section 99(3) of the
City
of Cape Town Municipal Planning By-Law.’
On
21 July 2016 the appellants were notified of that decision.
[22]
Twelve appeals were lodged against the approvals by the MPT,
including those of the first two appellants and Professor Todeschini.

I pause to record that at the time that the appeals were lodged the
Bo-Kaap had not formally been proclaimed an HPOZ but that the
City
did consider that it should be done as a matter of priority.
[23]
It is significant that in a report of the City in relation to the
appeals, dated 19 October 2016, the following appears:
‘
However, the
existence of base rights in itself cannot be the sole reason for
granting the City’s approval under the general
provisions of a
HPOZ. In this regard, the department has applied its mind and made
recommendations to the MPT who, in turn, applied
its collective mind
in making specific decisions. As a result, condition 3.2 of the
Amended Annexure A was imposed in order to
further mitigate aspects
of the proposal. Again, these are reflected in the minutes and
transcripts of the MPT meeting.’
[24]
The first stage of the appeals were conducted at a meeting of the
Mayoral Advisory Panel (MAP) on 30 November 2016 and oral

representations from some of the appellants ensued. The MAP then sent
a report to the Mayor containing its reasons for approving
the
applications. The reasons, in addition to endorsing those of the MPT,
were as follows:
‘
In addition to the
proposal complying with the City of Cape Town Planning Policies i.e.
Table bay District Plan, Densification policy,
Urban Design Policy
and Tall Building Policy as mentioned by the Municipal Planning
Tribunal the proposal also complies with the
City of Cape Town
Spatial Development Framework, the Integrated Development Plan,
Economic Growth Strategy, and the Transit Orientated
Development
Strategy.
Where there were errors
in the notification process extra time was allowed and agreed to by
the applicant for people to submit comments
on, or objections to the
application.
Although only a portion
of the property was affected by the HPOZ the department had treated
the application as if the whole property
was affected by the HPOZ.
The panel was of the view
that the application was desirable in terms of section (2)(d), as
contemplated in subsection (3), of section
99 of the MPBL.
In addition to the
desirability of the application in terms of section 2(d) as
contemplated in subsection 3(i) related to traffic
impacts, parking
access and other transport related considerations, the panel added
that the application was desirable in that
it bordered on
Buitengracht which is a high order road and is thus an ideal location
for land use intensification and increase
density.
In terms of the transit
development strategy more residential uses have to be encouraged in
the City centre to address inefficiencies
in the City.
The application was
sensitive to the Bo-Kaap area.
The massing and height of
the building’s façade along Rose Street responds to the
neighbouring buildings’ on
each side of the building.’
(My emphasis.)
[25]
The second stage of the appeal process comprised of the Mayor
considering the MAP’s report as well as all the other
information put before her and then making a decision. She decided to
accept the recommendation of the MAP and agreed with its report.
She
stated that she took into account heritage concerns. Her reasons will
be further explored later in this judgment. The appellants
had many
complaints about the City and the Mayor’s decisions, including
many that were based on ‘procedural irregularities’,
such
as the lack of time and opportunity to object, irregular
pre-submission consultations with the City’s officials,
defective
notifications, and not making available material
information to objectors. Before us these were advisedly, not
persisted in.
[26]
On the substantive level the appellants were aggrieved, first, at the
City’s attitude in relation to how an overlay zoning
that
attached to one of the erven had to be construed and applied. Overlay
zonings are provided for in the DMS, which is incorporated
into the
City’s By-law. Among the matters that have to be taken into
account in relation to an overlay zone are environmental,
heritage
and conservations concerns. In the present case the overlay zone is
an HPOZ, which emphatically elevates heritage concerns,
so it was
contended. The appellants submitted that the base zoning, which in
the present case was mixed use, did not detract from
the HPOZ. Item
162 of the DMS provides that the following requires the approval of
the city:
‘
Any development,
including any physical intervention, excavating or other action other
than those caused by natural forces, which
may in any way result in a
change to the appearance or physical nature of a heritage place or
influence its stability or future
wellbeing including: (a) the
construction, alteration, demolition, removal or change of use of a
heritage place or a structure
at a heritage place; (b) carrying out
any works at a heritage place; and (c) consolidation of land
comprising a heritage place.’
The
City is of course empowered to afford an exemption, but must do so
consciously. It did not, according to the appellants, apply
its mind
to this requirement.
[27]
The appellants were adamant that s 24 of the Constitution,
[4]
as well as the NHRA obliged the City to have regard to the
implications of the development on the heritage values of the area.

That obligation, they insisted, had not been met.
[28]
It was contended on behalf of the appellants that Riebeeck Square was
a significant link between the City and the Bo-Kaap and
that the
proposed development would disturb that connection because of its
sheer height and mass. In respect of Heritage Square,
it was
submitted that the development, because of its size, would impact on
it for obvious reasons of proximity.
[29]
The appellants made common cause with HWC in asserting that the
stepped massing, that is the proposed cascading of the
eighteen-storey
building down to a height of approximately five
stories on Rose Street, so as to attempt a gradual transition between
the tall
façade on Buitengracht Street was an inadequate step
to mitigate the impact on the heritage value. The appellants accused

the City and the Developer of being deceptive, by providing
photomontages of the proposed development which inaccurately
downplayed
the height of the building.
[30]
The bases of the objections by the appellants grew exponentially. The
appellants incorporated into their growing list of objections
and
complaints the City and the Mayor’s failure to abide by the
City’s Scenic Drive Policy, which they said was implicated
by
the sheer height of the building. Simply put, on this score, the
complaint was that views would be affected, especially in relation
to
a drive along Buitengracht Street, which the Scenic Drive Policy
sought to prevent.
In this regard they stated that
Buitengracht Street is protected as an S2 scenic drive from the
bottom of Kloof Nek Road to Coen
Steytler Avenue. The appellants
contended that the development would affect the visual quality from
the Bo-Kaap.
[31]
In submissions before us reliance was primarily placed on s 99 of the
By-law. More about s 99 and the appellants’ stance
in relation
thereto, later. The appellants also submitted that the City had
ignored its own policies including those set out at
the end of para 8
above.
The appellants accused the City of having
failed to have proper regard to its own Tall Building Policy. That
policy requires the
City to have regard to the impact of proposed
tall buildings.
Moreover the appellants contended that the
photomontages of what a completed building would look like, presented
by the Developer
as part of its application and for the public to
comment upon, were deceptive and underplayed the visual impact of the
building
the Developer intended to erect. The appellants asserted
that what was required, especially in the light of the reservations
of
the EHM, was a visual impact study. This had not been called for
by the City.
[32]
Furthermore, the appellants stated that the City completely ignored
its own context sensitive Densification Policy, more particularly,

that the scale and character – bulk, height and architectural
styling – of high density areas must be appropriate to
the
context. In the present case, so it was contended, the proposed
development was contextually inappropriate.
[33]
Moreover, the appellants went on to rely on the City’s Urban
Design Policy (UDP). This policy, so it was asserted, was
to ensure
that the design process and formulation of development did not
further contribute to the segregated nature of Cape Town,
inherited
from apartheid. The appellants took the view that the approval of the
development effectively cut the Bo-Kaap off from
the rest of the
city.
[34]
The appellants continued growing their grounds of objection by
placing reliance on the Cultural Heritage Strategy for the City

which, as the name suggests, recognises the rich cultural history of
Cape Town. This is another nuance of the repeated accusation
that
heritage concerns were ignored by the City and the Mayor.
[35]
The appellants alleged further that the City had failed to enforce
the special condition attached to the Title Deed in relation
to Erf
144698, referred to in para 7 above. They pointed out that the
Developer had not made any application to the City for the
relaxation
of the condition. Thus, so it was contended, the City ought not to
have approved the applications by the Developer.
[36]
In its answering affidavit opposing the relief sought by the
appellants, the City pointed out, at the outset, that the subject

properties are not located within the Bo-Kaap. It provided a
three-dimensional depiction of the building and its surrounds, which

it contended provided a better understanding of the photomontages
supplied by the Developer. The City contended that the
three-dimensional
analysis showed that the development would blend in
with the surrounding area.
[37]
According to the City, the heritage statement presented by the
Developer provided an accurate description of the history of
the area
immediately surrounding the proposed development. The City and the
Mayor emphasised that the properties in question lie
within a band of
commercial properties between Rose and Buitengracht Streets and,
further, that commercial properties had already
intruded and later
come to dominate the block from the early part of the twentieth
century. Over time, residential areas were replaced
with commercial
properties, such as car salesrooms and car service centres, parking
areas, wholesale and light manufacturing. In
this regard, the City
placed reliance on aerial photographs, which show the stark contrast
between the block related to the proposed
development and the
Bo-Kaap. In essence the City contended that extensive residential and
commercial developments already existed
within the block in which the
development was located, as well as within its immediate vicinity, as
opposed to the Bo-Kaap and
its unique architecture and character. The
site itself, the City and the Mayor pointed out, has no inherent
heritage value.
[38]
According to the City, the site in question was already earmarked for
development from the late 1940s. New buildings in the
CBD were
allowed up to a maximum height of 37m on streets wider than 18.5m,
such as Buitengracht Street, and up to a height of
25m on streets
wider than 12.5m. This was followed by a period of economic decline
and inner-city decay. In 2003 this was reversed
when residential
units such as the Studios, adjacent to the subject properties, were
developed. These developments were a form
of city living, which now
appears to be a growing trend throughout the world. More recent
developments in the area include the
Hilton Hotel, on the corner of
Buitengracht and Wale Streets, and 35 on Rose, mentioned in para 12
above.
[39]
The latest development on which construction had already started at
the time of commencement of litigation in the court below
is called
‘117 on Strand’, and is situated between Rose, Strand,
Ciappini and Castle Streets, adjacent to the Bo-Kaap.
It is 150m away
from the subject properties and indeed very similar to the
development under discussion. 117 on Strand is a 17
storey building,
comprising 117 apartments, with underground parking, 5 200m
2
of retail outlets and 6 600m
2
of office space. Moreover, 117 on Strand is staggered away from the
Bo-Kaap. That development was not challenged by HWC or the

appellants.
[40]
The City pointed out that Rose Street is a minor two-way street,
providing a dividing line between the CBD and residential
Bo-Kaap. As
stated earlier, each side of the street has a very distinct
character. On the western (Bo-Kaap) side, the residential
buildings
are typically single to two storeys, set on the advancing slope of
Signal Hill. On the eastern (CBD) side of Rose Street
the buildings
are mostly three storeys and higher, currently up to nine storeys.
For instance, immediately to the south of the
proposed development is
the nine storey high Studios building, on erf 148791, containing
flats and some business premises. Immediately
to the north of the
development is 35 on Rose, a six-storey block of flats and offices,
situated on erf 166963.
[41]
Riebeeck Square, a Provincial Heritage Site (PHS), which is on the
eastern side of the proposed development, as described above,
is a
large open area currently used for parking. It is designated as a
public open space, and is bounded by the treed avenues of
the
surrounding streets. St Stephan’s Dutch Reformed Church is also
a declared PHS and is situated along the Bree Street
edge of the
square. It is uncontested that Riebeeck Square has deteriorated over
the last few decades. The City adopted the view
that developments
such as the one in question should be supported as they will breathe
new life into the square. Surrounding Riebeeck
Square are offices and
businesses, the old Christiaan Barnard Hospital (Netcare) as well as
Heritage Square.  A positive change
has been the renovation and
restoration of Heritage Square, with restaurants that are open in the
evenings. The City is adamant
that introducing residential areas,
such as the proposed development around Riebeeck Square, may be a
catalyst to develop a more
human orientated facility, rather than a
vehicle orientated facility.
[42]
The City’s position in relation to the base zoning and overlay
zoning is set out hereafter. Both categories depict a
land use
prescribed by the DMS regulating the use of and development of land
and setting out the purposes for which land may be
used and the
development rules applicable to that land use category. In its
answering affidavit, the City accepted that the approval
for use of
property under the DMS had to take into account various policies and
principles, as well as environmental and land use
considerations. The
City was adamant, however, that designations under the DMS remained
the starting point. It pointed out that
base zoning meant the zoning
before the application of any overlay zoning and may include a
subzoning as contemplated in the DMS.
Overlay zoning is a zoning, in
addition to the base zoning, stipulating the purposes for which land
may be used and the development
rules, which may be more or less
restrictive than the base zoning. The City explained that the MU3
base zoning which attaches to
the property in question, applies to
all properties in the area between Buitengracht and Rose Streets. The
City’s position
was that the base zoning confers various
primary permitted uses for which approval is not required. The base
zoning in question
allows for a range of uses, including business
purposes and flats. The overlay zoning in question requires that
environmental,
heritage protection, and conservation concerns be
taken into account.
[43]
According to the City there are three relevant overlay zones
designated by the City. First, is the Cape Town CBD Local Area

Overlay Zoning. This is referred to as the CBD LAO. The second is the
Central City Heritage Protection Overlay Zoning. This is
known as the
Central City HPOZ. The third is the Table Bay Scenic Drives Overlay
Zone, which it is to be noted, does not include
Buitengracht Street.
According to the City the development proposal makes use of the
maximum height allowed by the MU3 base zoning.
[44]
The City’s position was that the height and the scale of the
proposed development is within all of the rights that attached
to
properties in that zoning and the CBD LAO. The City emphasised that
the proposed development will, in fact, not utilise the
full extent
of conferred developmental rights.
[45]
The City pointed out that the properties in question also fall within
an urban development zone. This was introduced in 2003
and is a tax
incentive, aimed at revitalising inner city areas by attracting
capital investments in commercial and residential
property through a
tax rebate. The idea, so the City said, was to bring people back to
the central city to live, play and work,
through appropriate
residential and business densification, affordable housing and mixed
usage buildings.
[46]
The City also insisted that it applied its own density priority zone
policy and that the CBD was an urban civic upgrade area
into which
the proposed development fitted snugly.
[47]
In dealing with the appellant’s criticisms against the approval
process, the City referred to the expert knowledge and
experience of
members of the MPT. They all have impressive academic and practical
credentials. So, too, the members of the MAP.
The same applied to the
Mayor’s technical advisor. It was pointed out that all of these
experts agreed that the applications
for the development proposal
should be approved.
[48]
According to the principal deponent on behalf of the City, the
comments made by interested parties when the proposal was advertised

caused the City’s Land Use Management Department to obtain
further input on historical aspects of the area from the EHM.
It
acknowledged that the EHM was concerned about the height and scale of
the proposed development and recommended a reduction in
height, with
a revised design that related more appropriately to heritage
concerns. The EHM suggested that comment be solicited
from HWC. The
latter accepted that a permit was not required in terms of s 27(18)
of the NHRA. HWC did not consider the stepping
down effect to Rose
Street to be adequate in mitigating heritage impact. It considered
the proposed development’s 60m height
to be inappropriate. HWC
did not, however, in principal, object to the erection of the new
building.
[49]
The City was impressed by the fact that, after receipt of the
aforementioned heritage concerns, the Developer sought to address

them by making significant changes. The Developer, according to the
City, did reduce the scale of the proposal and set the building
back
further from street boundaries. The part of the building immediately
adjacent to Rose Street was reduced in height, from 5
to 3 storeys,
and the Developer also procured the heritage statement referred to
earlier. That statement accepted that the proposed
development would
have to be sensitive to the heritage resources surrounding it. The
Developer also contended that the impact on
the townscape and
streetscape was positive.
[50] The report to the
MPT reiterated that the bulk of the proposed development was towards
the centre of the CBD, to abut other
tall buildings. The CBD is the
economic hub of Cape Town. It also indicated that the bulk of the
building is at the lower levels,
9 storeys and below, which is at a
height similar to the adjacent building on erf 148791. Significantly,
the following appears
in the report:
‘
Based
on the existing rights applicable to the property, this department
prefers the current proposal over a proposal solely based
on the
primary rights allowable to the property given the building setbacks,
massing and heights proposed. The proposal provides
an effective
transition between the City and Bo-Kaap, while being mindful of the
heritage resources in the area.
’
[51] In relation to the
title deed condition, the following was stated:
‘
[T]he
condition points in a design direction. It suggests that, in order to
fully clarify the interface along Rose Street and to
create the best
possible street interface and transition, a condition should be
imposed to allow for further consideration of this
façade. As
I shall explain below, the City will take a decision on whether it
will exercise the discretion conferred by
the title deed condition,
during the building plan stage.
’
[52]
The transcript of the MPT hearing shows that there was extensive
discussion of development rights and heritage concerns. There
was
also a discussion about the application of s 99 of the By-law, which
dictates that when applications of the kind under consideration
are
decided the social and economic impact should be taken into account.
As far as the City was concerned the unanimous approval
of the
applications was reached in balanced fashion, as required by s 99.
[53]
In relation to the MAP meeting, the City explained that the
appellants addressed the meeting as did the Developer’s
representatives and that this was followed by extensive discussion.
The MAP’s recommendations and reasons are contained in
the
minutes of that meeting. The MAP recommended, unanimously, that the
appeal be dismissed. In respect of the Mayor’s decision,
the
City recorded that she had been provided with all the documents and
materials that were provided to the MAP. In addition, she
had been
supplied with the appeals themselves and a report prepared by the
Acting District Manager. She was also placed in possession
of the
minutes of the MAP meeting, of 30 November 2016, as well as the
report prepared by the Chairperson of the MAP, Dr Johan
van der
Merwe.
[54]
The City and the Mayor were adamant that she had carefully considered
all of the information placed before her. She engaged
in several
consultations and discussions with her technical advisor and with her
principal legal advisor. It is uncontested that
she conducted an
inspection of the site of the proposed development and the
surrounding areas, accompanied by her technical and
legal advisors.
She was aware of the HPOZ attaching to one of the subject erven and
was careful to observe the position of the
proposed development in
relation to the Bo-Kaap and to make an assessment of its impact on
nearby heritage resources, Riebeeck
Square and Rose and Buitengracht
Streets.
[55]
The Mayor was aware of the base zoning and the other buildings in the
immediate vicinity of the proposed development. The City
and the
Mayor insisted that they had regard to heritage considerations and
balanced that against the other necessary factors. It
was only after
the Mayor had done so that she reached a decision to dismiss the
appeals.
[56] It is necessary to
have regard to the Mayor’s written reasons for accepting the
recommendation of the MAP:
‘
I
accept the recommendation of the Advisory Panel and agree with its
Report to me. I considered, in particular, the view of the
City’s
Environment and Heritage Department that the surrounding heritage
resources will be impacted on in a negative manner
to a certain
degree by the proposed development due to the design’s sheer
size, height and magnitude. However, I agree with
the MPT and the
Advisory Panel that the proposed development responds appropriately
to the neighbouring buildings and the environment.
’
[57] Significantly, the
Mayor stated the following in her affidavit opposing the relief
sought by the appellants:
‘
Finally,
it should be apparent from the appeals process and record of decision
that I did not decide the appeals on the basis that
the City is not
entitled to limit primary rights conferred by the development
management scheme when considering an application
for development
falling within a heritage protection overlay zone. My belief was, and
remains, that it was not necessary to do
so because the proposed
development responds appropriately to surrounds and that sufficient
mitigating measures and conditions
were put in place to address the
heritage concerns raised.’
[58]
The high court, in adjudicating the dispute between the appellants
and the respondents, had regard to the provisions of s 99
of the
By-law and the prescribed criteria in terms of which applications for
approvals of the kind in question are to be decided.
Le Grange J
considered the sequence of events and the documentation referred to
earlier in this judgement. The court below took
into account the
comments by the City’s EHM, the objections by the appellants
and all the other information available to
the City and the Mayor.
The court held that both s 99 of the By-law and Item 162 of the DMS
required the decision- makers, the
City and the Mayor, to take into
account heritage concerns. Le Grange J concluded that whether one was
dealing with the provisions
of s 99 or with the relevant provisions
of the DMS, heritage concerns could not be considered to be the
pre-eminent or sole criteria
in deciding applications such as those
in the present case. The court found that it is but one of a basket
of factors to be balanced
in order to arrive at a decision.
[59] The court below
dealt with the appellants’ complaint that the City and the
Mayor did not engage with the views expressed
by HWC and the EHM and
thus failed to have any real regard to the development’s impact
on heritage. It is necessary to set
out, in some detail, the court’s
reasoning on this aspect. In this regard, paragraph 88 – 93 of
Le Grange J’s
judgment are of particular relevance:
’
It
needs to be mentioned that the MPT and the Mayor were not only
obliged to consider heritage but a far broader range of issues,

including heritage. It is difficult to accept that the City had no
regard or failed to have appropriate regard to heritage impact
when
it considered the Developer’s planning applications, as this
contention by the Applicants, is not borne out by the papers
filed of
record.
There can be no
misgivings that heritage enjoyed a distinct degree of attention
throughout the various stages of the application.
The objectors’
concerns, as noted by Heydenrych, were the height, massing and
position of the building. On this point it
was noted by Heydenrych
that the bulk of the building was on the lower levels (9 storeys and
below) “which is at a similar
height to the adjacent existing
building on Erf 148791”; the revised proposal by the Developer
were preferred over a proposal
based solely on primary rights; it was
considered that the proposal provided an effective transition between
the City and Bo-Kaap
while being mindful of the heritage resources in
the area; it was further found that the development had taken care
with regard
to the surrounding heritage elements and that the impact
of the building was mitigated by the setbacks applied to the building
which limited its impact on the surrounding heritage resources.
A member of the MPT
considered that the redesign and mitigation measures achieved a
balance between the developer’s statutory
rights and the built
infrastructure of the Bo-Kaap and the MPT gave as a reason for their
decision the fact that the proposal takes
cognizance of the heritage
resources within the area.
At the MAP, one of
[the] councillors was of the view that the application responded to
the HPOZ and that the developer had
been sensitive to the Bo-Kaap by
scaling down the building on the Rose Street side. Another councillor
of the MAP thought that
the design had been as sensitive as possible.
The MAP also echoed the reasons for the MPT’s decision by
finding that the
proposal took cognizance of the heritage resources
within the area.
The Mayor agreed with the
MAP. The following was recorded:
“
I
accept the recommendation of the Advisory Panel and agree with its
report to me. I considered, in particular, the view of the
City’s
Environment and Heritage Department that the surrounding heritage
resources will be impacted on in a negative manner
to a certain
degree by the proposed development due to the design’s sheer
size, height and magnitude. However, I agree with
the MPT and the
Advisory Panel that the proposed development responds appropriately
to the neighbouring buildings and the environment.’’
The
City further considered the fact that the bulk of the building was
moved away from the Bo-Kaap towards Buitengracht Street.
Secondly,
the Rose Street façade of the building would only be three
storeys which is entirely in keeping with the vernacular
of the
Bo-Kaap and the Second Applicant’s building.’
[60] The court below held
that the City and the Mayor had arrived at the decisions referred to
above in a balanced fashion that
they did not act unreasonably or
irrationally. The Mayor and the City did not commit an error of law
and they did not ultimately
hold a rigid view that base zoning rights
trumped all countervailing considerations. Insofar as all the other
allied bases of objection
of the appellants were concerned, the
following is relevant:
(a) In respect of the
lack of a visual impact assessment, the court held that no height
departure was required in terms of the Tall
Buildings Policy, which
left the City with a wide discretion in respect of whether to require
a visual impact assessment from a
prospective developer. Sufficient
information was provided so as to enable the City and the Mayor to
assess the visual impact of
the building.
(b)
In relation to the appellants’ complaint that the City and the
Mayor failed to have due regard to the proposed development’s

impact on traffic, the court below found that the challenge was
unmerited. Le Grange J recorded that the inner city is congested
in
many places during peak hours, but that that cannot be held to mean
that the entire enterprise of providing further retail and

residential opportunities within for the CBD must now be abandoned.
The court held that the recommendations set out in the traffic
impact
assessment, which for present purposes need not be repeated, and the
conditions of approval which included costs accruing
to the
Developer, were adequate to deal with traffic-related problems.
[61] The court below
rejected HWC’s contention that s 27(18) of the Heritage Act was
triggered and that declaratory relief
in that regard was justified.
Since HWC is no longer before us, and since no other party persisted
in that argument, there is no
need to deal with that aspect. Relying
on the principal of subsidiarity the court below held that
appellants’ further reliance
on s 24 of the Constitution was
misplaced. In the result the court made the following order:
‘
The
Review application and the Fourth Applicant’s application for a
Declaratory order are dismissed with costs. The Applicants
are to pay
the Respondents’ costs jointly and severally, the one to pay
the other to be absolved. Such costs to include the
costs of two
counsel.
’
[62]
Before turning to deal with whether the conclusions of the court
below set out above and the ensuing order were well-founded,
it is
necessary at the outset to deal with a preliminary matter. Shortly
before the appeal was heard an application to lead further
evidence
on appeal was filed on behalf of the appellants. In short, it related
to an enquiry conducted by a firm of attorneys in
Cape Town, after
allegations were made by as yet unidentified members of the EHM in
relation to the then Mayor’s antipathy
to heritage concerns.
[5]
The allegations made were serious and the Mayor was accused of
abusing her position and being guilty of misconduct and misrule
by
deliberately ignoring any input or assertions about heritage
concerns. Although Professor Todeschini had made public utterances

about bias and mala fides on the part of the City and the Mayor,
these were not repeated in the affidavits on which the application
in
the court below was based. While there was not a complete disavowal
of Professor Todeschini’s stance, there was, for the
purposes
of the litigation, a dissociation from the allegations of mala fides
and bias.
[63]
The basic problem for the applicants in relation to the admission of
new evidence is that the recommendation by the firm of
attorneys was
that the allegations set out in the preceding paragraphs require
investigation and that their veracity must be tested.
The City
has accepted the recommendation, but the investigation has not yet
commenced. The City has also made it known, publicly,
that the
allegations concerning the Mayor will be contested. The allegations,
sought to be adduced on appeal, are hearsay. They
remain untested and
are from a source that is generic rather than specific. There has
been no attempt to obtain first-hand substantiation
of the
allegations made. Moreover, there has been no attempt to have the
evidence adduced in terms of the
Law of Evidence Amendment Act 45 of
1988
.
Section 3(1)
of that Act provides that as a general rule
hearsay evidence is inadmissible. There are a few exceptions, one of
which is that
evidence should be admitted in the interest of justice,
if the court so opines after considering all relevant factors,
including
the reason why such evidence is not given by the person
upon whose credibility the probative value depends. There are also
all
the other requirements provided for in s 3(1)(
c
)
that a court has to consider before such evidence is admitted. As
stated above no attempt was made in terms of s 3 of the Evidence

Amendment Act to lay a basis for the admission of the evidence.
[64]
The legal principals regulating the admission of further evidence on
appeal are well-established. Our courts have repeatedly
stated that,
in the interest of finality, a court’s power to receive further
evidence in terms of s 19(
b
)
of the
Superior Courts Act 10 of 2013
[6]
should be exercised sparingly and that further evidence on appeal
should only be admitted in exceptional circumstances.
[7]
As stated in the preceding paragraph, the evidence sought to be
placed before us is, in general terms, inadmissible and no legal

basis has been provided for its reception. Furthermore, it is an
attempt to make out a new case on appeal on as yet untested
allegations.
In light of what is set out above we are disinclined to
admit the evidence and the necessary order will be made at the end of
this
judgment.
[65] I now turn to deal
with the substance of the appeal. Before us counsel on behalf of the
appellants were constrained to restrict
their submissions to the
question whether the criteria under
s 99
of the By-law, the
provisions of which are set out hereafter, were adhered to by the
City and the Mayor. In short, the nub of the
appellants’ case,
whether by reference specifically to the By-law or to the labyrinth
of policies, strategies and statutory
provisions, was that heritage
considerations were ignored or downplayed and that the decisions by
the City and the Mayor were therefore
unreasonable, irrational or
tainted by the City’s mistaken position in relation to base
zoning rights.
Section 99
provides as follows:
‘
99.
Criteria for deciding application
(1)
an application must be refused if the
decision-maker is satisfied that it fails to comply with the
following minimum threshold requirements
-
(a)
the application must comply with the
requirements of this By-law;
(b)
the proposed land use must comply with or
be consistent with the municipal spatial development framework, or if
not, a deviation
from the municipal spatial development framework
must be permissible;
(c)
the proposed land use must be desirable as
contemplated in subsection (3); and
(d)
in the case of an application for a
departure to alter the development rules relating to permitted floor
space or height, approval
of the application would not have the
effect of granting the property the development rules of the next
subzone within a zone.
(2)
if an application is not refused under
subsection (1), when deciding whether or not to approve the
application, the decision-maker
must consider all relevant
considerations including, where relevant, the following -
(a)
any applicable spatial development
framework;
(b)
relevant criteria contemplated in the
development management scheme;
(c)
any applicable policy or strategy approved
by the City to guide decision making;
(d)
the extent of desirability of the proposed
land use as contemplated in subsection (3);
(e)
impact on existing rights (other than the
right to be protected against trade competition);
(f)
in an application for the consolidation of
a land unit -
(i)
the scale and design of the development;
(ii)
the impact of the building massing;
(iii)
the impact on surrounding properties; and
(g)
other considerations prescribed in relevant
national or provincial legislation.’
[66]
Section 99(3)
, as amended, provides that certain considerations come
into play when the desirability of a proposed development is being
considered
in terms of
s 99(2)(d).
These are socio-economic impact,
compatibility with surrounding uses, impact on the external
engineering services, impact on safety,
health and wellbeing of the
surrounding community, impact on heritage, impact on the biophysical
environment, traffic impacts,
parking, access and other transport
related considerations, and whether the imposition of conditions can
mitigate an adverse impact
of the proposed land use.
[67]
As can be seen,
s 99
has to be applied in distinct stages. First,
there is the threshold enquiry set out in
s 99(1).
The proposed land
use must be consistent with the municipal spatial development
framework. The base zoning is a convenient starting
point. It does
allow for the kind of development here in question. Insofar as
desirability is concerned, which is intimately associated
with the
core issue, the factors set out in
s 99(3)
of the By-law come into
play. In relation to socio-economic impact, the City’s view was
that the proposed development would
have a positive effect on
commercial life and inner city living and on regeneration and
rejuvenation of the CBD. The City’s
experts in relation to
engineering services, safety and health were all in accord. They took
the view that those aspects were adequately
dealt with by the
proposed development and had no concerns in that regard. So, too,
with the traffic, parking, access and transport
related
considerations, including, the conditions put in place in relation
thereto, (as noted by the court below).
[68]
It is now necessary to deal with the core complaint, postulated in
the court below and before us, namely, that the City and
the Mayor
were averse to dealing with any criticisms concerning heritage
impact, that they had adopted a rigid approach concerning
the base
zoning and assumed the attitude that base zoning trumped or negated
all other considerations.
[69]
Whilst it is unfortunate that City officials, the MPT and the MAP
used language that was sometimes confusing, the question
to be
addressed is whether, in fact, they had regard to the criteria set
out in
s 99
of the By-law, referred to in preceding paragraphs. It is
true that they referred to rights conferred in terms of base zoning
and
on occasion spoke about the sacrifice of rights. It is equally
true that the documents indicate that they engaged with heritage

concerns and considered the massing away from Rose Street as a
significant concession to heritage concerns. The part of the City’s

report set out in para 50 above makes it clear that the City
ultimately did not  consider the primary or base zoning rights

to trump all other considerations. In relation to the title deed
condition, referred to above, upon which the appellant’s

relied, the City adopted the attitude that the title deed condition
would be enforced when building plans are submitted by the
developer.
[70] The mass of
documentation produced by the parties to the litigation is a clear
indication that the full range of countervailing
interests were
seriously and extensively engaged with. At this stage of the
consideration of whether the application for review
of the approvals
by the City and the Mayor was well founded, it is apposite to
consider what judicial review entails. In Endicott
Administrative
Law
at 328 the following appears:
‘
All
public authorities ought to make the best possible decisions (and
Parliament can be presumed to intend that they should do so).
But
that does not mean that the judges have jurisdiction to hold that a
decision was
ultra
vires
on the ground that it was not the best decision that could have been
made.’
[8]
[71] Wade and Forsyth
Administrative Law
state the following:
‘
The
system of judicial review is radically different from the system of
appeals. When hearing an appeal the court is concerned with
the
merits of a decision: is it correct? When subjecting some
administrative act or order to judicial review, the court is
concerned
with its legality: is it within the limits of the powers
granted? On an appeal the question is “right or wrong?”
On
review the question is “lawful or unlawful?”
. . .
Judicial
review is thus a fundamental mechanism for keeping public authorities
within due bounds and for upholding the rule of law.
Instead of
substituting its own decision for that of some other body, as happens
when on appeal, the court on review is concerned
only with the
question whether the act or order under attack should be allowed to
stand or not.’
[9]
[72] Laws J in
R v
Somerset County Council, ex parte Fewings & others
[1995] 1
All ER 513
(QB) at 515d-g stated:
‘
Although
judicial review is an area of the law which is increasingly, and
rightly, exposed to a great deal of media publicity, one
of its most
important characteristics is not, I think, generally very clearly
understood. It is that, in most cases, the judicial
review court is
not concerned with the merits of the decision under review. The court
does not ask itself the question, “Is
this decision right or
wrong?” Far less does the judge ask himself whether he would
himself have arrived at the decision
in question. It is, however, of
great importance that this should be understood, especially where the
subject matter of the case
excites fierce controversy, the clash of
wholly irreconcilable but deeply held views, and acrimonious, but
principled, debate.
In such a case, it is essential that those who
espouse either side of the argument should understand beyond any
possibility of
doubt that the task of the court, and the judgment at
which it arrives, have nothing to do with the question, “Which
view
is the better one?” Otherwise, justice would not be seen
to be done: those who support the losing party might believe that
the
judge has decided the case as he has because he agrees with their
opponents. That would be very damaging to the imperative
of public
confidence in an impartial court. The only question for the judge is
whether the decision taken by the body under review
was one which it
was legally permitted to take in the way that it did.’
[73]
Schreiner JA in
Sinovich v Hercules Municipal Council
1946 AD
783
at 802-803 said:
‘
The
law does not protect the subject against the merely foolish exercise
of a discretion by an official, however much the subject
suffers
thereby. But the law does protect the subject against stupid by-laws
or regulations, however well intended, if their effect
is
sufficiently outrageous.’
[74] Hoexter makes the
point as follows in
Administrative Law in South Africa
(2 ed)
at 113:
‘
In
administrative law “judicial review” refers more
specifically to the power of the courts to scrutinise and set aside

administrative decisions or rules (delegated legislation) on the
basis of certain grounds of review.’
[10]
[75]
In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZASCA 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC),
O’Regan J explained that s 6 of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA) identifies the circumstances
in which
the review of administrative action might take place. The authority
for that basis is the Constitution.
[11]
[76]
In the present case, the focus before us was whether the City and
Mayor were materially influenced by an error of law in that
they
allegedly adopted the attitude that base zoning negated or trumped
all countervailing considerations. It was also in general
terms
submitted that the approvals were irrational or were so unreasonable
that no reasonable person could have reached that decision.
This, in
essence, was reliance on the grounds of review provided for in s 6(2)
of PAJA. In adjudicating whether those grounds are
justified, we are
precluded from considering whether we would have reached a decision
within a band of decisions, but rather whether
the grounds of review
provided for in s 6(2) of PAJA and relied on by the appellants are
sustainable.
[77]
In determining whether a decision was reasonable or not, factors to
be considered are the nature of the decision, the identity
and
expertise of the decision-maker, the range of factors relevant to the
decision, the reasons given for the decision, the nature
of the
competing interests involved, and the impact of the decision on the
lives and well-being of those affected.
[12]
As taught by the Constitutional Court, although the review function
of courts now has a substantive as well as a procedural ingredient
the distinction between appeals and reviews continues to be
significant.
[13]
[78]
In
Bato Star
the following was stated:
‘
In treating the
decisions of administrative agencies with the appropriate respect, a
court is recognising the proper role of the
executive within the
Constitution. In doing so a court should be careful not to attribute
to itself superior wisdom in relation
to matters entrusted to other
branches of government. A court should thus give due weight to
findings of fact and policy decisions
made by those with special
expertise and experience in the field. The extent to which a court
should give weight to these considerations
will depend upon the
character of the decision itself, as well as on the identity of the
decision-maker. A decision that requires
an equilibrium to be stuck
between a range of competing interests or considerations and which is
to be taken by a person or institution
with specific expertise in
that area must be shown respect by the courts.’
[14]
[79]
Returning to the facts of the present case, as stated above, the
City’s officials, the MPT and the MAP, despite the use
of
somewhat opaque language, in fact had regard to heritage concerns.
They all engaged with the Developer and objectors on that
aspect. In
truth, the balance envisaged by s 99 was achieved. The City’s
experts and those who served on the MPT and MAP
were undoubtedly
qualified to deal with the subject matter, as was the Mayor’s
technical advisor. It is not for the court
to second-guess these
experts, save where they committed a reviewable irregularity. This is
not to imply judicial timidity but
rather to ensure that when
judicial intervention occurs it is based on principle and within the
bounds of the law, including observing
the doctrine of the separation
of powers. The court below, in my view, cannot be faulted for holding
that the City’s experts
had regard to relevant considerations
and were not guilty of the irregularities they were accused of.
[80]
Even if it could be argued that what is set out in the preceding
paragraph is too charitable to the City’s officials
and
departments, there is a further obstacle for the appellants to
overcome. The appeal before the Mayor, it was accepted by counsel
on
behalf of the parties, was an appeal in the wide sense, so that the
merits of the applications for approval could be considered

afresh.
[15]
It amounts to a
re-hearing of the merits of the matter with or without further
evidence or information. It was accepted by counsel
on behalf of the
appellants, that whatever flaws there might conceivably have been in
relation to the decision of the MPT, that
in the event of a finding
that the Mayor’s decision was untainted by a reviewable
irregularity, that would be sufficient
to thwart success in the
appeal.
[81]
In paras 56 and 57 above the Mayor’s reasons for arriving at
her decision, as well as the statement from her opposing
affidavit,
are set out. They undoubtedly reveal that she considered the base
zoning as well as all the other aspects she was obliged
to take into
account. In particular, she took into account heritage concerns
especially those raised by the EHM. She had all the
expert advice she
required in order to enable her to reach a balanced decision in terms
of s 99. Insofar as the allied aspects
related to the core question
are concerned, such as traffic, access and the provisions of parking
bays, as demonstrated above,
the court below dealt with them all in a
manner that cannot be faulted. In the result the appeal must fail.
[82] What remains is the
question of costs. In respect of costs, the court below said the
following:
‘
There
is no reason why the usual position relating to costs in review
matters should not apply. The rule that in constitutional
matters,
the unsuccessful party is ordinarily not ordered to pay costs, does
not apply in this instance.’
[83]
The appellants contended that they were vindicating constitutional
rights and therefore the principle set out in
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009]
ZASCA 14
;
2009 (6) SA 232
(CC) at para 22 applies, namely that,
ordinarily in constitutional litigation, if the government loses it
should pay the costs
of the other side, and if the government wins,
each party should bear their own costs.
[84]
It was submitted on behalf of the respondents that the question of
costs properly falls within the discretion of the court,
having
regard to all of the prevailing circumstances. In the present case it
was pointed out that the
first appellant’s litigation
was funded by Ms Petra Wiese, a neighbour and a person of means who
also has an interest in the
neighbouring building, 35 on Rose Street.
It was pointed out that both Ms Wiese and Professor Todeschini had
property interests
in the vicinity of the building and stood to
benefit in the event of success in the litigation. The agreement to
fund the litigation
included an indemnification by Ms Wiese against a
costs order that might result against the first appellant. In proper
perspective,
the application in the court below was about whether s
99 of the By-law was complied with by the City. The second and third
appellants
had proprietary rights that might be affected by the
City’s decision. The first appellant, as indicated above, was
placed
in funds and indemnified against cost orders.
[85]
Furthermore, the scale of the present litigation was excessive. It
might well have been driven by the funding that was available.
As
described at the commencement of this judgment and demonstrated
later, the issues, properly distilled, were within a narrow
compass.
The necessity for photomontages and extensive affidavits in relation
to the disputation concerning the impact of an 18-storey
building is
questionable. One need not be an architect or a construction expert
to understand that an 18 storey building is imposing.
[86]
As has been stated by this court in
National Home Builders’
Registration Council & another v Xantha Properties 18 (Pty) Ltd
[2019] ZASCA 96
;
2019 (5) SA 424
(SCA) at para 26,  the mere
labelling of litigation as ‘constitutional’ is
insufficient. For the
Biowatch
principle to apply the case
should raise genuine, substantive, constitutional considerations. The
rule does not mean risk-free
asserted constitutional litigation. I
can find no detectable misdirection on the part of the court below in
relation to cost.
[87]
For all the reasons stated above, the following order is made:
1
The application to lead further evidence on
appeal is dismissed with costs, including the costs of two counsel.
2
The appeal is dismissed with costs,
including the costs of two counsel.
_________________
M S
Navsa
Judge of Appeal
APPEARANCES
For
Appellant: P Farlam SC, with him K Pillay
Instructed
by: Edward Nathan Sonnenbergs Inc, Cape Town
Lovious
Block Inc, Bloemfontein
For
First to Third Respondent: L A Rose-Innes SC, with him H J de Vaal SC
Instructed
by: Fairbridges Wertheim Becker,
Cape
Town
McIntyre
van der Post, Bloemfontein
For
Fourth Respondent: S P Rosenberg SC and D W Baguley
Instructed
by: Bernadt Vukic Potash & Getz, Cape Town
Honey
Attorneys Inc, Bloemfontein
[1]
Section
27(18) provides: ‘
No
person may destroy, damage, deface, excavate, alter, remove from its
original position, subdivide or change the planning status
of any
heritage site without a permit issued by the heritage resources
authority responsible for the protection of such site’.
[2]
The applicable City of Cape Town: Municipal Planning By-Law is
contained in PN 206 in PGE 7414 of 29-06-2015.
[3]
Section 38(2) provides that when a heritage society receives a
notice from a person intending to undertake a development listed
in
s 38(1), and has reason to believe that heritage resources will be
affected, it must require such person to submit an impact
assessment
report. It is common cause that no notice was issued by either the
Developer or to responsible heritage authority.
[4]
‘Everyone has the right -
(a) to an environment
that is not harmful to their health or wellbeing; and
(b) to have the
environment protected, for the benefit of present and future
generations, through reasonable legislative and other
measures that
-
(i) prevent pollution
and ecological degradation;
(ii) promote
conservation; and
(iii) secure
ecologically sustainable development and use of natural resources
while promoting justifiable economic and social
development.’
[5]
The Mayor who made the decision in question is no longer in office.
[6]
Previously s 22(
a
)
of the Supreme Court Act 59 of 1959.
[7]
De
Aguiar v Real People Housing (Pty) Ltd
[2010] ZASCA 67
;
2011 (1) SA 16
(SCA) paras 9-12 and the authorities
there cited.
[8]
T Endicott
Administrative
Law
4
ed (2018).
[9]
Wade & Forsyth
Administrative
Law
11
ed (2014) at 26.
[10]
C Hoexter
Administrative
Law
2ed (2012) at 113.
[11]
Para 25.
[12]
Bato
Star
Para
45.
[13]
Bato
Star
Para
45.
[14]
See para 48.
[15]
Golden
Arrow Bus Services v Central Road Transportation Board and Others
[1948] 3 All SA 478
(A);
1948 (3) SA 918
(A) at 925,
1948 (3) All SA
478
(A);
South
African Broadcasting Corporation v Transvaal Townships Board and
Others
1953 (4) SA 169
(T) at 178A-D;
Tikly
and Others v Johannes NO and Others
1963 (2) SA 588
(T) at 590G-H.