Van der Westhuizen and Others v Butler and Others (9871/2008) [2008] ZAWCHC 59; 2009 (6) SA 174 (C) (20 August 2008)

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[2008] ZAWCHC 59
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Van der Westhuizen and Others v Butler and Others (9871/2008) [2008] ZAWCHC 59; 2009 (6) SA 174 (C) (20 August 2008)

REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case No:
9871/2008
In the matter between:
dennis
mark van der westhuizen
First Applicant
amanda
leigh van der westhuizen
Second Applicant
the
camps bay residents and
ratepayers
association
Third Applicant
And
david
michael butler
First Respondent
john
stephen mckeon
Second Respondent
the
city of cape town
Third Respondent
the premier of the province of
the western cape
Fourth
Respondent
nedbank limited
fifth
respondent
the member of the executive council
for environmental affairs and
development planning for the
province of the westrn cape
sixth
respondent
CORAM : D M DAVIS
J
JUDGMENT
BY : DAVIS J
FOR THE APPLICANT : ADV. BINNS – WARD SC &
ADV I C BREMRIDGE
INSTRUCTED
BY : SLABBERT VENTER YANOUTSAS
INC.
FOR THE RESPONDENTS
1
st
& 2
nd
: ADV SCHALK BURGER (SC)
ADV H C
SCHREUDER
INSTRUCTED
BY :
Johan du Plessis Attorney
DATE OF
HEARINGS : 12 AUGUST 2008
DATE OF
JUDGMENT : 20 AUGUST 2008
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO
: 9871/2008
DATE
: 20
AUGUST 2008
In the matter between:
DENNIS
MARK VAN DER WESTHUIZEN
APPLICANT
and
DAVID
MICHAEL BUTLER
RESPONDENT
____________________________________________________
JUDGMENT
____________________________________________________
DAVIS, J
Applicants seek the following interim
interdictory relief:-
1. An order interdicting and
restraining the first and second respondents from proceeding with any
further building work or construction
on erf 590, Camps Bay, at No 35
Camps Bay Drive, Camps Bay.
2. An order interdicting and
restraining the first and second respondents from selling,
transferring or otherwise alienating erf
590, Camps Bay.
These interdicts are sought pending
the final determination of:-
1. A review proceeding launched on the
same papers for the setting aside of the approval purportedly granted
by third respondent
in terms of section 7 of the National Building
Regulations and Building Standards Act 103 of 1977 (‘The Building
Act’) of building
plan applications submitted by first and second
respondents in terms of section 4 of the Act in respect of the
structure under
construction and also setting aside the decisions
purportedly in terms of section 15 of the Land Use Planning Ordinance
15 of 1985
(LUPO) granting departure from designing scheme
regulations in respect of the use and development of respondents’
property, as
well as the decision by fourth respondent purporting to
relax restrictive conditions of title registered against the title
deeds
of respondents’ property.
2. An application to be brought
thereafter for the demolition of the construction on the first and
second respondents’ property
to the extent that this cannot be
altered or regularised so as to comply with the zoning regulations
and the applicable restrictive
conditions at the time.
The respondents have resisted the
relief primarily on two grounds:
1. Urgency.
2. Applicants failed to exhaust their
internal remedies.
URGENCY
Mr
Burger, who appeared together with Mr Schreuder for the first and
second respondents, submitted that the grounds of urgency relied
upon
were based upon the fear that the completed state of the building
might render an eventual successful review
brutum
fulmen
;
in other words, no order for demolition would be granted a successful
review notwithstanding due to a reluctance on the part of
the Court
to order demolition of the completed building. In addition,
applicants articulated on apprehension that respondents
might dispose
of the property pending the resolution of their review application to
which I have already made reference. Mr Burger
submitted that
both of these grounds had been addressed in an undertaking that had
been given by the respondents. The undertaking
initially proffered
by first and second respondents was then amplified in court. In its
final form it read thus:
“
The
respondents will not rely on the state of completion of the structure
post 20 June 2008 in any future application, process or
proceeding
relating to the building whether dealing with the relaxation or
departure of any title or zoning condition.”
In
addition, Mr Burger submitted that applicant had delayed unreasonably
is
in
launching
this application.
Mr Binns-Ward, who appeared together
with Mr Bremridge on behalf of the applicant, submitted that the test
for urgency was whether
the relief sought would be rendered nugatory
if the matter were to be heard in the ordinary courts.
The matter was urgent because the
undertaking could not adequately safeguard applicant’s rights.
Further there had been no unreasonable
delay on the part of
applicants.
In Mr Binns Ward’s view, the matter
was urgent because the undertaking could not adequately safeguard
applicant’s rights. Further
there had been no unreasonably delay
on the part of applicants. These arguments require recourse to the
factual background.
BACKGROUND
Building work had been in progress on
first and second respondents’ property for some while before it had
attracted the concern
of applicants. To the extent relevant, the
progress of events between the commencement of activity prior to
building on respondents’
property and the institution of the
applicant are set out in the founding affidavit as follows:
“
During
the course of 2007 second applicant and I noticed that the previously
existing dwelling house on the respondents’ property
was demolished
and that certain excavation on the property had started. We became
aware some time during the course of 2007, though
we cannot recall on
what date, that construction on the respondents’ property had
commenced. At that time we had no reason
to suspect that there had
been any irregularity in the approval of building plans for
construction on the respondent property or
the granting of departures
in respect thereof. Indeed, we were unaware that any departures had
been sought or granted. We furthermore
assumed that the local
authority would not have approved any departures or deviations from
applicable law in respect of the construction
on the respondent
property without reference to surrounding property owners, including
second applicant and I. We also had no
reason to suspect that the
construction being carried out on the respondent property was in any
way unlawful. In this regard
we relied on the local authority to
conduct itself in accordance with the applicable law and more
particularly to refuse to grant
approval of any plan which did not
comply therewith. We therefore assumed that any plan which had been
passed in respect of construction
on respondents’ property had been
lawfully passed and complied with applicable law and further that no
departures or amendments
of title deeds had been granted in respect
thereof. On that basis similarly assumed that the construction
which was taking place
on respondents’ property was lawful and in
accordance with properly approved plans.
The construction on the respondent
property continued until approximately the commencement of the
builders’ holidays in December
2007. At that stage construction
on the respondent property had reached the point where the wet works
up to and I believe including
level 3 of the building had been
completed. To the best of our recollection, the concrete slab for
level 3 had been laid and
the external and internal walls at level 3
had been constructed at that time. Not suspecting that there was
anything untoward
or improper with regard to the building activities
being carried on on respondents’ property, second applicant and I
did not
at that time take particular notice of the precise extent or
nature of construction thereon.
In the period in Christmas 2007 and
new year, and while we were in Clanwilliam on holiday, I was
introduced to Mr Chris Willemse…
In the context of that
discussion, Mr Willemse said to me that he thought that there were
certain irregularities relating to
the construction on the
respondents’ property and suggested I investigate the situation…
Nevertheless, on my return to Cape
Town in January 2008, I visited the third respondent’s building
inspector, Mr Wilkinson, said
to him that I was concerned and that I
had been advised that there may be certain irregularities in respect
of the construction
being carried out on the respondents’ property
and requested that he investigate and report back to me in this
regard… There
was, however, no construction taking place on the
respondents’ property at this stage due, I understand, to the
builders’ holidays…
I have subsequently discovered that
the building contractor with whom the respondents had contracted to
carry out the construction
on the property had gone insolvent and
that for that reason the building work did not commence in the new
year. It apparently
took the respondents some time to conclude a
contract with a new contractor and it was not until very recently, I
believe some
time during April or May 2008, that construction
re-commenced.
Nevertheless, on 13 February 2008, Mr
Willemse, Mr Kinderwater and I attended the third respondent’s
offices to inspect the plans…
I emphasise it was not until I
attended at the third respondent’s offices with Mr Willemse that
second applicant and I became
aware that either the first set of
plans numbered 484221 or the second set of plans numbered 499482 had
been approved by the third
respondent. At that stage we were as yet
unaware that the departures had been granted or that title deed had
been relaxed as
aforesaid…
In the circumstances, second
respondent and I instructed a town planning expert, Mr Tommy Brummer,
to attend at the offices of the
third respondent and investigate the
third respondent’s file and in particular to consider the plans
which had been approved
in respect of the respondents’ property
2005 and 2007 as explained above. Mr Brummer duly did this and
reported back to
me in respect thereof on 3 April 2008.
From Mr Brummer’s report, it became
apparent that the departures referred to above had not been lawfully
granted, that the 1,57
metre lateral building plan title condition
had been improperly relaxed, that the plans reflected a
contravention of the title
deed relating to the street building and
that there appeared to be an infringement of the zoning scheme with
regard to the number
of domestic quarters reflected on the plan, and
in the light thereof that the first and second set of building plans
should not
have been approved.”
The
light of this chronology, as set out by applicants is, essence,
common cause. Mr Binns-Ward submitted that the applicants
had
not forfeited any claim to urgency by failure to institute
proceedings at a sooner date. Their conduct and the inquiries
as
set out in the founding affidavit which led up the litigation were
directed and obtaining the facts clarifying the legal position
and
seeking to engage with first, second and third respondents in order
to avoid litigation. In his view, the progress of building
on
respondents’ property was well short of that reached before similar
proceedings were instituted for interdictory relief by
a neighbour
and by the Ratepayers Association as took place in
Camps
Bay Residents and Ratepayers Association and Another v Avadon 23
(Pty) Ltd
(unreported
judgment of
Foxcroft
J, 18 March 2005: CPD case No 17364/05). See also
P
S Booksellers (Pty) Ltd and Another v Harrison and Others
,
2008(3) SA 633 (C) at paras
101
to 105.
Mr
Binns-Ward submitted further that the undertaking offered by first
and second respondents which I have set out earlier in this
judgment
did not in any way subvert applicants’ case for urgency. The
undertaking notwithstanding, if the construction of the
building
continued, there would always be the danger that the then existing
construction would be taken into account by the relevant
authorities
or the Court adjudicating the application for review
mero
motu
that the Court or a later relevant authority would consider that
first and second respondents had built themselves into an impregnable

position and therefore there was no basis by which the Court could
order the demolition of the building. Alternatively the impregnable

position would then have an influence on proceedings whatever
undertaking had been offered in the first place by applicants.
Mr Burger took issue with the
submissions made by Mr Binns-Ward concerning the delay in the
institution of the proceedings.
In his view, third applicant knew
about the alleged grounds of review from at least March 2007. First
and second applicants
and the chairperson of the third applicant
discussed the construction as outlined in the affidavit of first
applicant during the
2007 December holidays. By then the extent of
the structure would have been obvious to anyone who cared to look,
especially to
the first and the second applicants, the decision
sought to be impugned had been taken a long time previously, the
application
was issued in the court recess on 20 June 2008 and
enrolled for hearing on 1 July 2008. By then the construction of
the building
was in an advanced stage of completion, some R13,4
million of expenditure had been incurred by respondents. The
application had
therefore been brought with unreasonable delay and
accordingly there was no basis to contend that this Court, on the
matter of
urgency, should hear the application for interim relief.
I determined at the commencement of
the hearing that the matter was in fact urgent and having outlined
the full range of arguments
presented to me by both parties, it is
incumbent upon me to provide reasons for this decision.
In my view, Mr Binns-Ward correctly
contended that the 180 day rule which had been raised as support for
Respondent’s proposition
that the application before this Court was
not urgent is not applicable directly to the question of urgency in
respect of an application
for interim relief. The applicants had
explained in some detail how and why it had taken such a long time to
launch this application.
Those explanations are, in my view,
plausible. They are the relevant grounds to be assessed in
determining whether the applicant
had acted in an unreasonable
fashion.
Furthermore, I am satisfied that
whatever undertaking may be given, there is sufficient precedent to
justify the concern that the
existence of a completed building would
and could have an inference on the ultimate relief granted in a
review proceeding and accordingly
and for that reason the application
as launched was justified.
With the issue of urgency of the
present application for interim relief then having been determined, I
now turn to the substantive
questions regarding the interim relief
sought.
REQUISITES FOR INTERIM RELIEF
The requisites for interim relief are
trite. Applicants must show:
1. A
prima
facie
right.
2. A well-grounded apprehension of
irreparable harm if the interim relief is not granted and the
ultimate relief is eventually granted.
3. A balance of convenience in favour
of the granting of the interim relief.
4. The absence of any other
satisfactory remedy.
As stated earlier, much of the
argument raised by respondents concerned the question of internal
remedies which applicant had failed
to exhaust
There
was an additional argument developed by Mr Burger in support of the
submission that no
prima
facie
right existed in this case sufficient to justify the relief sought.
He contended that a unique aspect of this case was that the
building
had taken place pursuant to permission (although in the case of staff
quarters, it appears to be common cause that the
construction had
exceeded the permission which had been so granted). Respondents’
version is contained in the answering affidavit
in which the
following is stated:
“
The
second respondent and I are not acting unlawfully in presently
continuing with the construction work. We are doing so strictly
in
accordance with duly approved building plans. Until such building
plans have been reviewed and set aside, the applicants do
not have a
prima
facie
case for an interim order.”
Respondents
therefore contend that the existence of building plan approval
excludes any proper basis for the applicants to establish
even
prima
facie
that the construction work they seek to interdict is unlawful.
Respondents’ contention is essentially based on a judgment
delivered
by
Farlam
,
A J (as he then was) in
Coalcor
(Cape) (Pty) Ltd and Others
,
the
Boiler Efficiency Services CC and Others
,
1990(4) SA 349 (C) at 358 to 360. In particular
Farlam
,
A J said:
“
The
basis of applicants’ claim is that if the review succeeds and the
rezoning of the property is set aside, first respondent
will, by
operating a coal yard on the property, be acting in contravention of
the relevant zoning provisions and therefore illegally
and will
consequently be competing unlawfully with them and thus committing a
delict against them in respect of which they have
already obtained a
final interdict. If I grant the interim interdict asked for against
first respondent, I shall be interdicting
it from committing an act I
have already held to be unlawful at this stage, and I’ll be issuing
the interdict merely because
the action upon which they are presently
engaged may be rendered unlawful at a later stage. In my view,
applicants have not established
the right to an interim interdict
against first respondent because they have not shown, even
prima
facie
,
that first respondent is at present committing a delict against them…
In
my view, second respondent’s decision to rezone the property is not
void, but at best for the applicants voidable, and as I
has not yet
been set aside, applicants have not, as I have already said,
established one of the requisites for an interim interdict
in this
case, namely a right established
prima
facie
even if open to some doubt. The claim for an interdict to prevent a
delict must accordingly fail because no delict has been established

at this stage, even
prima
facie
.”
This
judgment has not met with universal approval. See for example
Conradie
,
J (as he then was) in
Corium
(Pty) Ltd v Myburgh Property Langebaan (Pty) Ltd
,1993(1)
SA 853 (C) at 856.
As
representative of an alternative, approach
Nicholson
J in
Ladychin
Investments (Pty) Ltd v South African National Roads Agency Ltd and
Others
,
2001(3) SA 344 (N), at 357C to E held:
“
Numerous
examples were bandied about the Court to illustrate in what
circumstances the Court would be justified in granting interim
relief
on the basis that there was a strong case on review. If the
advertisement had been published in a foreign language or
not
published at all, neither counsel had any difficulty in agreeing that
interim relief had to be granted. In my view the Court
has to
evaluate the prospects of success in the review application. If
there are such prospects of success, then the Court has
to discretion
whether to grant interim relief in the form of a prohibitory
interdict.”
Mr
Binns-Ward submitted that in any event the authority which flowed
from Coalcor had been displaced by the approach adopted by
the
Supreme Court of Appeal in
Oudekraal
Estates (Pty) Ltd v City of Cape Town
,
2004(6) SA 222 (SCA). In that case it was made clear that an
unlawfully-made administrative decision was nothing more than a

relevant fact to be taken into account.
The
importance placed by Mr Binns-Ward on the
Oudekraal
case necessitates a brief examination
of this important decision. In that case, appellant’s predecessor
in title had secured
approval in terms of the Townships Ordinance of
1934 (Cape) during the 1950’s from the Administrator of the Cape
for the development
of certain land on the slopes of Table Mountain.
The proposal was therefore to develop a township. It appeared that
this decision
to grant township development rights to the applicant
had ignored the existence on the land of several kramats, that is
ancient
graves of spiritual leaders of the Moslem community and
places of pilgrimage.
The Supreme Court of Appeal found that
the presence on the land of religious and cultural sites was of such
significance was a relevant
consideration that should have been taken
into account before approval was granted. In accordance with
general administrative
law principles, the Court said that the
approval by the administrator of the township was unlawfully invalid
at the outset See
(para 26). However, the Court went on to hold
that this did not mean that the City Council was entitled to ignore
the apparent
approval and refused to approve the engineering services
plan which was necessary to allow appropriate services to be provided
to the township.
The relevant passage of the judgment
reads:-
“
[W]as
the Cape Metropolitan Council entitled to disregard the
administrator’s approval and all its consequences merely because
it
believed that they were invalid, provided that its belief was
correct? In our view, it was not. Until the Administrator’s

approval (and thus also the consequences of the approval) is set
aside by a court in proceedings for judicial review, it exists
in
fact and it has legal consequences that cannot simply be overlooked.
The proper functioning of a modern state would be considerably

compromised if all administrative acts could be given effect to or
ignored depending on the view subjects take to the validity
of the
act in question. No doubt it is for this reason that our laws has
always recognised that even an unlawful administrative
act is capable
of producing legally valid consequences for so long as the unlawful
act is not set aside.” (para 25)
The Court concluded that the
administrator’s approval existed in fact even if it did not exist
in law and the Council could not
ignore this decision. It said:
“
[T]he
proper inquiry in each case - at least at first - is not whether the
initial act was valid, but rather whether its substantive
validity
was a necessary precondition for the validity of consequent acts.
If the validity of consequent acts is dependent on
no more than the
factual existence of the initial act, then the consequent act will
have legal effect for so long as the initial
act is not set aside by
a competent court.” (para 31).
The conclusion reached was therefore
that the validity of the act subsequent to the grant of permission
did not depend upon the
grant of permission did not depend upon the
legal validity of the first act but only upon is factual existence.
The Council had
power to approve the relevant engineering plans even
if the administrator’s approval was invalid.
Prof
Forsyth. ‘The theory of the second actor revisited’ (2006
Acta
Juridica
209 at 224) makes a very important point with regard to the Oudekraal
judgment, which is of relevance to the present dispute:
“
The
Court rightly remarks that `the proper inquiry in each case - at
least at first time - is not whether the initial act was valid,
but
rather whether substantive invalidity was a necessary precondition
for the validity of subsequent acts.”
But it then goes on to conclude
without a close analysis for the powers of the Cape Metropolitan
Council under the relevant ordinances
that the importance of
certainty meant that:-
[A] public authority cannot justify a
refusal on its part to perform a public duty by relying without more
on the invalidity of
the originating administrative act; it is
required to take action to have it set aside, not simply to ignore
it.
This dictum seems to suggest, in the
interests of certainty, a general rule of thumb to the effect that
all public authorities must
accept as valid the decisions of other
authorities - or launch a challenge to their validity in court. But
this cannot be a general
rule; and the availability of collateral
challenges shows that this is so. There are occasions… where the
second actor is entitled,
indeed is bound, `simply to ignore’ the
invalid first act. Other values (such as personal liberty) as well
as the words in
the relevant statute will in the appropriate
circumstances trump certainty. An analysis of the powers of the
Cape Metropolitan
Council would probably have concluded that it had
power to act on the engineering services plan even if the original
approval only
existed in fact, but there cannot be a rigid rule that
this is the case. It depends in each case on the legal analysis of
the
powers of the second actor.”
This
analysis, by way of extension, is, in my view, applicable to the
facts in the present case. Even if the initial decision regarding

the building remains “valid” until set aside (on review), the
Court must decide whether the full consequence of that first
act
remains to be rigidly enforced until set aside, in which case there
could be no interim relief sought or granted or whether
it can
examine the factors that go to the inquiry to establish interim
relief before deciding whether to exercise its discretion.
In my
view the clear implications of
Oudekraal
,
supra, particularly as explicated by Forsyth, together with a
rejection of the rigid formalism that would subvert all such
applications
(in effect, along the
Coalcor
approach), even where the interests of justice compel otherwise,
dictates that there should be a rejection of respondents’ argument

based on
Coalcor
,
supra. The permission which had been initially granted and which
will now be the subject matter of a review application cannot
be an
irresistible obstacle to the interim relief sought in this case.
DELAY
Respondents have contended, secondly,
that the applicants are precluded from obtaining relief on review by
reason of the institution
of proceedings allegedly outside the 180
day limit prescribed in terms of section 7(1) of the Promotion of
Administrative Justice
Act 3 of 2000 (‘PAJA’) and by reason of an
alleged failure to exhaust domestic remedies as contemplated in terms
of section
7(2) of PAJA.
I turn then to deal with this
objection, namely the 180 day rule. Section 7(1) of PAJA provides:
“
Any
proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than 180
days
after the date.
(a) subject to sub-section (2)(c) on
which any proceedings instituted in terms of internal remedies as
contemplated in sub-section
(2)(a) have been concluded; or
(b) where no such remedies exist on
which a person concerned who was informed of the administrative act
became aware of the action
and the reasons for it or might reasonably
have been expected to have become aware of the action and the
reasons.”
From the provisions of section 7(1),
the relevant 180 day period should commence, not on the date of the
approval of the building
plans, but from the date the applicants
became aware of such approval. Mr Binns-Ward submitted that,
on a proper interpretation,
particularly having regard to the
reference in the section to applicants’ knowledge of the reasons
for the decision, the 180
day rule would commence from the time the
aggrieved party first became aware, or should first reasonably have
become aware of the
characteristics of the administrative action
which it contends are unlawful.
In my view it is correct that persons
who are not entitled to notice of building plan applications by their
neighbours because the
statute entrusts the local authority to act as
a guardian to look to the protection of their interests, are not
required to check
actively for building plans every time any building
work commences on a neighbour’s property.
This application is predicated on what
applicant considers to
be
intrusive and objectionable effects of alleged irregularities is the
relevant phase. The overall effect was not something that

applicants could be reasonably expected to become aware of merely
from viewing the foundations of the construction. However,

applicant did not stand by and induce, on the part of respondents, a
the misapprehension that there was to be no complaint against
the
intended structure. As I have already set out in the facts,
applicants sought to engage with the respondents and negotiate
some
form of compromise. Indeed, as I shall refer to later,
correspondence was exchanged between the parties at a fairly early

date, which would have put respondents on their guard. I do not
consider, therefore, that, on the basis of the 180 day rule in
S 7(1)
of PAJA, that it can be said that applicants have not established a
prima
facie
right.
That, therefore, leads to the final
and third objection raised by respondents, namely the failure to
exhaust internal, domestic
remedies.
DOMESTIC REMEDIES
Mr Burger submitted that the
applicants enjoyed internal remedies which they had failed to exhaust
(see section 7(2)(a) of PAJA).
In this connection first and second
respondents contended that applicants should have pursued an appeal
in terms of section 9
of the Building Act. In particular, Mr Burger
contended that applicants should have explored a remedy in terms of
section
9 of the National Building Regulations Act, which determines
that any person who disputes the interpretation or application by a

local authority of any national building regulation or any other
building regulation or by-law may appeal within a prescribed period

to a review board.
In
this respect, Mr Burger submitted that the application for a review
was based
inter
alia
on the erroneous interpretation or application by third and fourth
respondents of the relevant National Building Regulations (insofar
as
the approval of building plans submitted by first and second
respondents are concerned), their interpretation of such building

regulations and/or the zoning scheme regulations.
Mr Binns-Ward referred to the
express wording of section 9(1)(c) of the Building Act which
provides:
“
Any
person who disputes the interpretation or application by a local
authority of any national building regulation or any other
building
regulation or by-law may, within the prescribed period in the manner
and upon payment of the fees prescribed by regulation,
appeal to a
review board.”
Mr Binns-Ward contended thus that
the applicants case was not about a dispute concerning the
interpretation of any national
building regulation or by-law.
Applicants’ case, on review, was premised on the failure by the
local authority to comply with
section 7 of the Building Act and the
illegality of the underpinning decisions to grant departures from the
zoning scheme regulations
and “relax” applicable title deed
restrictions.
These opposing contentions necessitate
a brief examination of the grounds of review which have been relied
upon in the review application.
Briefly they can be stated thus:
Applicants contend as follows: the building, as reflected in the
approved plans, is not in
accordance with applicable law, more
particularly they claim it contravenes the applicable provision of
the zoning scheme regulations
in the following respects:-
1. Section 11, in that it is
constructed in part on a sole retaining structure or similar device
exceeding 2,1 metres in height
above the existing ground level for
which the local authorities’ consent was not obtained.
2. Section 98, in that by reason of
the contravention the façade of the building at a number of
points is more than 10 metres
above the level of the ground abutting
such façade.
3. Section 53, in that the building
exceeds three stories in height. Consideration of the building plan
shows five stories above
the basement storey. Respondent has
sought to avoid this conclusion by reliance on section 71 of the
zoning scheme’s regulations.
By contrast, applicants contend that
respondents reliance on section 71 of the zoning scheme regulations
are misplaced. Section
71 is in chapter viii of the zoning scheme
regulations which, save where expressly otherwise provided, is
applicable to buildings
“other than dwelling houses, double
dwelling houses, groups of dwelling houses, and outbuildings
thereto.”
4. Section 20(3), in that the building
is provided with two domestic staff quarters. Respondents have
conceded a breach of the
zoning scheme in this respect and have
indicated that they will be required to submit rider plans changing
some of the area currently
labelled staff accommodation to bedroom
space.
In addition, applicants contend that
the building, as reflected in the approved plans, is in contravention
of the reciprocal restrictive
title deed conditions applicable to
applicants’ and respondents’ properties, in that the contemplated
structure infringes:-
1. Title deed condition 6A.1(a), in
that more than half of the area of the erf is built upon.
2. Condition 6A.1(d), in that it falls
in part to be erected less than 4, 72 metres from the street
boundary.
3. Condition 6A.1(f), in that it falls
in part to be erected within 1, 57 metres of the lateral boundaries.
Applicants further contend that the
purported approval of the building plans by the local authority
occurred, pursuant to its unlawful
grant of certain departures from
the minimum setback provisions in the applicable zoning scheme
regulations without advertisement
thereof to the applicants as
contemplated by section 15 of LUPO.
Further, the failure by the local
authority to comply with the provisions of the Building Act, more
particularly its purported approval
of the building plans without
consideration of a motivated report from the building control officer
and without consideration of
the disqualifying factors as set out in
section 7(1)(b)(ii) of the Act. The purported approval of the
building plans applications
was undertaken by a functionary not
possessed of the requisite delegated authority. Applicants contend
that respondents have
provided no evidence which they would have been
entitled to obtain from the third respondent before the Court to
refute this allegation.
Applicants also allege the failure by
the local authority to comply with the provisions of the Building
Act, more particularly its
approval of the building plans,
notwithstanding the derogation from the value of the applicants’
neighbouring property that will
result from the construction of the
proposed building.
Applicants further contend that there
was an unlawful and unauthorised decision by the provincial authority
when it purported to
relax applicable title deed restrictions.
The
only manner, according to applicants, in which a servitudinal title
deed condition could be competently removed, suspended or
altered,
was consensually or in terms of the Removal of Restrictions Act.
See in this regard
Beck
and Others v Premier Western Cape and Others
,
1998(3) SA 487
(C)
at 510. Applicants contend that neither route was followed in
making the decision which was relied upon by the City in approving

the plans.
Applicants contend further that there
was no statutory basis for such informal relaxation.
While certain of the grounds of review
could, on an interpretation, fall within section 9(1)(c), that is the
question as to whether
three or five storeys were to be constructed,
the thrust of the application for review, as I have set it out, is
based not on an
interpretation, but on legality.
In addition, section 9(1)(c) makes it
clear that the interpretation concerns a National Building Regulation
or other building regulation
of by-law. Much of the review turns
upon zoning scheme regulations, which are not sourced in a by-law but
in LUPO and according
must fall outside of the scope of section
9(1)(c), hence section 9.(1)(c) cannot be construed to equate to a
complete internal
remedy necessary to justify the argument that the
applicants are required to exhaust these internal remedies before
proceeding
with the relief.
In summary thus, the review
application is based on an alleged misinterpretation, non-application
of the zoning scheme, not on a
by-law or building regulation.
With
regard to exhausting domestic remedies,
Hoexter,
Administrative Law in South Africa
,
at 480 contends that:
“
Review
is prohibited unless any internal remedy provided for in any other
Act or any other law has been exhausted. The Court is
obliged to
turn the applicant away if it is not satisfied that internal remedies
have been exhausted and may grant exemption from
the duty only in
exceptional circumstances where it is in the interests of justice to
do so. It may well be asked whether this
statutory duty or pass
constitutional muster or whether it be regarded as unjustifiable
infringing the right of access to a court
of law. In this regard,
much depends on how the Courts interpret the adjective “internal”
and the phrase “any other law”.
These terms ought to be read
restrictively to include only remedies specifically provided for in
the legislation with which the
case is concerned.”
I agree with this contention by the
learned author. In this case, were one to give the section the
meaning contended for by respondents,
it would be a very wide
interpretation of the section to include remedies which do not appear
clearly from the wording of the section
and thereby would result in
the subversion of applicants’ right of access to a court as
constitutionally enshrined.
This conclusion leads to the question
of an apprehension of irredeemable harm.
APPREHENSION OF IRREDEEMABLE HARM
The
purpose of the interdict which is being sought is to preserve the
status
quo
pending the determination of the review application.
I
have already accepted applicants’ contention that their prospects
of obtaining a demolition of all or part of the offending
building
may be irredeemably adversely affected if the construction work as
proposed is completed by the time they obtain final
judgment in the
review application. (See
P S Booksellers
at paras 106 to 109)
.
BALANCE
OF CONVENIENCE
Mr Binns-Ward contended that a
prohibition on the continuance of unlawful building work cannot be
construed as prejudice to
the respondents. On the contrary, he
submitted the only advantages respondents can seek to derive by
continuing to build in the
face of a possible successful application
for review and a subsequent application for demolition is to build
themselves into a
position where a Court would be more reluctant to
exercise its discretion in favour of demolition and in which
administrative authorities
would be more likely to lean in favour of
making decisions that would “regularise” the unlawful structure.
Mr Burger submitted that first and
second respondents had built on the basis of permissions which had
been sought and granted, had
incurred some R13,4 million in
construction, and would suffer considerable prejudice if there was a
lengthy delay in the completion
of the half-completed construction.
I have already indicated my agreement
with applicants’ contention of the danger of first and second
respondents being able to
build themselves into a position from which
only a limited relief would be available, even if applicants are
successful in the
review application.
In addition, from correspondence
generated by Mr C N Willemse, the chair of third
applicant, first and second respondents
have been contacted about
potential building problems probably since 2007, and most certainly
from January 2008. In short, first
and second respondents have
continued to build in the face of a looming review application. That
in itself should weigh heavily
with the Courts in deciding whether to
exercise its discretion and grant interim relief as sought.
In my view, applicants have shown, on
the evidence and the law as I have set it out, compliance with all
the requirements for interim
relief, and for these reasons,
therefore, the following order may be granted:
1. First and second respondents are
interdicted and restrained from proceeding with any further building
work or construction on
erf 1001, Camps Bay, and from selling,
transferring or otherwise alienating and encumbering that property,
pending the final determination
of:
1. The review proceedings, as set out
in paragraph 4 of the notice of motion of 20 June 2006.
2. An application for the demolition
of any construction on the said property that contravenes the
provisions of the restrictive
title conditions applicable there, the
provisions of the zoning scheme applicable thereto, or any other
construction which contravenes
applicable law or is not authorised in
terms of a building plan approved under section 7 of the National
Building Regulations and
Building Standards Act 103 of 1977. Such
application be launched within 15 days of final judgment in the
review proceedings.
3. Save that first and second
respondents are ordered to pay the wasted costs attendant upon the
abortive hearing of 7 August 2008,
the costs of this application are
to stand over until the finalisation of the review application.
________________________
DAVIS, J