S v van Wyk and Another (SS401/2004) [2007] ZAWCHC 6; 2009 (2) SA 175 (C) (13 February 2007)

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[2007] ZAWCHC 6
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Chairperson of the Walmer Estate Residents¿ Community Forum and Another v City of Cape Town and Others (10695/2006) [2007] ZAWCHC 6 (20 March 2007)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
Case
no. 10695/2006
THE CHAIRPERSON OF THE WALMER
ESTATE
1
st
Applicant
RESIDENTS’ COMMUNITY FORUM
AZEEM HASSAN WALELE
2
nd
Applicant
v
THE CITY OF CAPE TOWN
1
st
Respondent
AKBER
HOOSAIN ALLIE
2
nd
Respondent
MAYMONA
ALLIE
3
rd
Respondent
RAZIA
ISMAIL
4
th
Respondent
MOGAMAT
SHAFICK ISMAIL
5
th
Respondent
JUDGMENT DELIVERED THIS TUESDAY, 20
MARCH 2007
CLEAVER
J
[1] An application by the second to
the fifth respondents (“the respondents”) for permission to erect
a building on a vacant erf
owned by them, Erf 168217, Cape Town, was
approved by the first respondent in terms of s 7(1)(a) of the
National Building Regulations
and Building Standards Act, No 103 of
1977 (“the Act”) on 28 July 2006.
[2] The first applicant acts in his
capacity as the Chairperson of the Walmer Estate Agents Community
Forum, an association not for
gain, some of whose members own
property in Walmer Estate, the region or area in which Erf 168217 is
situated. The second applicant
is the owner of a developed property
adjacent to Erf 168217.
[3] The
first and second applicants have applied to review the decision of
the first respondent to approve the respondents’ application.
The
application is opposed by the first respondent which was represented
by counsel. The respondents also opposed the application
by filing
answering papers, but were not represented by counsel at the hearing.
Instead, heads of argument were filed on behalf
of the respondents
in which their grounds of opposition were set out. They adopted the
attitude that they had been dragged into
the application as unwilling
participants and did not wish to incur further costs by engaging
counsel to argue their case.
[4] The grounds of review advanced on
behalf of the applicants are that the first respondent
4.1 Failed to comply with a mandatory
and material procedure prescribed by an empowering provision in the
Act;
4.2 Failed
to comply with s 3 of the Promotion of Administrative Justice Act No
3 of 2000 (“PAJA”);
4.3 Acted
arbitrarily or capriciously.
FAILURE TO COMPLY WITH THE
EMPOWERING PROVISIONS
[5] Under this head, the applicants
contended the first respondent failed to comply with s 6(1)(a), 6(2)
and 7(1) of the Act.
Section 6(1)(a) of the Act reads:
“
(1) A building control officer
shall –
(a) make recommendations to the
local authority in question, regarding any plans, specifications,
documents and information submitted
to such local authority in
accordance with section 4(3);”
[6] The applicants rely in the main on
certain pronouncements in the judgment of
Ex
Parte Porritt
1
.
In
Porritt
’s
case the court had to deal with an application for rehabilitation in
terms of
s 124(2)
of the
Insolvency Act 24 of 1936
. In terms of this
section, an insolvent applying for rehabilitation before the expiry
of a period of four years after his sequestration
may not do so
without the recommendation of the Master that his rehabilitation be
granted. In such cases the Master files a report
in which his
recommendation is set out. The application was not supported by the
insolvent’s trustees and was also opposed by
one of his creditors.
Although the Master appears to have had doubts as to whether or not
the application should be supported, he
ultimately lent it his
support in his report.
[7] Relying on the basis on which the
learned judge declined to accept the recommendation of the Master in
Porrit’s case, counsel
for the applicants argued that for the
recommendation for the building control officer referred to in
s
6(1)(a)
to be valid, it should of necessity appear from it what
factors for and against the application were taken into account by
the building
control officer in reaching his recommendation. It was
submitted that the absence of a discernible basis to justify the
recommendation
would amount to an abdication of his function by the
building control officer.
[8] In my view, the reliance on
Porritt
’s
case is misplaced and not helpful. The recommendation from the
Master which is required in terms of
s 124(2)
of the
Insolvency Act, is
one which is required in order to permit an insolvent to apply for
his rehabilitation earlier than would normally be the case. For
that
reason, it is obvious that the court will require a reasoned
recommendation from the Master in order to decide whether to permit
the rehabilitation in the unusual circumstances. Factors which
influence a court’s decision in granting a rehabilitation order
relate to the manner in which the insolvent conducted his affairs not
only prior to his insolvency but also in the period thereafter.
Also
in issue will be the nature and number of claims lodged against his
estate, the amount of such claims, whether creditors proving
claims
have been called upon to make a contribution to the costs of the
insolvency and whether the insolvent may be required to make
payment
in respect of claims that have not been satisfied out of his current
earnings.
[9] The Oxford Dictionary of English
2
defines the word ‘recommendation’ as follows
“
to put forward (someone or
something) with approval as suitable for a particular purpose or role
... advise or suggest (something)
as a course of action ... advise
(someone) to do something ...”
‘
recommendation’
is also defined as
“
a suggestion or proposal as to
the best course of action, especially one put forward by an
authoritative body ... the action of recommending
someone or
something”
[10] When dealing with the building
control officer it must be borne in mind that in terms of s 5(2) of
the Act he is required to
have the qualifications prescribed by
National Building Regulation to be appointed as such.
[11] An examination of the application
filed by the respondents, reveals that 12 blocks are provided on the
application form, each
reflecting the name of a different department
within the first respondent. The blocks are provided for the
comments from
Director of
Survey and Land Info
,
Medical Officer of Health
(Medical)
,
Chief
of Fire and Emergency Services
,
MOH (Mechanical Engineer)
,
Sewage Reticulation
,
Water Reticulation
,
Transport & Roads
,
LUM
,
Struc Eng. B.D.
,
and
Building Regs
.
In each block the words ‘no objection’ appear either by means of
a stamp or in handwriting, together with the date on which
the
endorsement was made.
In a block at the foot of the
document, the following appears
“
BCO RECOMMENDED IN TERMS OF
SECTION 6(1)(a) OF ACT 103 OF 1977”
Under this a signature appears with
the date 26 July 2006, it being common cause that the signature was
that of the building control
officer.
[12] The applicants’ counsel
submitted that the signature of the building control officer under
the heading which I have quoted
did not constitute his
recommendation. In the answering affidavit file on behalf of the
first respondent, the building control officer
explained how the
various departments within the first respondent had examined the
application and once they had been satisfied that
their requirements
had been met, had cleared the application by endorsing
“no
objection”
on it. He
says that when the plan was submitted to him on 14 July 2006, he
made a positive recommendation to the first respondent
as evidenced
by his signature under the heading to which I have already referred.
[13] Applicants’ counsel persisted
with his argument that the recommendation of the building control
officer should contain a reference
to both the merits and demerits of
the application, but understandably he was unable to indicate to me
what was to be shown if the
building control officer was of the view
that there were no demerits to an application. It was also difficult
to understand what
would be required of a building officer in order
to motivate a positive recommendation. As counsel for the first
respondent pointed
out, if he or she was satisfied that an
application satisfies the requirements of the Act, it is implicit in
any positive recommendation
that he or she is so satisfied. The
logical extension of the argument advanced on behalf of the
applicants is that the signature
and stamp with the words ‘no
objection’ inserted by the various departments is also meaningless
because it communicates nothing
to the decision maker about the
merits and demerits of the application.
[14] However, as explained by the
building control officer, the procedure adopted by the respondent
upon receipt of an application
is first for the plans examiner to
check whether the plans comply with the conditions of the Zoning
Scheme in question. In respect
of the application concerned, she
outlined her requirements on the application form which had to be
complied with before the building
plan could be considered for
approval and ultimately gave her final clearance only on 2 May 2006.
The application reveals that the
examiner identified the relevant
property as being situated in an R 3 sub-zone which permits the
erection of blocks of flats as a
right. Fire requirements were
affixed to the approved building plan and made a condition of
approval. Thereafter the plans were
scrutinised and examined by each
relevant department which was then required to indicate whether it
objected and if so, why. I have
already indicated that no objections
were recorded. In respect of the Fire and Emergency Department, the
documents reflect that
the Chief of Fire and Emergency had considered
the plan and stipulated his requirements before approving it. Once
the plan complied with
these requirements the Chief of Fire and Emergency eventually cleared
the plans on 23 June 2006. The Traffic
Engineering Department also
considered the plans and made comments and only on 1 June 2006 did
they place a
“no
objection”
stamp on the
application, the papers reflecting an endorsement dated 2 May 2006
reading
“Plan as amended
is satisfactory.”.
The
papers also reveal that on 11 April 2006 a meeting of the building
plans liaison team, comprising land use management, traffic
engineering, roads and survey was held at which the application was
considered.
[15] In my view it is clear that when
the Building Control Officer appended his signature to the
application after consideration of
the plans, specifications,
documents and information submitted to the local authority, he made a
positive recommendation that the
application be approved.
[16] Section 6(2) of the Act reads
“
When
a fire protection plan is required in terms of this Act by the local
authority, the building control officer concerned shall
incorporate
in his recommendations referred to in subsection (1) (
a
)
a report of the person designated as the chief fire officer by such
local authority, or of any other person to whom such duty has
been
assigned by such chief fire officer, and if such building control
officer has also been designated as the chief fire officer
concerned,
he himself shall so report in such recommendations.”
The first point made by applicants’
counsel was that for the reasons advanced in his argument relating to
s 6(1)(a), the building
control officer did not submit a
recommendation and consequently the section could not be complied
with. I have already found that
the building control officer did
submit a recommendation.
[17] Argument was also addressed to me
on the meaning of the word ‘incorporate’, it being submitted that
the building control
officer had failed to incorporate the fire
protection plan as required by s 6(2). This submission is highly
artificial. It is clear
that the report of the chief fire officer
was attached to the plan on which the building control officer’s
recommendation was based;
also that such report was attached to the
‘form A’ signed by the building control officer when making his
recommendation. Both
the plan and the ‘form A’ together with the
chief fire officer’s report were submitted to the decision maker
for consideration.
In my view this clearly constitutes sufficient or
substantial compliance with subsection 6(2).
[18] It was also submitted that
because the building control officer had not made a recommendation as
contemplated in s 6(1)(a), the
decision maker could not consider such
recommendation in terms of s 7(1). This section provides that
“
(1)
If a local authority, having considered a recommendation referred to
in section 6 (1) (
a
)
–
(a) is satisfied that the
application in question complies with the requirements of this Act
and any other applicable law, it shall
grant its approval in respect
thereof;
(b) (i) is not so satisfied; or
(ii) is satisfied that the
building to which the application in question relates –
(aa) is to be erected is such a
manner or will be of such nature or appearance that –
(aaa) the area in which it is
to be erected will probably or in fact be disfigured thereby;
(bbb) it
will probably or in fact be unsightly or objectionable;
(ccc) it
will probably or in fact derogate from the value of adjoining or
neighbouring properties;
(bb) will probably or in fact be
dangerous to life or property,
such local authority shall refuse
to grant its approval in respect thereof and give written reasons for
such refusal:
Provided that the …..”
For the reasons already given in
regard to the submissions made on behalf of the applicant in respect
of the building control officer’s
recommendation, this point has
already been dealt with.
NON-COMPLIANCE WITH PAJA
[19] It was submitted on behalf of the
applicants that they had the right or legitimate expectation to be
given notice of the application
to erect the building on Erf 168217
before the first respondent approved the application and that the
failure to do so meant that
they had not enjoyed procedural fairness
in relation to the decision of the first respondent.
It is common cause that the first
respondent’s decision to approve the application constituted
administrative action and that consequently
the provisions of s 3 of
PAJA are in issue. This section reads:
“
3. Procedurally fair
administrative action affecting any person
(1)
Administrative action which materially and adversely affects the
rights or legitimate expectations of any person must be procedurally
fair.
(2) (a) A fair administrative
procedure depends on the circumstances of each case.
(b)
In order to give effect to the right to procedurally fair
administrative action, an administrator, subject to subsection (4),
must give a person referred to in subsection (1) ---
(i) adequate notice of the nature
and purpose of the proposed administrative action;
(ii) a
reasonable opportunity to make representations;
(iii) a
clear statement of the administrative action;
(iv) adequate
notice of any right of review of internal appeal, where applicable;
and
(v) adequate
notice of the right to request reasons in terms of section 5.”
[20] On behalf of the respondents it
was pointed out that the first respondent had never given an express
promise that neighbouring
residents would be given notice of the
applications of the nature in questions or that that had been done as
a regular practice which
the applicants could reasonably expect to
continue
3
.
In
President
of the Republic and Others v South African Rugby Football Union and
Others
4
(“SARFU”) the court said
“
The question whether an
expectation is legitimate and will give rise to the right to a
hearing in any particular case depends on whether
in the context of
that case, procedural fairness requires a decision-making authority
to afford a hearing to a particular individual
before taking the
decision. To ask the question whether there is a legitimate
expectation to be heard in any particular case is,
in effect, to ask
whether the duty to act fairly requires a hearing in that case. The
question whether a ‘legitimate expectation
of a hearing’ exists
is therefore more than a factual question. It is not whether an
expectation exists in the mind of a litigant
but whether, viewed
objectively, such expectation is, in a legal sense, legitimate; that
is, whether the duty to act fairly would
require a hearing in those
circumstances.”
To return to PAJA, s 3(2)(a) provides
that
“a fair
administrative procedure depends on the circumstances of each case”.
[21] The applicants have not made out
a case that the first respondent made any promise from which they
could expect to be given a
hearing or that it by a regular practice
created a legitimate expectation on their part that they would be
given a hearing. In the
papers they do not go much further than to
make the bare and generalised allegation that they had a legitimate
expectation of a hearing.
One ground advanced by counsel for the
applicants was that as far as the second applicant was concerned, his
legitimate expectation
stemmed from the fact that he was the owner of
the adjoining property. As to rights flowing from the ownership of
land in the context
of building in the area, it has been held that
* Owners of an adjoining land have the
right to insist that land adjoining their property must comply with
the town Planning and Zoning
Scheme unless a departure is authorised
by the local authority
5
.
* Owners
are entitled to insist that building applications be not approved if
they trigger one of the qualifying factors in s 7(1)(b)(ii)
of the
Act
6
.
Neither of the situations mentioned
has application.
[22] When dealing with the rights of
the second applicant as a property owner, his counsel made reference
to the fact that the second
applicant contended that the erection of
the proposed building would derogate from the value of his land.
This is an aspect more
properly dealt with in relation to the
provisions of s 7(1)(b) of the Act and as such I will deal with it in
due course.
[23] The decision which the first
respondent arrived at in terms of s 7(1) of the Act was made after
having regard to the requirements
of the Act and any other applicable
law, which would include the provisions of the applicable Zoning
Scheme Regulations. The applicants
do not contend that the Zoning
Scheme or any other applicable law was contravened.
[24] Much reliance was placed on the
judgment in
Erf 167 Orchards
CC v Greater Johannesburg Metropolitan Council
7
.
In that matter,
Wunsh
J, relying on a judgment of the Supreme Court of New South Wales held
that neighbours had the right to heard on the subject of the
approval
of their neighbours’ neighbour’s building plans and in
particular, the siting of a building on the stand. In
Odendaal
v Eastern Metropolitan Local Council
8
Lewis
AJ, as she then was, expressly disagreed with the judgment in
Erf
167
and declined to be
bound by it. In her judgment
Lewis
J explains the following:
“
Another,
and to my mind, more logical approach is the following: both the Act
and the Scheme are legislative instruments for ensuring
the
harmonious, safe and efficient development of urban areas.
Local
authorities are given considerable powers under both Act and Scheme.
Onerous duties are imposed on them by both instruments.
The
essential purpose of the powers afforded and the duties imposed is to
ensure that the objectives of the legislative instruments
are
achieved: that there is a balance of interests within a geographical
community. The local authorities are in effect the guardians
of the
community interest. They are entrusted with ensuring that areas are
developed in as efficient, safe and aesthetically pleasing
a way as
possible. They are required to safeguard the interests of property
owners in the areas of their jurisdiction. That is
why the powers
and rights of owners of immovable property are restricted. Power
over one’s property has never, under our legal
system, been
unfettered. The rights of an owner of land have always been limited
by the common law in the interests of neighbours.
But the rapid
urbanization of countries worldwide and the inevitable need for
regulation that has accompanied it has had the effect
of restricting
full dominion even further than the common law ever did.
…………
..
This did not mean that owners
should have no rights to object to developments around them. On the
contrary, it is essential that
they not be disempowered by
legislative regulation. That is why property owners who wish to make
significant
changes to their properties – through rezoning, for example –
must afford notice to those in their area who may be affected by
the
change, and why the latter have the right to express their views to
the tribunal that makes a decision that could affect their
property
values or the environment in which they live. But a balance does
have to be struck, and the right of an owner to do as
he or she
pleases on his or her property, subject to reasonable limitations,
must be respected. For this reason, amongst others,
a local
authority is given the power and the responsibility to approve
building plans. No doubt it is also the reason why no express
provision is made for neighbours to view, and a fortiori to object,
to plans for the construction of a dwelling or an additional
room or
structure on adjacent property.”
Lewis
AJ then concludes her analysis in the following manner:
“
For
the reasons set out above in relation to the role and powers of local
authorities under the Act and the Scheme, I consider that
neighbours
do not have even an expectation that they may be heard in relation to
the erection of a building, save where a provision
of the Scheme
expressly affords a right to make objections or where the erection of
the building will be in breach of the Act or
the Scheme and thus
unlawful. They would not, then, in the ordinary course, have
standing to sue for the setting aside of a decision.
This view is
fortified by a consideration of the implications of affording to all
neighbours a hearing before building plans are
approved.”
[25] The logical extension of the
argument put forward on behalf of the applicants would be that notice
of any plan to erect or add
to a building would have to be given to
other owners in the township. The question which arises is whether
the notice should be
given to all other owners as in the case of the
amendment of a title deed or simply to neighbouring owners, and if
the latter, where
is the line to be drawn? It is of course also
implicit in the submission on behalf of the applicants that a local
authority would
be obliged to give notice of
all
applications for the approval of building plans and specifications to
persons who might have an interest in such an application.
In
Odendaal’
s
case
Lewis
AJ
alluded to the implications of such a procedure, which hardly need an
explanation. Furthermore, the argument could hardly be advanced
in
respect of a small one-storey residence of medium height which is
unlikely to attract any interest. It is for that reason that
I
believe that the reasoning of
Lewis
referred to above should be supported. The decision whether to give
notice to any person must clearly depend on the circumstances
of the
particular case. Such notice is of course required in the event of
an application for a departure from the provisions of
a Zoning
Scheme.
[26] A final aspect to consider is
that the legal regime for the approval of building plans is an
enabling one and is not restrictive.
It must give effect to the
constitutional right to property which in turn means that it would be
unfair for the local authority
to grant certain development rights to
a land owner which cannot be exercised or given effect to. Property
owners have the right
to erect buildings on their land which comply
with the zoning requirements and conversely, property owners must
know that neighbours
may develop their land in accordance with the
zoning conditions. While the local authority is entrusted with the
power to approve
plans, it must, in a manner of speaking, act on
behalf of the neighbours by ensuring that the disqualifying factors
mentioned in
s 7(1)(b) are not present before approving plans which
otherwise comply with all applicable laws.
THE FIRST RESPONDENT ACTED
ARBITRARILY AND CAPRICIOUSLY
[27] Under this heading, the
applicants sought to rely on an application for the approval of
building plans in respect of an erf in
the area in question by one N
C Sooful (“the Sooful application”). The facts of this
application became known to the applicants
only on 7 February
2007 after their replying affidavit had already been delivered. The
applicants have ascertained that in
the Sooful application a letter
advising neighbours of the application had been despatched. It was
accordingly submitted that because
the first respondent appeared to
have followed a different procedure in the Sooful application, the
procedure in the respondent’s
application was unlawful and should
be set aside. In my view it is not helpful or relevant to refer to
the Sooful application for
the following reason:
* The factual situation is not known.
In particular, it is not known how high the proposed building will be
above the street level.
* The
first respondent may have had some doubt as to whether the
application would trigger any of the disqualifying factors in s
7(1)(b)(ii)
of the Act and wished to hear submissions in that regard.
* The
fact that notice was given to Sooful when there was no departure from
the town planning or zoning scheme does not make it unlawful
not to
give notice in another case. Each case must be dealt with on its own
merits and concomitantly, the exercise of discretion
may well result
in decisions which differ from case to case.
[28] It
was also submitted that the first respondent took into account
irrelevant considerations and ignored relevant considerations
when
coming to its decision. The irrelevant consideration which the first
respondent is said to have taken into account was that
the applicants
were not entitled to make any representations regarding the
application and that there was no obligation on it to
seek the input
of neighbours. I have already dealt with these submissions. It was
also submitted that it was irrelevant that the
Holiday Inn Hotel, a
multi-storey building, was to be found in the same area. Although
reference was made in the first respondent’s
papers to the Holiday
Inn Hotel, I do not interpret the reference to indicate that that
fact played any determining role in its decision.
The relevant
considerations which the respondent is said to have ignored are that
the first respondent ignored the requirements
of ss 6(1), 6(2) and
7(1) of the Act and that the owners of neighbouring properties were
not treated fairly. In regard to these
aspects, I have already found
against the applicants.
[29] The submission to the effect that
the decision taken by the first respondent was irrational since it
was not connected to the
purpose of the empowering provision is also
without substance and has, in effect, been dealt with in connection
with other submissions
made on behalf of the applicants.
[30] The
decision was also said to be unreasonable on the basis that no
sensible authority acting with due appreciation of its
responsibilities
would have made it. In my view there is no
substance in these submissions.
[31] Finally, it was submitted that
the decision of the first respondent was otherwise unconstitutional
or unlawful since it was alleged
that the only documents before the
decision maker were the documents comprising the application in terms
of s 4(2) of the Act and
document titled
“Land
Information Systems Ratepayers Data”.
Based on this, it was submitted that the decision maker could not
have taken into account the provisions of s 7(1)(b) of the Act
and
more specifically, the factors in 7(1)(b)(ii). I have already
referred to the process which was undertaken in examining the
application before it received approval and recommendation from the
building control officer and having regard to the affidavit filed
by
the latter, there is no reason to conclude that the decision maker
did not take into account the provisions of s 7(1)(b) of the
Act.
[32] I referred in para 21 to the
submission on behalf of the applicants that the erection of the
proposed building would derogate
from the value of the second
applicant’s land. As I explained, that submission was brought in
under the argument relating to the
meaning of a right to property.
The
applicants contended that the fact that the building would not be in
keeping with other buildings in the vicinity, more particularly
since
it would be the first four-storey building in the vicinity. (It may
be mentioned that a seven-storey building would be permitted
in terms
of the Zoning Scheme.)
The respondents pointed out that the
proposed building would consist of four
“upmarket”
face brick dwelling units which are
“only”
11,244 metres above ground level. The proposed building will
comprise:-
Basement level parking for eight
vehicles (two bays per dwelling unit), generally below the natural
ground level of the property,
A first level made up of two
apartments 193m² in extent,
A second level made of two apartments
191m² in extent, and
A small third level made up of two
bedrooms, each attached by a staircase to the respective units below
and 45m² in extent.
The applicants’ view as to the
effect which the building would have on the area, although supported
by the
prima facie
view of an appraiser and valuer, was met by the views of two persons
having particular knowledge of town planning and property valuation.

The first affidavit is by Mr David Dewar, Professor of Architecture
and Planning and Deputy Dean of the Faculty of Engineering and
the
Built Environment at the University of Cape Town. He explains the
relationship in urban areas between land values and urban
change. He
records
“
The internal land value of urban
settlements, therefore, is continually fluctuating and adjusting, not
always in predictable ways.
One relatively common feature, however,
is that when the dominant population dynamic is growth, the general
tendency is for land
values to increase because of increased demand
and for net densities to increase – as the unit land value
increases, the market
response is to use land more efficiently and
intensively. In these circumstances, well located areas and areas of
high amenity in
particular will commonly experience processes of
intensification, frequently to the maximum levels allowed through
public regulation.”
………..
“
Almost
always, the direction of these changes is towards allowing greater
intensification: it is almost never in the opposite direction.

Again, this is entirely consistent with the land market. As demand
increases, the unit price of land increases and this requires
more
efficient use of land.”
“
Most of these dynamics have
occurred in Walmer Estate. As the popularity of the area has
increased, demand for land has grown and
prices have escalated
dramatically, particularly over the last few years. Since the area
is an established area, many of the housing
units over sixty years
old, change has been incremental. In almost all cases of new
development, the dominant tendency has been
towards residential
infill and vertical expansion.”
To illustrate this point, he attaches
photographs showing the proposed new development in Upper Adelaide
Road, Upper Adelaide Road
opposite the site and conditions looking up
Upper Adelaide Road onto Coronation Street. These photographs reveal
three double-story
buildings, one three-storey building and a number
of single-storey buildings, all built very close to one another.
The
affidavit filed by Erwin Gustav Rode is particularly important. He
is a property economist, registered Professional Valuer and
founder
of the national property-valuation and property-research firm Rode &
Associates. He has for many years been a part time
lecturer at the
University of Stellenbosch for the post-graduate course in Property
Investment, which includes property valuation
and since 1999 lectures
on a part time basis at the University of Cape Town, contributing to
the MSc in Property Studies. He explains
that the value of a
property is the market value and furnishes two definitions of market
value. The International Valuations Standards
Committee, based in
London, has the following definition:
“
(It is) the estimated amount for
which an asset should exchange on the date of valuation between a
willing buyer and a willing seller
in an arm’s length transaction
after proper marketing, wherein the parties had each acted
knowledgeably, prudently, and without
compulsion.”
The definition of market value
published every quarter in the Glossary of
Rode’s
Report on the South African Property Market
is:
“
(It
is) the most probable price that a voluntary, informed purchaser will
pay a voluntary, informed seller in a normal open-market
(arms-length) transaction at the date of valuation – after allowing
for proper marketing prior to the valuation date – when neither
party is under any compulsion to sell or to purchase, other than
their normal desire to transact.”
After explaining that Walmer Estate
has a number of multi-storey houses and recording that Walmer Estate
has many single residences
with an R 3 zoning, he explains that the
market values of many erven would have reflected the possibility of
higher density developments
being more viable and therefore more
likely. He ultimately concludes that in regard to the property owned
by the respondents, there
will be no reduction in the true market
value of the second applicant’s property as a result of the
erection of the proposed building
on the respondent’s property. At
best for the applicants there is a dispute of fact in regard to
whether or not the proposed building
will derogate from the value of
the second applicant’s property and on the basis of the rule in
Plascon Evans
,
I conclude that the disqualifying factors in s 7(1)(b)(ii) were not
present or at the very least that the version of the first respondent
in regard to this issue has not been effectively challenged. The
first respondent was not called upon to deal with the application
on
the basis that any of the disqualifying factors in s 7(1)(b)(ii) of
the Act were present. It was therefor a little surprising
that after
I had heard full argument from counsel at the conclusion of the
matter, including argument by the applicants’ counsel
in reply,
that the latter submitted, almost as an afterthought, that if I was
to rule against him on the other issues which he had
advanced, the
matter ought to be referred for the hearing of oral evidence in
respect of the alleged derogation of the value of the
second
applicant’s property. The fact is that the applicants came to
court seeking final relief and nothing in their papers or
in the
heads of argument submitted on their behalf suggested that they would
ask for a dispute to be referred for the hearing of
oral evidence.
In my view, having elected to proceed in the manner which they did,
there is no basis for acceding to counsels’
request, in fairness to
the respondents, who have been prevented from carrying on with
building operations since 6 October 2006 when
the respondents agreed
to an interim interdict restraining building operations pending the
hearing of the review application.
[33] In the result, the application is
dismissed with costs, the costs incurred by the first respondent to
include the costs attendant
upon the employment of two counsel.
___________________
R
B CLEAVER
1
1991
(3) SA 866
(NPD)
2
2003,
Oxford University Press, Second Edition
3
cf
Administrator
Transvaal and Others v Traub and Others
1989 (4) SA 731 (A)
4
1999
(10) BCLR 1059
(CC);
2000 (1) SA 1
(CC) at para 216
5
Muller
and others v City of Cape Town
2006 (5) SA 415
(C)
6
Paola
v Jeeva NO and others
[2003] ZASCA 100
;
2004
(1) SA 396
(SCA)
7
1999
CLR (W) 91
8
1999
CLR 77