SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: 031793/2023
ADOWAY (PTY) LTD FIRST APPLICANT
JAN GERHARDUS de WAAL SECOND APPLICANT
KAREE ONTWIKKKELAARS (PTY) LTD THIRD APPLICANT
ZERANZA 12 (PTY) LTD FOURTH APPLICANT
PETRUS BENJAMIN WIESE FIFTH APPLICANT
MELANIE WIESE SIXTH APPLICANT
ROBYN VAN AARDT SEVENTH APPLICANT
GIDEON FERREIRA EIGHTH APPLICANT
and (1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
…………..…………............. ……………………
SIGNATURE DATE
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TSHWANE METROPOLITAN MUNICIPALITY FIRST RESPONDENT
Mr. P MACHETTE SECOND RESPONDENT
Mr. A.F JANSEN THIRD RESPONDENT
Mr. JASON NGOBENI FOURTH RESPONDENT
This Judgment was handed down electronically and by circulation to the parties’
legal representatives by way of email and shall be uploaded on caselines. The
date for hand down is deemed to be on 27 March 2025.
JUDGEMENT
MALI J
[1] This is an application for the review and setting aside of the decision
taken by the first, second and third respondents recommending and or rejecting
the final building plans in respect of the second to eighth applicants ’ full title
properties. The application is brought in terms of section 6 of the Promotion of
Administrative Justice Act, 2000 (“PAJA”) .
The parties
[2] The first applicant is Adoway (Pty) Ltd (Adoway ), a company duly
registered in terms of the company laws of the Republic of South Africa. The
first applicant, Adoway was the owner of Erf 8[…] which was rezoned from
“Residential 2” with a density of 16 dwelling units to “Residential 2” with revised
density of 30 dwellings. The second to eight applicants are owners of individual
portions in Erf 8[…].
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[3] The first respondent is the Tshwane Metropolitan Municipality, a
Municipality (the City), established pursuant to the provisions of section 62 of
the Local Government: Municipal Systems Act, 32 of 2000. The second
respondent is Mr P Machette in his capacity as Deputy Director, Building Plans
and Inspection, Region 3, employed by the City.
[4] The third respondent is Mr AF Jansen in his capacity as Building Control
Officer, Economic Development & Spatial Planning, employed by the City. The
fourth respondent is Mr Jason Ngobeni in his capacity as Municipal Manager,
employed by the City. The respondents will be referred to as City or
respondents interchangeabl y.
The Relief
[5] The structure of the relief sought per the applicant’s notice of motion
and founding affidavit is as follows:
1. The purpose of this application is:
a. The review and setting aside of the administrative decision taken
by the first, second and third respondents on or about 25 July 2022,
recommending and/or rejecting the final building plans in respect of the
second to seventh applicants full title properties;
b. To substitute the impugned administrative decisions with an
approval of the final building plans in respect of the second to seventh
applicants’ full title properties, alternatively to remit the decision to the
first respondent to reconsider it within 30 days;
c. Alternatively, to “a” and “b” above the reviewing and setting aside
the administrative decision by the fourth respondent in failing to take a
decision in respect of the applicant’s appeal in terms of section 62 of the
Local Government: Municipal Systems Act, 32 of 2000 (“the systems
4
Act”), that the fourth respondent be ordered to consider the appeal within
30 days.
2. Apart from the aforesaid the applicants will also seek the following
relief:
a. A declaratory order that the first and fourth respondents’ conduct
in allowing the full title site development plan and sectional title building
plans to be approved, on the one hand, and disallowing the full title
building plans to be approved in respect of the full title properties, on the
other hand, is contrary to:
i. The provisions of the Tshwane Town- planning Scheme, 2008
(revised 2014), as amended by Amendment Scheme 4211T; (no specific
provision to quote, this is a large document with difference provisions)
ii. The principles of section 9 (equality), section 25 (property) and
section 33 (just administrative action) all being part of the rights contained
in the Bill of Rights of the Constitution of the Republic of South Africa,
1996 (“the Constitution”).
9. (1) Everyone is equal before the law and has the right to equal
protection and benefit of the law.
25. (1) No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of
property.
33. (1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
b. An order, consequent upon declaring the conduct of the first to
fourth respondents unconstitutional, that the first to fourth respondents be
ordered to recommend and approve the final building plans in respect of
the full title properties belonging to the second and seventh applicants, in
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terms of section 7 of the National Building Regulations and Standards
Act, 103 of 1977 (“the Buildings Standards Act”).
c. That insofar as the court finds that the applicants failed to comply
with section 7(1) of the Promotion of Administrative Justice Act, 3 of 2000
(“PAJA”), that same be condoned in terms of section 9 of PAJA;
d. That insofar as the applicants failed to comply with section 7(2) of
PAJA, that same be condoned in terms of PAJA;
e. An order that first respondent pays the costs of the application on
an attorney and client scale, inclusive of the costs of two counsel, if
applicable. ”
Background [6] Pursuant to the application for the rezoning, on 13 May 2019 the City’s
relevant department sent a letter to Adoway’s Town Planner approving the
application with certain conditions to be complied with within a period of 12
months from the date of notification and approval. Adoway prepared a site
development plan (SDP) which indicated 6 full title residential stands , and the
same was approved on 14 September 2020. Subsequently Adoway was issued
with approval for the subdivision under certain conditions imposed by the City.
[own emphasis] The SDP included the building plans in respect of the
residential dwellings to be erected on Erf 8[…], which building plans included
windows on the first story ’s units 1 to 5.
[7] The conditions are as follows:
“B. CONDITIONS TO BE COMPLIED WITH PRIOR TO THE
DEVELOPMENT PLANS BEING APPROVED
(a) All the conditions in section A above must be complied with;
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(b) An engineers’ report for site services (roads and stormwater) must
be accepted by the department;
(c) An engineer’s layout plan must be accepted by the department,
based on the report required in condition 8(b) above. The engineer’s
layout plan must comply with the minimum requirements of the
department, and must include:
(i) Detailed internal stormwater layout;
(ii) Detailed access arrangements;
(d) The proposed roads and stormwater services as accepted by the
department must be indicated on the site development plan layout;
(e) The following condition must be included as a condition of title to the
subject property:
(i) The erf shall not be transferred without the written consent from the
City of Tshwane, with reference to the function and maintenance of the
internal stormwater system.
(f) The following condition must be included in the statute of the Body
Corporate with respect to the scheme:
(i) The owner(s) shall remain responsible for functional maintenance
and operation of the stormwater management system, as prescribed in
the engineer’s report (as compiled by Messrs. PVA Consulting Engineers
cc (#3261 Rev B, dated March 2017);
(g) The following must be provided on the SDP and building Plans files
respectively:
(i) A signed copy of the report;
(ii) A signed copy of the drawing #3261- CIV-100 Rev A, as included in
the report;
(iii) The site stormwater management interventions as indicated on the
above- mentioned drawing must be shown on the general site plan (SDP),
in accordance with the engineers’ report;
(h) A detailed maintenance schedule must be included in the
submission, based on the engineers’ report. The maintenance schedule
must be signed by the owner, must include an acceptance by the owner
to maintain the stormwater in functional order as per the maintenance
schedule and engineers’ report;
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C. CONDITIONS TO BE COMPLIED WITH PRIOR TO BUILDING
PLANS BEING APPROVED
(a) A Site Development Plan must be submitted and accepted for the
land development area;
(b) The site services (roads and stormwater) must be indicated on the
Building Plan layout and must comply with the minimum requirements of
the Department;
(c) A wayleave application must be approved for all work within the
public road reserve. Please visit https://wayleave.tshwane.gov.za in this
regard;
(d) No encroachment over any servitudes will be allowed.”
[8] It is common cause that the City allowed Adoway to submit building
plans for sectional title development for the six units . At the time when the
Council considered and approved the six sectional title units, such approval
was given to accommodate the Developer because of the time span between
the approval or the subdivision by the Regional Spatial Planning in terms of the
relevant laws.
[9] The sectional title building plans were approved by the City on 24 June
2021. The approval was for group housing units 1- 6 for the occupancy of
sectional title units not full title portions. At the stage of the approval of the plans
Adoway had already entered into a sale agreement for the sale and transfer of
all 6 full title portions with the second to eight applicants.
[10] On 3 August 2021 the City issued an occupational certificate in respect
of sectional titles , for all 6 dwellings in terms of the provisions of section 14 (1)
of the National Building Regulation and Building Regulation and Building
Standards Act, 103 of 1977 (the NBRBS Act), which provides:
“(1) A local authority shall within 14 days after the owner of a building of
which the erection has been completed, or any person having an interest
8
therein; has requested it in writing to issue a certificate of occupancy in
respect of such building – (a) issue such certificate of occupancy if it is of
the opinion that such building has been erected in accordance with the
provisions of this Act and the conditions on which approval was granted
in terms of section 7, and if a certificate issued in terms of the provisions
of subsection (2) in respect of such building has been submitted to it; (b)
in writing notify such owner or person that it refuses to issue such
certificate of occupancy if it is not so satisfied or if a certificate has not
been so issued and submitted to it.”
[11] On 24 August 2021 the City received an application for the approval of
building plans for six full title portions. Upon the evaluation of the plans, the
council did not approve the building plans of such full title portions due to the
windows that are fitted on the boundary lines, especially on Units 1 to 5.
[12] On 22 June 2022 the sectional title building plans were approved by
the City without any amendment to the designs, and nothing on the layout of the
dwelling units was altered. On 25 July 2022 the City communicated that the full
title Building Plans were refused. Adoway was advised that no building plans in
respect of Portions 1 to 5 will be approved for as long as any of the windows on
the boundary line are overlooking adjacent properties . The letter further advised
that any window on a boundary line should be bricked up and alternative means
of ventilation should be installed before the full title building plans are
considered for approval.
[13] Two of the six transferees, being the second and fourth applicant, have
since disposed of their portions. At the time of the hearing of this application
they were in the process of giving transfer. The second applicant has launched
an application in the High Court to compel the City’s Building Control Division to
issue the required consent. The trigger for this application is the City’s refusal to
approve the full title building plans despite several negotiations between the
City and Adoway.
Condonation of delay
9
[14] It is common cause that the applicants did not bring the application
within a period of 180 days , the application is 97 days out of time. According to
the applicants the proverbial clock started ticking during December 2022. This is
after they had commenced with meetings from June 2022 followed by
approximately consistent monthly meetings and exchange of correspondence
with the City, pertaining to the approval of plans.
[15] It became clear on 14 December 2022 to the applicants that a solution
would not be forthcoming, they lodged internal appeal, which was also not
entertained by the City. The applicants then brought an urgent application on 22
December 2022, which was struck from the roll. This application was launched
on 12 April 2023.
[16] Section 7 of PAJA provides as follows:
“7. (1) 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 subsection (2)(c), on which any proceedings instituted in
terms of 15 internal remedies as contemplated in subsection (2)(a) have
been concluded;
(b) ~here no such remedies exist, on which the person concerned was
informed of the administrative action, became aware of the action and the
reasons for it or might reasonably have been expected to have become
aware of the action and 20 the reasons.”
[17] It is trite that the 180 day period can be extended by the court in terms
of section 9(1)(b) and 9(2) of PAJA where the interest of justice so require.
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Whether it is in the interest of justice to grant an extension depends on the facts
of each case .1
[18] The City alleges that the delay is self-made as the applicants wasted
time in invoking the appeal process which is not provided in the law. There is no
domestic remedy for appeal. Section 62 of the Systems Act provides: (1) A
person whose rights are affected by a decision taken by a political structure,
political office bearer, councillor or staff member of a municipality in terms of a
power or duty delegated or subdelegated by a delegating authority to the
political structure, political office bearer, councillor or staff member, may appeal
against that decision by giving written notice of the appeal and reasons to the
municipal manager within 21 days of the date of the notification of the decision.
[19] The applicants relied on the above provision . Whether they were entitled
or not to do so, the diligence displayed by the applicants in trying to find
amicable solution since 9 June 2022 is overwhelming. The court is persuaded
that the applicants were not supine at all. The application implicates property
rights which are protected by the Constitution. It is therefore in the interest of
justice that the period for review be extended.
Applicants’ case
[20] The applicants’ case is that the decision of the City is reviewable in
terms of section 6 of PAJA. Section 6 is very wide; the applicants contend that
they have brought the application on a number of grounds prescribed by section
6. What becomes clear is that the main attack is that the decisions of the City
are irrational and unreasonable.
[21] The applicants later supplemented their grounds for review subsequent
to receipt of the City’s record for a decision delivered on 25 October 2023. The
supplementary grounds for review are as follows:
1 Camps Bay Ratepayers and Residence Association v Harrison [2010] 2 All SA 519 (SCA) par
54.a
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“The action was taken for a reason not authorised by the
empowering provision [Section 6(2)(e)(i)]; the action was taken
because irrelevant considerations were taken into account or
relevant considerations were not considered [section 6(2)(e)(iii)]; the
action itself contravenes a law or is not authorised by the
empowering provision [section 6(2)(f)(i)]; the action itself is not
rationally connected to the purpose of the empowering provision
[section 6(2)(f)(bb)] and the action itself is not rationally connected
to the reasons given for it by the administrator [section
6(2)(f)(ii)(dd)]:”
“The action was taken because irrelevant considerations were taken
into account or relevant considerations were not considered
[section 6(2)(e)(iii)]; the action itself was taken arbitrarily or
capriciously [section 6(e)(vi)]; the action itself is not rationally
connected to information before the administrator [section
6(2)(f)(ii)(cc)] and the action itself is otherwise unconstitutional
[section 6(2)(i)].”
[22] The correspondence of 25 July 2022 which forms subject of this review
reads as follows:
“RE: EVALUATION PLANS ON PORTION 1,2,3,4 &5 OF ERF 8[…]
M[…] P[…]
Sirs
Our meeting of the 8th June 2022 between Mr. S Willie and the writer: P
M Machete refers.
Kindly accept our apology on the tardy nature of this reply. Our delayed
to respond to your enquiry is a resultant of work load and other office
commitments.
After a joint meeting with as (sic) Council officials, we resolved that: no
structure will be approved with any window on a boundary line
overlooking into any adjacent property.
We advise that any window on a boundary line should be bricked up and
provide means of ventilation such as the skylight or any means of
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ventilation prior (sic) the subject applications could be considered for
approval.”
[23] The applicants at page 10-21, paragraph 4.11 of the supplementary
affidavit summarises the reasons advanced by the City by reading together the
reasons of 25 July 2022 with the City’s Economic Development and Spatial
Planning report by the City of 6 December 2022, as follows:
“Evidently the City’s only reasons for refusing to grant the Full Title
Building Plan approval seems to be that the windows constructed on a
boundary line overlooks adjacent properties and a problem arises when
sectional units become full title portions whereby windows are not
allowed on erf boundaries”
[24] According to the applicants , on 9 June 2022 subsequent to a meeting
being held between the second, third respondents and Adoway’s town planner ,
a letter was addressed confirming that it was inter alia agreed that the second
respondent will prepare a letter recommending for approval of the full title
building plans in respect of the relevant erven.
[25] The applicants ’ argument amongst others is that they were entitled in
terms of the development controls adopted and approved by the City as
depicted in Annexure “T” annexed to the founding affidavit as Annexure “O” to
construct windows on a storey above the ground floor facing adjacent residential
properties subject thereto that such windows are non-transparent and are in line
with the height restrictions imposed.
[26] They say neither the scheme nor the conditions of approval [as shown
above] in respect of the development prohibits windows to be constructed on the
first floor overlooking adjacent properties. The SDP depicting the windows were
approved by the City. The sectional title building plans for portraying the
windows were approved by the City. All six residential dwellings have already
been constructed in accordance with the approved SDP, the approved
sectional title building plans and an occupation certificate was issued in
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respect of the dwellings in terms of section 14 of the NBRBS Act; and
considering the fact that the windows are non-transparent, poses no safety risk
and also considering all other facts advanced herein above, none of the
circumstances provided for in section 7 of the NBRBS Act are triggered that
could justify the refusal.
Respondents’ case
[27] The respondents ’ case is that the City has refused the applicant building
plans after it was satisfied that the building plans do not meet the legal
requirements. Section 4(1) of the National Building Regulations and Building
Standards Act 103 of 1977 (NBRBS Act) prohibits construction of buildings
within a municipal area without prior approval by the local authority. The reason
for the refusal is that there is a window on the boundary line, therefore the
window will probably or in fact disfigure the adjoining property.
[28] The City’s submission is that the window in question is objectionable
and makes the adjoining properties to be unsightly. Furthermore, if the building
plans were to be approved with a window on the boundary line, same will
derogate the value of the adjoining neighbouring properties.
[29] The respondent s further submit that the approval for SDP does not
automatically mean that the building plans are also approved. The building plans
follow a separate procedure. It was made unequivocal clear that any approval
for the SDP must construe to be approval of building plans.
[30] The City denies that it explicitly or tacitly accepted and acquiesced to
the eventualities. It did not give Adoway the impression that it would be in order
to erect the structures in terms of the adopted scheme documents . The
approved full title site development plan and approved sectional title with
structures would ultimately be the same structures that would be approved for
construction in respect of the full title stands. The eventualities were
misconstrued by the applicants.
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Analysis
[31] Section 4(1) of the National Building Regulations and Building
Standards Act 103 of 1977 (NBRBS Act) prohibits construction of buildings
within a municipal area without prior approval by the local authority.
[32] It is trite law that building plans are only approved or assessed in terms
of Section 7 of the NBRBS Act. The respondents are empowered in terms of the
Act to either refuse or approve the plans. Section 7 NBRBS Act provides:
“Approval by local authorities in respect of erection of buildings
(1) If a local authority, having considered a recommendation referred 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 satisfied; or
(ii) Is satisfied that the building to which the application in question
relates -
(aa) is to be erected in such manner or will be of such nature or
appearance that –
(aaa) the area in which it is to be erected will probably or in fact be
disfigured thereby;
(bbb) it will be 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 refuses to grant its approval in respect thereof and give
written reasons for such refusal.
[33] The applicants decry that the City is making the case for section 7 for
the first time in the answering affidavit in that they were given different reasons.
This ignores the fact that they do not dispute that they were informed of the
window boundary line problem on 25 July 2022. In reading section 7 it is clear
15
that, whatever was communicated on 25 July 2022 was and is still based on
law. They are not submitting that the conditions set out in the letter of 25 July
2022 are illegal. The conditions are clear, they refer to ventilation of the windows
amongst others. The Rule of Law trumps the applicant’s argument about
irrational and unreasonable decision of the City.
[34] Furthermore, the applicants’ unsubstantiated submission that the
process of approving SDP; the sectional title building and full title building plans
is indivisible is not supported by any legal basis. It is akin to saying there is no
difference between sectional title and full title approval process , of which the
City made it clear that there is one in terms of what type of windows are required
in a full title as opposed to a sectional title.
[35] The rationale in the City’s version is crystal clear, that the boundary line
of a sectional title unit is not an issue, however , a full title portion cannot have
a window on the boundary line in that it will be dangerous to life or properties of
the adjoining neighbour in that it poses a risk in case of a fire and it also poses a
privacy issue for adjacent properties.
[36] The applicants correctly state that a ““problem” arises when sectional
units become full title portions whereby windows are not allowed on erf
boundaries. Evidently the City’s only reasons for refusing to grant the Full Title
Building Plan approval seems to be that the windows constructed on a boundary
line overlooks adjacent properties and a problem arises when sectional units
become full title portions whereby windows are not allowed on erf boundaries. ”
[37] On the applicants own version they admit that the City did not approve
the full title building plans for the reasons which relate to the windows that are
fitted on the boundary line of Units 1-5, despite that the applicants insist that the
decision was irrational. I am risking repetition, the applicants ’ major reasoning is:
the decision of the City is irrational because it had already approved SDP,
section al title building plans and accepted that windows on the first storeys
would be part of the design and construction dwellings .
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[38] The applicants’ submission defies the logic. There is a purpose2 for
separate processes pertaining to sectional title and full title. The approval of
SDP followed by sectional title building plan approvals cannot be equal to full
title building plans. The approval of the sectional title was no automatic right for
the approval of the full title. The City disputes that it ever issued certificate of
occupation for the full title and the applicants are not taking this point further . In
fact, the applicants’ interpretation is unbusinesslike, it is against the cardinals of
modern- day interpretation which seek to promot e purposive interpretation.3
[39] The applicants misconstrue the issue raised pertaining to the adjacent
windows. They make it as if it is about their satisfaction and or should meet their
own requirements. The issue is about the legal compliance and that in particular
that the neighbours of the adjacent properties will be prejudiced by the unsightly
scene and devaluing of their properties. Furthermore, same is also not in
accordance with SANS 10500 Building Regulations Standard, a fact not
disputed by the applicants. The applicants did not dispute these probabilities as
advanced by the City, except to hold on to the SDP approval and sectional title
building plan approval.
[40] The City afforded applicants an opportunity to mitigate the risk by
bricking the windows, instead of doing same they launched an application and
engaged in court proceedings . They are not instructed to demolish the units
which they built without approvals, something they want to brush aside.
[41] In conclusion, I find that the impugned decision by the City was taken
within the parameters of law, it is rational and reasonable and was taken for the
correct purposes. The applicants have failed to prove that the decision of the
2 AfriForum v University of the Free State 2018 (4) BCLR 387 CC, para 44Similarly, where it is
necessary to resort to a purposive interpretation, the purpose of a provision might not always be
readily apparent from the words or expressions sought to be understood.
3 Natal Pension Fund v Endumeni (920/2010) [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA) (16 March 2012) A sensible meaning is to be preferred to one that leads
to insensible or unbusinesslike results or undermines the apparent purpose of the document.
Judges must be alert to, and guard against, the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used.
17
Respondents is irrational, offending the provision of PAJA, thus susceptible to
review. In the result the application must not succeed. In the result the following
order is granted:
ORDER
1. The application is dismissed with cost s on Scale C .
N P MALI
JUDGE OF THE HIGH COURT
APPEARANCES:
For the applicants: Adv. L. Kotze
liakotze@clubadvocates.co.za
Instructed by: Prinsloo Bekker Attorneys
rick@pblaw.co.za
For the Respondents: Adv. P. Mthombeni
Percymthombeni14@gmail.com
Instructed by: C Mabunda Inc.
Mlolwana@collinmabundainc.co.za