SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case No: 22715/202 3
In the matter between:
THE CITY OF CAPE TOWN Applicant
and
JAN PAUL MICHELS First Respondent
ABSA HOME LOANS GUARANTEE
COMPANY (RF) (PTY) LTD Second Respondent
NEDBANK LIMITED Third Respondent
SB GUARANTEE COMPANY (RF) (PTY) LTD Fourth Respondent
FIRSTRAND MORTGAGE COMPANY (RF) (PTY) LTD Fifth Responde nt
Heard: 25 March 2025
Judgment: 28 March 2025
JUDGMENT
Handed down by email on 28 March 2025
The date of the judgment is 28 March 2025
1. The first respondent owns the following immovable properties in the Milnerton
area in Cape Town, which form the subject matter of this application:
1.1 Erf 8 […] Milnerton, more commonly known as 1 […] Erica Way,
Milnerton, in extent 935 square metres and held under deed of transfer
T13266/2020 (“the Erica Property”) .
1.2 Erf 3[…] Milnerton, more commonly known as 1 […] Algoa Road,
Milnerton, in extent 991 square metres and held under deed of transfer
T53817/2019 (“the Algoa Property”) .
1.3 Erf 3[…]2 Milnerton, more commonly known as […] Ceres Road,
Milnerton, in extent 991 square metr es and held under deed of transfer
T5477/2020 (“the Ceres Property”) .
1.4 Erf 2[…] Milnerton, more commonly known as […] Heather Road,
Milnerton, in extent 991 square metres and held under deed of transfer
T4774/2020 (“the Heather Property”).
2. When referred to collectively , these four properties will be referred to as “the
Properties”.
3. The Properties are zoned single residential zoning 1: conventional housing:
SR1 (“SR1”). This means that the primary use of the Properties is as a
residential dwelling by a single family. Certain additional uses of the
Properties are possible with the consent of the City of Cape Town (“the City”) .
4. Between December 2021 and March 2022, the City received numerous
complaints from the Milnerton Central Rate Payers’ Association (“the
MCRPA”) and surroundi ng residents alleging that:
4.1. Unauthorised additions/alterations were being carried out at the
Properties .
4.2. The purpose of these a dditions and alterations was to utilise each of
the Properties as boarding house s.
4.3. The Properties were being used as boarding houses.
5. A boarding house is defined in section 1 of Schedule 3 to the Cape Town
Municipal Planning By -Law of 2015 (“the By -Law”), as follows:
“ ‘boarding house ’ means a building where lodging is provided, and
may incorporate cooking, dining and communal facilities for the use
of lodgers, together with such outbuildings as are normally used
therewith ; and includes a building in which rooms are rented for
residenti al purposes, youth hostel, backpackers’ lodge, gu est house,
home for the aged, handicapped or orphaned and residential club;
but does not include a hotel, dwelling house, second dwelling , third
dwelling or group house;”
6. A series of inspections at the Properties were conducted by City officials
which revealed numerous contraventions of the National Building Regulations
and Building Standards Act 103 of 1977 (“the Act”), the By-Law, and the
Development Management Scheme (“the DMS”) which is Schedule 3 to the
By-Law.
7. The building works alleged by the City to be unlawful which were carried out
by the first respondent can be categorised broadly as:
7.1. the construction of new/additional structures on each of the Properties
without any approved building plans ; and/or
7.2. the addition to and alteration of the existing structures on the Properties
(either internally or externally) contrary to the existing approved building
plans in relation to each of the Properties.
8. It is the City’s c ontention that these additions and alterations have been
carried out by the first respondent in order to utilise each of the Properties as
boarding houses with as many as possible separate and self -contained units
within each property.
9. In the main application , the City seeks relief in respect of the building works ,
addition and alterations on the Properties which it contends are unlawful (“the
main application ”), as follows:
9.1. Declaring certain identified additions and alterations at the Properties
unlawful .
9.2. Directing the first respondent to submit a series of applications in terms
of the By -Law for, inter alia, the imposition of administrative penalties
and the regularisation of contraventions , within stipulated time frames .
9.3. Interdicting and restraining the first respondent, or any person or entity
under the control, or on behalf, of the first respondent, from unlawfully
altering any immovable property owned by the first respondent in the
future .
9.4. Directing the first respondent to grant officials of the City access to his
immovable properties in future in order to monitor compliance with the
order granted by this court in the main application .
9.5. Entitling the City to supplement its papers in future in order to seek
demolition and restoration orders in the event of the first respondent
failing to comply with any order granted by this Court.
9.6. Entitlin g the City to make application declaring the first respondent in
contempt of court in the event of him failing to comply with any order
granted by this Court.
9.7. As a result of the facts giving rise to the Main application , costs on a
punitive scale.
10. The first respondent launched a counter -application for judicial review , to
which he subsequently added terse averments as to a constitutional challenge
in his supplementary founding affidavit, although no relief in this regard was
sought in the notice of counter -application . This is explained in some detail
below.
Postponement
11. The matter was set down on 19 Februa ry 2025 before me . It was postponed
to 25 March 2025 at the request of the first respondent after an opposed
hearing in the circumstances set out below.
12. On 18 March 2025, the first respondent’s attorney sent an email to my
registrar which reads as follows:
“We refer to the above and confirm that pursuant to the previous
postponement and the subsequent receipt of the order of this
Honorable Court, regarding the further conduct of this matter.
We have informed our client and established that he had a flight out of
the country hastily for, among others, a medical emergency. We
anticipated his return before now but despite several contact and
attempts to get civil, we were unable to do so. We have previously
advised our opponents of the difficulties in s ettling the Replying
Affidavit, as required by the Court and also in bringing the Application
for Leave to Appeal in joinder application related to this matter. The
purpose of this correspondence is to take this Honorable Court to our
confidence of such an inability to do so.
We have taken the liberty of copying our Opponent in this
Correspondence and we have previously intimated them of the need
to do so in a separate correspondence. ”
13. I requested my registrar to respond as follows, which she did on 20 March
2025:
“Kantor AJ has requested me to inform you that any issues of the
nature of those contained in the email below, if they are to be sought
to be relied upon, must be raised in the proper form at the hearing of
the above matter on 25 March 2025. ”
14. At the hearing of the matter on 25 March 2025, Mr Sharuh , who appeared for
the first respondent and is the author of the above email , requested what he
termed a ‘reprieve’ of two to three weeks (effectively a further postponement
of the matter ).
15. My ruling on the day was as follows:
“The application for postponement is refused with costs which will include
the costs of the employment of two counsel where so employed , with
scale C in terms of section 67A applying.
I will deal with the reasons for this decision should the need arise in due
course. ”
16. The reasons for the ruling are set out below.
17. Despite the aforesaid email from my registrar, no application for a
postponement supported by an affidavit was filed . Nor was any documentation
in any respect m ade available to the court . While that is not an absolute
requirement for a postponement, in order to rely on facts to justify a
postponement they need to be placed before the court in a proper form, which
is usually in the form of an affidavit. Where the other party opposes the
application and does not accept averments of fact from the Bar, an affidavit
will ordinarily be required.
18. The Constitutional Court held as follows in National Police Service Union and
Others v Minister of Safety and Security and Others 2000 (4) SA 1110 (CC) at
paragraph 4:
“The postponement of a matter set down for hearing on a particular
date cannot be claimed as of right. An applicant for a postponement
seeks an indulgence from the Court. Such postponement will not be
granted unless this Court is satisfied that it is in the interests of justice
to do so. In this respect the applicant must show that there is good
cause for the postponement. In order to satisfy the Court that good
cause does exist, it will be necessar y to furnish a full and satisfactory
explanation of the circumstances that give rise to the application.
Whether a postponement will be granted is therefore in the discretion
of the Court and cannot be secured by mere agreement between the
parties. In exer cising that discretion, this Court will take into account a
number of factors, including (but not limited to): whether the
application has been timeously made, whether the explanation given
by the applicant for postponement is full and satisfactory, whethe r
there is prejudice to any of the parties and whether the application is
opposed. ”
19. In Madnitsky v Rosenberg 1949 (2) SA 392 (A) it was held as follows at 399 (a
dictum which has been cited and followed in numerous matters, including in
the above -referred decision of the Constitutional Court) :
“No doubt a court should be slow to refuse to grant a postponement
where the true reason for a party’s non -preparedness has been fully
explained, where his unreadiness to proceed is not due to delaying
tactics , and where justice demands that he should have further time
for the purpose of presenting his c ase. In the present case, however, it
cannot be said that those requisites were satisfied and, in all the
circumstances, I am not prepared to ho ld that the trial Judge did not
exercise his discretion judicially .”
20. In the context of the postponement sought in this matter, t he key question s
are whether the true reason for the first respondent’s non-preparedness has
been fully explained, where the unreadiness to proceed is not due to delaying
tactics, and where justice demands that he should have further time for the
purpose of presenting his case.
21. A chronology of some of the events in the lit igation of this matter will be set
out and thereafter the basis for the postponement will be considered.
22. Litigation chronology :
22.1. The main application was issued on 12 December 2023 and served
on the first respondent on 18 and 19 December 2023.
22.2. The notice of opp osition was served on 16 February 2024.
22.3. On 20 February 2024 the matter was postponed by agreement by
order of this court , per Thulare J (“the Thulare Order” ), for hearing on
the opposed motion roll on 11 June 2024.
22.4. The first respondent’s answering papers in the main application were
due on 26 April 2024 in terms of the Thulare O rder.
22.5. An informal mediation was held on 12 March 2024.
22.6. No answering papers were delivered (due, in accordance with the
Thulare Order , by 26 April 2024 ).
22.7. On 7 May 2024 , the City informed the first respondent’s attorneys in
writing that their instructions were for the matter to proceed on 11
June 2024.
22.8. On 17 May 2024 , the City delivered a supplementary founding
affidavit dealing with the first respondent’s application s for
administrative penalties (more of which below) .
22.9. No answering papers had been delivered by the first respondent.
22.10. On 5 June 2024 , the matter was remov ed from the roll for 11 June
2024.
22.11. On 5 June 2024 , the City brought a chamber book application to
compel the delivery of the answering papers of the first respondent,
which was granted on 21 June 2024 and the order served on the first
respondent on 28 June 2024. The answering affidavit was due in
terms thereof on 12 July 2024.
22.12. No answering affidavit was delivered by that date .
22.13. This was the second time that a court order in respect of the delivery
of the answering papers had not been complied with by the first
respondent.
22.14. Despite this, o n 15 August 2024 the first respondent served a counter
application. The City served its notice of opposition on 16 August
2024.
22.15. On 19 August 2024, t he first respondent delivered a conditional
answering affidavit.
22.16. On 20 August 2024, Erasmus J granted an order postponing the main
application and the c ounter -application for hearing on 17 October
2024 (the Erasmus Order).
22.17. On 27 August 2024, the first respondent served a notice in terms of
Rule 7(1) on the City’s attorneys.
22.18. On 29 August 2024, the City delivered its replying affidavit in the main
application on the date it was due in terms of the Erasmus Order and
its response to the Rule 7(1) notice, and provided an electronic link to
the Rule 53 Record. The first respondent communicated that it could
not access the link and on 2 September 2024 a new link was sent. On
11 September 2024 the first respondent communicated to the City that
the link was inaccessible. The City delivered a flash drive containing
the Rule 53 Record to the first respondent on 12 September 2024.
22.19. The first respondent’s supplementary affidavit in the counter
application was due on 12 September 2024 in terms of the Erasmus
Order. No affidavit was delivered by then .
22.20. On 13 September 2024 first respondent alleged that it could still not
access the Rule 53 Record. On the same day the City’s attorneys
delivered a hard copy to the first respondent’s attorneys.
22.21. On 23 September 2024, being the due date for it in terms of the
Erasmus Order of 20 August 2024, the City delivered its answering
affidavit in the counter -application.
22.22. On 30 September 2024, the first respondent’s replying affidavit in the
counter -application was due but was not delivered.
22.23. On 8 October 2024, the first respondent delivered an ame nded notice
of motion and supplementary founding affidavit in the counter -
application.
22.24. On 16 October 2024, the day before the opposed hearing date, the
first respondent filed notices in terms of Rule 10A and 16A, together
with a n application for the Executive Mayor of the City of Cape Town
and the Premier of the Western Cape ( “the Premier ”) to be joined .
These were not served on the Premier.
22.25. On 17 October 2024, the matter was crowded out due to a shortage of
Judges. The City served a n irregular step notice in terms of Rule 30 in
respect of the attempted joinder of the Premier.
22.26. On 23 October 2024, the City requested the Acting Judge President to
allocate a date for the hearing of the joinder and Rule 30 applications.
The first respondent objected to thi s. The joinder application was
served on the Premier.
22.27. On 24 October 2024, the Premier delivered its notice of opposition to
the joinder application.
22.28. On 28 October 2024, the Acting Judge President granted an order
setting the rule 30 application down for he aring on 20 November 2024
with a timetable for the delivery of further papers therein.
22.29. On 4 November 2024, the first respondent’s answering affidavit in the
Rule 30 application was due. It was not delivered by that date .
22.30. On 15 November 2024, the City deliv ered its supplementary
answering affidavit to the first respondent’s amended notice of motion
and supplementary affidavit in the counter application.
22.31. On 20 November 2024, the Rule 30 application was heard before
Carolissen AJ. The application was granted , striking out the attempted
joinder of the Premier and ordering a further timetable for the delivery
of papers in the main application and the counter -application,
including that it was postponed to be heard on 19 February 2025.
22.32. On 29 November 202 5 reasons were requested for the aforesaid
order. The reasons were delivered on 22 January 2025.
22.33. On 28 January 2025, an application for leave to appeal was delivered.
It was argued and dismissed on 14 February 2025.
22.34. The main application and cou nter-application were allocated for
hearing before me on 19 February 2025. At the hearing, the first
respondent requested from the Bar that the main application and
counter -application be stayed pending the determination of an
application for leave to appe al to the Supreme Court of Appeal (“the
SCA”) the order in the Rule 30 application . After this was argued and
before I ruled thereon, the first respondent then scaled down its
request to be that the matter postpone for a month to allow for the
application for leave to appeal to the S CA to be delivered. The City
(albeit very reluctantly) did not object to that if I was prepared to order
as such, which I was, provided that the first respondent was ordered,
as a last opportunity, to deliver its replying affida vit in the counter -
application and heads of argument in both applications . The date of
25 March 2024 was arranged and the matter was postponed with the
first respondent to deliver its replying affidavit and heads of argument
on 12 March 2025 and 18 March 2 025 respectively.
22.35. The first respondent’s application for leave to appeal to the SCA was
due on 14 March 2025. No such application was delivered. The result
there of is that there is no application for leave to appeal to the SCA.
By 25 March 2025, at the hea ring of the matter, the application for
leave to appeal had still not been delivered (although it would have
been out of time by then ).
23. The aforegoing timeline presents a concerning narrative of serial infractions
on the part of the first respondent in complying with the Rules of Court and
even orders of this court.
24. As mentioned, no formal application for postponement was brought,
supported by any affidavit , and nor was any documentation handed up to be
relied upon . Mr Sharuh stated from the Bar that the first respondent had not
attended their consultation arranged for 19 February 2025 , that they had had
no contact from the last hearing on 19 February 2025 to 26 March 2025 and
that the first respondent had boarded a flight to France on 26 February 2025.
Mr Sharuh provided a copy of the boarding pass and an extract from the first
respondent’s passport in this regard to the City’s attorneys, although this was
not shared with the court . He referred to an email which he had sent to the
City’s attorneys which recorded that the first respondent had gone overseas
for a “sudden family emergency or held reasons ” (perhaps ‘he ld’ was intended
to be ‘health’ , but with an affidavit not having been delivered, one cannot know
for sure ). This email, too, was not shared with the court. He had not been told
anything else by the first respondent or his wife whom he had also contacted
(Mr Sharuh referred to the first respondent’s ‘wife’, but I do not know whether
he was married and the identity of the person . For convenience I will continue
to use the term ‘wife’ in this regard ).
25. The aforesaid is what was before the court.
26. Mr Sharuh did not know what the position was and after time in argument
started resort ing to speculation, even postulating to the extent that maybe the
first respondent would need a curator. I impressed upon Mr Sharuh that it was
wholly unsatisfact ory and unacceptable that nothing had been placed before
the court as to the first respondent’s medical condition , and nothing at all on
any aspect in an affidavit . In response , Mr Sharuh said that if the court wa nts
the medical information it can be given. Pregnant in that statement is that it
had not yet been requested – the reason I say this is that it had not been
obtained over the previous five weeks, which leads to the obvious (and
rhetorical) question as to why a further two or three weeks as had been
requested should be expected to make a difference.
27. No affidavit was filed by Mr Sharuh. Nor was one obtained from the first
respondent or his wife , or even a statement or an email or a text message .
28. The effective sum total of what was before the court was that the first
respondent was well enough to undertake an international flight, he was not
communicating with his attorney (including for a week before travelling to
Europe) and a vague , hearsay and cont radictory statement that the first
respondent had travelled to France because of a “sudden family emergency
or held reasons ”.
Discussion
(1) The request for a ‘reprieve’
29. As mentioned, Mr Sharuh ’s request was for what he termed a ‘ reprieve’ of two
to three weeks to place medical information before the court.
30. I asked him wh y that could reasonably be expected to make a difference
bearing in mind that he and the first respondent had already had five weeks
since the postponement on 19 February 2 025 and the first respondent ,
according to Mr Sharuh, had been incommunicado since then , even though
he could travel abroad (Mr Sharuh said that there are many emails from him
putting pressure on his client to deal with the matter. When I asked to see
them, Ms O’Sullivan , who appeared with Ms Hendricks for the City, said the
City would have liked to consider them and respond thereto. I nonetheless still
asked for the emails, but Mr Sharuh then decided not to hand them up ). This
was also four weeks since the first respondent had boarded a flight to France
because of a “sudden family emergency or held reasons ”. The fact that the
first respondent could travel abroad on 26 February 2025 leads to the
ineluctable inference that he had made himself incommunicado in the modern
age of easy inter-continental communication . His wife , too, provided no
information despite request, according to Mr Sharuh , who could give no
reason but speculated that it could be because she was scared .
31. As mentioned, Mr Sharuh provided a copy of the boarding pass and an extract
from the first respondent’s passport to the City’s attorneys to show that he had
boarded the flight (although the court was not so provided) . One of the various
problem s with this is that these documents (and certainly the first
respondent’s boarding pass) had to have originally emanated from him as the
travelling passenger or his wife . Contact in this regard had therefore taken
place in regard to the first respondent’s affairs , whether directly with him or
through his wife . This brings into sharp focus how highly improbable it is that
the first respondent and his wife could not provide any information. When it
suited them, they had even provided travel documentation.
32. Mr Sharuh ’s request for what he termed a ‘ reprieve’ of two to three weeks was
to place medical information before the court if the court wants the medical
information . That should have been done, or at least attempted to be done,
previously and no explanation, let alone proper explanation, whether on
affidavit or otherwise, was furnished to the City and the Court as to why it was
not done. Similarly, Mr Sharuh said that the reprieve would give him the
opportunity to prepare a substantive application for a postponement. That is
what should have been done already to the extent possible and only serves to
exacerbate the situation. Similarly pro blematic, Mr Sharuh submitted along the
lines that he could then get the medical information for the sake of progress
and then we would have a basis on which to proceed.
33. Mr Sharuh’s request for a reprieve was grounded in the hope that he would be
favoured with some co -operation from his client and his client’s wife in the
next two to three weeks in order to get medical information, if that is what the
court wants, as he pu t it. That last statement is per se of concern because that
information plainly should have already been sought and provided at a bare
minimum.
34. The content of the email of 18 March 2025 is extremely vague in numerous
respects. It strikes me as an exercise in vague obfuscation. For example, it is
not explained who had the medical emergency (whether the first respondent
or someone else), what was wrong with that person, where he/she went, why
he/she went there and why he/she could not be treated in this count ry.
35. Similar considerations apply to the content of the email of 5 March 2025, to
the extent that it was related to the court from the Bar.
36. In my view, that state of affairs is neither satisfactory nor sufficient , a
circumstance which is heavily aggravated by the fact that the first respondent
had been incommunicado for five weeks already – save for when it suited him
to provid e copies of his boarding pass and extract f rom his passport, whether
directly or through his wife, the court was not informed – and had flown to
Europe four weeks previously.
37. As is the nature of approaching matters in the irregular manner in which the
request for a ‘reprieve’ was made , unintended consequences can emerge. In
this instance, from the provision of the extract of the passport . The stamps
therein , according to Ms O’Sullivan , who had seen the extract, showed that
the first respondent returned to South Africa in 2020 and did not leave again
until 2023. I asked Mr Sha ruh to comment . He said that he did not dispute
what Ms O’Sullivan had said, but that the whole passport had not been
provided . The extract provided, however, I was told , contained date stamps for
the aforesaid period. On what was before the court, therefore, the first
respondent was in South Africa bet ween those dates . This contradicts his
averment under oath in the first sentence of paragraph 13.4 of his
supplementary affidavit in the counter -application , which de alt with request s
for access from August 2022 to March 2023 mentioned in paragraph 13.2
thereof , that he was not in the country in August 2022 when access to the
Properties relevant to this matter was sought. That paragraph reads as
follows:
“Unfortunately, due to my temporary absence from the Republic,
illness and hospitalisation at relevant time , I did not respond to
City’s requests for access immediately.”
38. This is further aggravated by Mr Sharuh’s statement from the Bar that the
replying affidavit in the counter -application and the founding affidavit in the
application for leave to appeal to the SCA against the granting of the Rule 30
application had been prepared and were ready . Ms O’Sullivan submitted that
those affidavits would consist primarily of legal argument and could be signed
by Mr Sharuh (a cursory consideration of this matter reveals that her
submission appears to be correct) . This was not done. M r Sharuh did not
contest Ms O’Sullivan’s submission, but claimed he did not have instructions
to sign and file the affidavits. That is facile , not least of all because the
previous postponement on 19 February 2025 was sought purely on the basis
of the application for leave to appeal being delivered – Mr Sharuh could not
have argued as he did on that date w ithout having th e instruction to pursue
that application . The converse is worse for the first respondent (and Mr
Sharuh) because, if he did not have the instruction, the previous
postponement was sought on a false premise.
39. In any event, as incongruous as it is, and raising further problems as it does ,
Mr Sharuh ’s statement from the Bar as to an instruction means that it could
even be satisfied by a simple WhatsApp or email , even a ‘thumbs up’ in
response to a request for the instruction from Mr Sharuh . Yet the first
respondent was, according to Mr Sharuh, incommunicado at even this level
for the whole five week period of the postponement from 19 February 2025 ,
despite being able to board a flight and travel to Europe .
40. Aggravating the whole situation is that Mr Sharuh did not depose to an
affidavit setting out fully what had happened for the full period from 19
February 2025 . In further aggravation, this was not done timeously (National
Police Service Union , at paragraph 4, quoted above) to afford the City an
opportunity to deal therewith. Instead, statements were made in dribs and
drabs over the course of two hours of argument for the ‘reprieve’ in a wholly
unsatisfactory and unacceptable fashion.
41. On the ba sis of the above alone, I consider ed that the ‘reprieve’ sought could
not be granted in the exercise of the court’s discretion.
(2) The application for leave to appeal to the SCA
42. The issue at stake in the Rule 30 application was whether the Premier is
obliged to be joined to this matter in terms of Rule 10A . Rule 10A requires the
joinder of the provincial or national executive authorities responsible for the
administration of the l egislation at issue in the proceedings (the By -Law) . The
question is therefore whether the Western Cape Province is responsible for
the administration of the legislation relevant to this matter (dealt with below ),
necessitating the joinder of the Premier .
43. I have perused and considered the papers and judgment in the Rule 30
application , as well as the judgment in the application for leave to appeal . A
most cursory consideration of s ection 156 of the Constitution of the Republic
of South Africa, 1996 (“the Constitution ”), reveals it to be plainly to the effect
that the legislation in question (the By -Law) is administered, implemented and
enforced by the local authority and not the province. As held by the SCA at
paragraph 16 of Telkom SA SOC Ltd v Cape Town (City) and A nother 2020 (1)
SA 514 (SCA) , the subject of which was the very By -Law relevant to this
matter (see also Cape Town City v Independent outdoor Media (Pty) Ltd and
Others 2024 ( 1) SA 309 (CC) at paragraphs 43 -45):
“In terms of s 156(1) of the Constitution a mu nicipality has executive
authority and the right to administer the local government matters
listed in Part B of Schedule 4. Relevant for present purpose is
municipal planning. Municipalities may make and administer by -laws
for the effective administration of these matters. The by -law in issue in
this case was made pursuant to that power. ”
44. In my view there can be no question that the Rule 30 application was correctly
upheld and that there is no prospect of success on appeal.
45. With the application to this court for leave to appeal having be en dismissed on
14 February 2025, an application to the SCA for leave to appeal was due by
14 March 2025. It was not delivered , despite this being the reason for the
postponement of the mat ter on 19 February 2025 . The first respondent,
according to Mr Sharuh, did not attend, without notice or explanation, their
consultation arranged for 19 February 2025 and travelled abroad on 26
February 2025, all while remaining incommunicado for the full period from 19
February 2 025 (the date of the previous postponement) to the postponed date
of hearing, 25 March 2025 .
46. In the result, t here is therefore no application for leave to appeal (or appeal)
pending in respect of the Rule 30 application.
47. This would even be the case were an application for condonation to be
lodged , in respect of which the analysis in paragraph 11 to 15 of Panayiotou v
Shoprite Checkers (Pty) Ltd and Others 2016 (3) SA 110 (GJ) is, in my view ,
apposite.
48. The possibility of an application for leave to appeal to the SCA, while the time
period for it had not yet run its course, was the main factor by which I was
apprehended in the argument for the previous postponement on 19 February
2025. This aspect is now, for the above reasons, not a possible impediment to
the matter proceeding.
49. In any event, w hile, in theory and notionally , the first respondent could, should
it at some stage see fit, apply for condonation of a late application for leave to
appeal to the SCA , I do not think that this is a realistic prospect for at least five
reasons:
49.1. The prospects of success on appeal (crucial to an application for
condonation) are extremely p oor, if not non -existent.
49.2. The reason for the non -compliance with the rules has not been
properly explained , on oath or otherwise .
49.3. Condonation without a proper explanation is notoriously difficult to
obtain in the SCA.
49.4. The recordal in M r Sharuh ’s email of 18 March 2025 is that , because
of his client’s absence , there were difficulties in bringing the
application for leave to appeal. Problems with this include:
49.4.1. The explanation is very vague : “We have informed our client
and established that he had a flight out of the country hastily
for, among others, a medical emergency .”
49.4.2. One does not know when and how the first respondent made
this communication and when and how his attorneys
established that he was hastily gone. No detail is given of
the medical emergency, including who was having that
emergency.
49.4.3. That email is also not consistent with his email of 5 March to
the City’s attorneys (not seen by the court , but mentio ned by
both Mr Sharuh and Ms O’Sullivan ) in which he said that the
first respondent had travelled to France because of a
“sudden family emergency or held reasons ”. It is also vague .
49.4.4. The further problem with this is that the issue at stake in the
Rule 30 application is not fact based. It concerns a matter of
law. The issues had been clearly delineated in the Rule 30
application , the first respondent’s application for leave to
appeal to this court and the two j udgments which followed
therefrom. Mr Sharuh could therefore have depose d to the
affidavit which was to be prepared by him in any application
for leave to appeal.
49.5. This matter cannot lie in limbo until the first respondent may bring an
application for condonation to the SCA and may obtain that
condonation .
50. In my view, for these reasons, t he prospect of an application for leave to
appeal to the SCA is of no assistance to the first respondent.
(3) The history of the litigation
51. The following emerges from the above exposition of the timeline of the
litigation :
51.1. The first respondent did not comply with two orders of this court to
deliver its answering papers in the Main application .
51.2. The first respondent did not deliver it s replying affi davit in the counter -
application which was due more than three months ago , with no
explanation attempted, let alone provided .
51.3. The first respondent did not deliver its heads of argument in the Main
application and the counter -application, with no explanation
attempted, let alone provided.
51.4. Every substantive document delivered by the first respondent was
outside of the time periods provided for in the Uniform Rules of Court.
51.5. Other than documents it wished to deliver (nota bly the founding
papers and supplementary founding affidavit in the counter -
application ), the delivery of all other substantive documents has
required an order (and sometimes more than one order) of this court
(including the answering affidavit in the main application , the replying
affidavit in the counter -application and the heads of argument in both
applications, with the latter two documents still not having been
delivered ).
51.6. There appears to be a serial and flagrant disregard of the Uniform
Rules of Cour t and even orders of this court.
51.7. The last-minute timing of the ill-fated attempt to join the Premier,
which was so lacking in merit, indicates tactics of delay.
51.8. So, too, do the attempt s to delay the matter on 19 February 202 5 and
then on 2 5 March 2025.
Conclusion
52. For the above reasons, I am of the view that the true reason for the first
respondent’s non-preparedness has not been explained at all, let alone fully ,
as is required , it cannot be concluded that the unreadiness to proceed is not
due to delaying tactics and justice does not demand that he should have
further time for the purpose of presenting his case.
53. In the premise, I declined to grant the ‘reprieve’ sought and directed that the
matter proceed . My ruling in this regard in recorded in paragraph 15 above.
54. Mr Sharuh then asked to be excused . Despite Ms O’Sullivan reminding him
that a costs order is sought against him personally , he then left the court -room
at approximately 12h30 .
55. The matter was then argued on the merits by the City until approximately
15h30 (a lunch break was not taken because half the court day had already
been used up ).
The applicable statutory scheme
56. The main application concerns the use of, building plans in respect of ,
structures on and zoning of the four Properties.
57. The purpose of a zoning scheme is explained in the minority judgment of
O’Regan ADCJ in Walele v City of Cape Town and Others 2008 (6) SA 129
(CC) , as follows:
“[129] At common law, property owners have full rights (dominium) to
determine the manner in which their property is used. But these
rights have for practical purposes never been unfettered. They have
been limited by the common law and legislation to ensure that land
ownership is regulated in a manner that is in the interest of all. In
congested urban spaces, this need for regulation is particularly
acute. Zoning or town -planning schemes are one of the key ways in
which the rights of property owners are limited. They often provide for
the maximum height of buildings in an area. They also often lim it
where a building may be built on an erf and the use to which
properties may be put in urban areas. These are all limitations on the
right of ownership .
[130] The result of a zoning scheme is thus to restrict the rights of all
owners in an area. Yet z oning schemes also confer rights on owners,
because owners are entitled to require that neighbouring owners
comply with the applicable zoning scheme. Where an owner seeks to
depart from the scheme, the rights of neighbouring owners are
affected and they ar e entitled to be heard on the departure. Owners
in the area are also entitled to be heard when land is rezoned. A
zoning scheme is therefore a regulated system of give and take: it
both limits the rights of ownership but also confers rights on owners
to ex pect compliance by neighbours with the terms of the mutually
applicable scheme. The result is that where an owner seeks to use
his property within the terms of the zoning scheme, it cannot be said
that the rights of surrounding owners are affected material ly or
adversely.”
58. In Lind and Another v Trustees for the of the time being of The Indigo Trust
(T3685/96 ) (10072/2020; 6800/2021) [2021] ZAWCHC 97 (18 May 2021) , this
court explained as follows at paragraph 28 :
“The object of zoning has been described consistently in the
jurisprudence and by the academic commentators as directed at the
coordinated and harmonious use and development of land;
cf. Johannesburg Turnbull -Jackson v Hibiscus Coast
Municipality 2014 (6) SA 592 (CC) (2014 (11) BCLR 1310 ; [2014]
ZACC 24 at para 6, Municipality v Gauteng Development Tribunal
and Others 2010 (2) SA 552 (SCA) at para 6, Broadway Mansions
(Pty) Ltd v Pretoria City Counci l 1955 (1) SA 517 (A) at 523B, Cape
Town City and Another v Da Cruz and Another 2018 (3) SA
462 (WCC) at para 80, Da Cruz and Another v City of Cape Town
and Another v City of Cape Town and Another 2017 (4) SA
117 (WCC) at para 45, Camps Bay Residents and Ratepayers
Association and Others v Hartley and Others [2010] ZAWCHC
215 (16 November 2010) at para 23, Esterhuyse v Jan Jooste
Family Trust 1998 (4) SA 241 (C) at 253H -I and Jeannie van
Wyk, Open -space systems in urban la nd-use planning: invaluable
assets in conserving the environment and enhancing the quality of
life 2005 TSAR 256 at 260 at §4 (citing Van Wyk Planning
Law (1999) 30 -35). That much has also been expressly been
recognised in various legislative equivalents of the By -Law, some of
which are identified in the aforementioned judgments. ”
59. The significance of this municipal function was commented on by Rogers AJ
(as he then was) in Intercape Ferreira Mainliner (Pty) Ltd and Others v
Minister of Home Affairs and Others 2010 (5) SA 367 (WCC), in which he
stated (at paragraph 105) that land us e contrary to the then in force (Western
Cape ) Land Use Planning Ordina nce 15 of 1985 (LUPO ) would frustrate the
very purpose of town planning :
“The purpose of town planning would, in my view, be frustrated if
the State as a significant user of land were free to disregard
zoning restrictions. Even if only a few pieces of land in a particular
area were free to be used by the State contrary to the zoning for
that area, the character of the area and the welfare of the
members of the community in that are a would be jeopardised and
the planning objectives of the local authority (as approved by the
province) frustrated. ”
60. The City is the local authority responsible for the administration,
implementation and enforcement of the Building Act, the By -Law, and the
DMS , including in the area in which the Properties are located .
(1) The Act
61. Section 4(1) of the Act provides as follows:
“No person shall without the prior approval in writing of the local
authority in question, erect any building in respect of which plans and
specifications are to be drawn and submitted in terms of this Act. ”
62. Section 4(4) of the Act makes a contravention of section 4(1) a criminal
offence:
“Any person erecting any building in contravention of the provisions of
subsection (1) shall be guilty of an offence and liable on conviction to a
fine not exceeding R100 for each day on which he was engaged in so
erecting such building. ”
63. Section 17 of the Act provides that the Minister may make regulations, to be
known as National Building Regulati ons, regarding, inter alia , the preparation,
submission and approval of plans.
64. Regulation A25(1) of the Building Regulations provides as follows:
“No person shall use any building or cause or permit any building to be
used for a purpose other than the purpose shown on the approved
plans of such building, or for a purpose which causes a change in the
class of occupancy as contemplated in these Regula tions, whether
such plans were approved in terms of the Act or in terms of any law in
force at any time before the date of commencement of the Act, unless
such building is suitable, having regard to the requirements of these
Regulations, for such first -mentioned purpose or for such changed
class of occupancy .”
[emphasis added]
65. Regulation A25 also provides for the service of various non -compliance
notices, including notices to cease any contravention of the Act, notices to
rectify any contraventions of the A ct, including by demolition, and notices
calling upon an owner to obtain the necessary approvals in order to render
building works compliant .
66. Section 7(1)(a) of the Act, provides as follows:
“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; ”
67. Section 7(1)(a) requires the City, when considering building plans , only to
approve them if it is satisfied that the application in question complies with the
requirements not only of the Act, but also any other applicable law , in which
event it must approve them .
68. The provisions of t he By -Law and the DMS fall within the term “ any other
applicable law ” in s 7(1)(a) : compare the similar situation in the case of
another municipality and its Integrated Development Plan: eThekwini
Municipality v Tsogo Sun KwaZulu -Natal (Pty) Ltd 2007 (6) SA 272 (SCA) at
paragraph 25. Thus absent compliance with the By -Law or obtaining the
necessary approvals thereunder, building plan applications cannot be
approved by the City.
(2) The By -Law and the DMS
69. The By -Law was enacted to regulate and contr ol municipal planning matters
within the geographical area of the City. The preamble thereof provides in part
as follows:
“WHEREAS section 2(2) of the Spatial Planning and Land Use
Management Act ( Act 16 of 2013 ) permits other legislation to prescribe
an alternative or parallel mechanism, measure, institution or system on
spatial planning, land use, land use management an d land
development in a manner consistent with the provisions of that Act,
and the City intends through this By -Law to prescribe such a
mechanism, measure, institution and system;
WHEREAS the City intends to regulate and control municipal planning
matters within the geographical area of the City. ”
70. In terms of section 2 of the Western Cape Land Use Planning Act 3 of 2014
(“LUPA”), the City has the responsibility to enforc e the By -Law, inclusive of the
DMS, which has force of law in terms of section 26(3) of the By -Law. Section
2 provides as follows :
“(1) This By -Law applies to all land within the geographical area of
the City, including land owned by the state.
(2) This By -Law binds every owner and every user of land, including
the state. ”
71. Section 35 of the By -Law deals with ‘use rights ’, and provides that:
“(2) No person may use or develop land unless the use or
development is permitted in terms of the zoning scheme or
an approval is granted or deemed to have been granted in terms
of this ByLaw.
(3) No person may contravene or fail to comply with a condition
of approval imposed or deemed to have been imposed in terms
of this By -Law.”
72. Section 42 of the By -Law provides for a list of 22 different types of
applications ((a) to (v)) that a person may make in terms of the By -Law. This
includes item (h) which provides for an application for a “ … consent, approval
or any other permission or requirement in terms of the development
management scheme .”
73. In terms of section 124 of the By -Law the City has a wide ambit of
enforcement measures which it can take in different combinations and
sequence :
“124. Choice of enforcement measure
The City may take any one or more of the enforcement measures
contemplated in this Chapter, and may take them in any order or
combination or with one as an alternative to another in the event of a
failure to comply, or sequentially. ”
74. Section 125 of the By -Law deals with complaints by affected persons in
respect of alleged contraventions of the By -Law. Section 125(2) provides that
the City must investigate complaints received in terms of section 125(1) :
“125 Complaint
(1) A person, who is affected by an alleged contravention of this By -
Law, may in writing and using the prescribed form or in a manner
determined by a policy, request the City Manager to investigate
the alleged contravention and to act in terms of this Chapter.
(2) The City must investigate the complaint within the time and
in accordance with the procedure set out in guidelines adopted by
the Department.
(3) The City must inform the complainant of the outcome of the
investigation within 30 days of the invest igation being completed
and the steps to be taken in the event that the City is of the
opinion that this By -Law is being contravened. ”
75. Section 129 and 130 of the By -Law deal with administrative penalt ies and
correction s of contravention s. Section 129 pro vides in relevant part that:
“129. Administrative penalty
(1) A person who is in contravention of this By -Law, and who wishes
to rectify the contravention in terms of section 130, may apply to
the City for the determination of an administrative penalty if
the City has not issued a demolition directive (in terms of
subsection 128) in respect of the land or building or part thereof
concerned.
(1A) The Municipal Planning Tribunal may, where any person has
contravened this By -law, –
(a) decide to impose an administrative penalty; and
(b) determine the amount of the penalty.
(2) A person making an application contemplated in subsection (1)
must –
(a) submit an application;
(b) pay the prescribed fee;
(c) provide the information contemplated i n subsections (7) and
(8); and
(d) comply with the duties of an applicant in section 78. ”
76. Section 78 of the By -law provides inter alia that all information supplied to the
City by an applicant must be accurate :
“78 Duties of an applicant
(1) An applicant must ensure that –
(a) no misrepresentation is made to the City;
(b) the City is not misled;
(c) all information furnished to the City is accurate; and
(d) the application does not omit any relevant information.
(2) A person who contravenes subsections (1)(a) or (1)(b) is guilty an
offence and upon conviction is liable to the penalties
contemplated in sections 133(2) and 133(3).
77. Section 130 of the By -law provides:
“130 Rectification of contravention
(3) A person who is in contrave ntion of this By -Law may apply to the
City in terms of this By -Law for the necessary approval.
(4) Subject to subsection (3), a person contemplated in subsection
(1) must s ubmit an application for and pay an administrative
penalty determined in terms of secti on 129 before the City may
consider an application contemplated in subsection (1).
[emphasis added]
(5) If an application for an administrative penalty contemplated in
section 129 has been submitted but not yet determined, or an
administrative penalty determined in terms of section 129 has not
yet been paid, in exceptional circumstances the City may consider
an application contemplated in subsection (1) provided that the
City, when granting an approval or making a determination, must
impose appropriate conditions to ensure payment of any
administrative penalty. ”
78. The structure of the By -Law is therefore as follows in the case of
irregular ities/non-compliances :
78.1. Section 130(1) allows for a person in contravention of the By -Law to
apply to the City in terms of the By -Law for the necessary approval
(section 42 lists most of the items for which approval may be sought) .
78.2. Prior to applying for irregularities/non -compliances to be rectified, an
applicant must submit an administrative penalty application in terms of
section 129.
78.3. In terms of section 130(2), a person in contravention of the By -Law
must submit the administrative penalty application and pay the penalty
before the City may consider an application in terms of section 130(1) .
79. The crucial aspect of section 130 for the purpose of this application is that the
granting of an administrative penalty application is not a corrective measure
for contraventions of the By -Law. It is the first required step before a n
application for the rectification of a contravention can be made. For reasons
which will become apparent later, fundamental to this matter is that the
granting of an administrative penalty application does not cure anything which
is in contravention of the By -Law. That must come later. This informs the relief
sought in the notice of motion in the main application and the order granted
below.
80. Section 131 of the By -Law deals with “ Enforcement litigation ” and provides
that:
“131 Enforcement litigation
Notwithstanding that this Chapter may give the City an alternative
remedy, the City may apply to the High Court for appropriate relief,
including orders compelling the owner or other person to –
(a) demolish, remove or alter any building, structure or work ere cted in
contravention of this By -Law, and rehabilitate the land concerned; and
(b) cease or modify conduct in contravention of this By -Law, to comply
with this By -Law, or to address another impact of the contravention.”
(3) The applicable zoning in terms of the D MS
81. As mentioned , the Properties are zoned single residential zoning 1:
conventional housing (SR1) in terms of the DMS.
82. SR1 is described as follows in the DMS:
“Part 1 - Single Residential Zoning 1: Conventional housing (SR1)
The SR1 zoning provides for predominantly single -family dwelling
houses and additional use rights in low - to medium -density residential
neighbourhoods, whether these incorporate small or large erven.
Limited employment and additional accommodation opportunities are
possi ble as primary or consent uses, provided that the impacts of such
uses do not adversely affect the surrounding residential environment. ”
83. The following use restrictions apply to properties in this SR1 zoning:
“21 Use of the property
The following use restr ictions apply to properties in this zoning:
(a) Primary uses are dwelling house, private road and additional use
rights as specified in paragraph (b).
(b) Additional use rights which may be exercised by the occupant of a
property are home occupation, bed and bre akfast establishment,
second dwelling, third dwelling and home child care, subject to the
following conditions:
(i) Except for a second dwelling, only one of the activities listed as
additional use rights shall be conducted on any land unit as a
primary u se. Where more than one such activity is required, the
City’s approval shall be obtained;
(ii) The dominant use of the property shall be a dwelling house for
accommodation of a single family;
(iii) The proprietor of the activity concerned shall live on the
property;
(iv) The conditions stipulated in items 23, 24, 25, 25A or 25B
(whichever is applicable) shall be adhered to;
(v) Any new structure or alteration to the property to accommodate
an additional use right shall be compatible with the residential
character of the area, particularly with regard to the
streetscape, and shall be capable of reverting to use as part of
the dwel ling house, second dwelling, third dwelling or
outbuilding concerned; and
(vi) No more than three employees shall be engaged by the
occupant in the activity concerned.
(c) Consent uses are utility service, place of instruction, place of
worship, house shop, institution, guest house, rooftop base
telecommunication station, wind turbine infrastructure, open space,
urban agriculture, veterinary practice and halfway house. ”
84. The following relevant to this matter emerges f rom the above :
84.1. The SR1 zoning permits a s econd and a third dwelling as primary uses,
subject to certain conditions, but does not permit any further additional
dwellings on a property .
84.2. Although the SR1 zone permits a bed and breakfast establishment, that
requires the occupant of the dwelling to su pply lodging and meals for
compensation to transient guests who have permanent residence
elsewhere .
84.3. Only one domestic staff quarter per land unit is permitted, unless
additional quarters are allowed by the City .
84.4. The operation of a boarding house (and also a backpacker’s lodge) is
not permitted in SR1 zoning.
The impugned building works on the Properties
85. Between December 2021 and March 2022, the City received numerous
complaints relating to building works at the Properties and the use of the
Properties as boarding houses.
86. The City, as the relevant local authority, is responsible for the enforce ment of
the Building Act and its Regu lations, the By -Law and the DMS. In order to do
so, upon receipt of complaints, the City is obliged ( must ) to investigate the
complaints in terms of section 125(2) of the By -Law. This required that the
City undertake physical inspections at the Properties .
87. The City carried out various inspections , at times being allowed partial access
to the Properties, and at other times being allowed full access to the
Properties . The last ins pection was a joint inspection of all four of the
Properties by var ious officials of the City on 23 February 2023 . These various
inspections culminated in a series of notices being issued by the City in
respect of illegalities identified by the City on each of the properties . The
earliest four notices were issued on 31 January 2022 and 2 February 2022 . In
practice, what the identification involves is the comparison of the approved
plans to what was actually built to see if there are any di screpancies and if
there are any then there has been a contravention – a relatively simple and
objective exercise.
88. Subsequent to the main application having been launched, the first
respondent opposed the application , but requested that the City attempt to
mediate the dispute with him. The City acceded to his request and the parties
attempted informal mediation.
89. As part of these mediation attempts, the first respondent submitted a number
of applications to the City which included applications for the imposition of
administrative penalties and applications for rezoning , accompanied by
motivations for using the Properties as boarding houses . The City, in my view
correctly, contends that these amounted to concession s that the relevant
building works on th e Properties were unlawful and that the City was correct in
its assertion that the Properties were being used as boarding houses.
90. The City contends that e ach of the applications that were submitted by the
first respondent were deficient and/or inaccurate and/or incomplete in several
respects , predominantly because every one of the applications which were
submitted failed to disclose the full extent of the additions and alterations
carried out at the Properties , and the usage of the Properties with these
alterations . The City further contends that i n order to submit regularisation
applications, the first respondent is required to submit comprehensive
administrative penalty applications for each of the P roperty, and to pay the
penalty. Absent that, th e rectification of the contraventions cannot take place.
This is confirmed by the analysis of the legislation above. It is the construct of
the By -Law which is fundamental to the main application . I therefore agree
with the contentions of the City recorded in this paragraph .
91. The first respondent seeks to rely on the administrative penalty applications
which were granted in support of his assertion that the relief that the City
seeks has been rendered moot by his voluntary regularisation attempts. This
is incorrect for the reasons set out in the analysis of the legislation above .
92. Anticipating this following the mediation efforts, t he City filed a supplementary
founding affidavit before the first respondent filed any answering affidavit ,
placing evid ence before the court concerning these applications and
explaining, correctly, in my view, why they did not rectify the contraventions
based on the construct of the By -Law articulated above .
93. Each of the contraventions in respect of each of the Properties are addressed
in the next four sections .
Erf 8 […]: The Erica Property
94. The City’s inspections revealed that a structure, built with what is called
‘Nutec ’, had been erected directly over the swimming pool on the property.
The swimming pool had been emptied of water, but had not been filled, and
the Nutec structure, which had been elevated above the ground by the use of
bricks along the outside edge of the s tructure only, was entirely unsupported
in the middle. It was also internally divided into four separate living units.
95. Despite issuing compliance and/or cease works notices , and despite
assurances (as far back as February 2022) from the first respondent that he
would submit plans to regularise the unlawful building works, and despite
several deficient and at times contradictory submissions by the first
respondent , it remains that this structure is on the Erica P roperty without any
approved building plans and without the safety concerns of its location having
been addressed.
96. The existing garage was converted into a residential unit which extended right
up against the boundary wall of the Erica Property which is a contravention of
the building line .
97. Several rooms on the ground floor of the main dwelling were divided and/or
converted into bedrooms : these were the sunroom, dining room and living
room , bringing the total number of bedrooms in the main dwelling unit to ten
(inclusive of the converted garag e).
98. During February 2024, the first respondent submitted an application for an
administrative penalty in respect of the Erica Property.
99. The application describes another contravention as follows : ‘THE SECOND
DWELLING ENCROACHES THE 3m COMMON BOUNDARY BUILDING
LINE ’. The motivation accompanying the application indicates the extent of
the contravention as 22 m2.
100. No further contraventions are disclosed by the first respondent or his agent.
This is in breach of section 78 of the By -Law, quoted abo ve.
101. Consideration of the building plan attached to the application indicates that the
contravention disclosed by the first respondent relates to the Nutec structure
only, which is labelled as a proposed second dwelling. This is in breach of
section 78 of t he By -Law.
102. The application and motivation indicate that the structure was built during the
Covid -19 lockdown in order to provide a family with a safe place to reside
during that time. The motivation, however, indicates that construction was only
completed during 2022 , long after the national lockdown had been lifted.
Additionally, the complaints relating to this structure were first received in
January 2022 at which time construction was in its early stages.
103. This was the first of a number of appli cations by the first respondent . The City
explain ed that, as is ordinarily the case with an application of this nature, it
was randomly assigned to a Development Manager assessment officer.
104. The application was assessed at face value , namely an application for an
administrative penalty only in respect of constructing the Nutec structure in
contravention of the 3 metre building line. The extent of the contravention was
marked as 22m2 and, as such, the first respondent was exempted from
payment of any penalty in terms of a staff circular that provides for categories
of contraventions to be exempted from section 130 of the By -law. One such
category is a structure that contravenes a common boundary line on land
zoned single residential 1, provided tha t the total contravention does not
exceed 25 m2, the contravention is on the ground floor and the structure is a
single storey that does not exceed 4 metres in height, measured from the
existing ground level to the top of the roof of the structure.
105. The con travention disclosed by the first respondent in his application for an
administrative penalty for the Erica Property was both inaccurate and
incomplete in that it disclosed only a portion of the unlawful land use and
building works identified by the City d uring the various inspections.
106. Unfortunately, the case officer did not know this and, as a result, the first
respondent ’s application was neither questioned nor assessed in the context
of the on -going litigation, or the previous enforcement notices issued. When
viewed as a single, first -time, contravention it met the requirements for a
penalty exemption and the exemption was granted.
107. Despite the exemption that has been granted in respect of the Nutec
structure, it remains the case that there are no approved building plans for the
structure and that it is therefore unlawful . The administrative penalty
application has no effect on this. It also remains the case that there are many
more instances of non -compliance at the Erica Property. In this regard, for
example :
107.1. The plan submitted by the first respondent shows that the existing
patio is nestled between the Nutec structure on its left and the existing
dwelling on its right. The existing dwelling is portrayed as being built
right up against the boundary wall. The building plan annexed to the
founding affidavit illustrates that the area to the right of the existing
patio is, in fact, an approved garage. The first respondent has thus
masked the plan by falsely depicting the garage as part of the existing
dwelling. Masking the plan in this way allows the first respondent to
utilise this space as part of the existing dwelling , in other words for
accommodation. While there would be no building line contravention if
this space was used as a garage, there is a b uilding line contravention
if the space has been incorporated into the main dwelling. The
administrative penalty application is silent on this issue .
107.2. The space marked on the plan as “EXISTING GARAGE” and
measuring 23.94 m2 also contravenes the 3 metre building line. This
space has been converted for use as accommodation. The
administrative penalty application makes no mention of this. Given
that the first respondent has labelled the Nutec structure as a
proposed second dwelling, this can only mean that the erstwhile
garage will be a proposed third dwelling. As such, the first respondent
would also be in contravention in respect of the building line boundary
there .
107.3. The first respondent does not address the fact that, despite marking
the Nutec structure a s a proposed second dwelling (suited for use by
a single person or family), the structure is actually four separate
dwelling units, each of them fitted with individual cooking and ablution
facilities and electrical connections .
107.4. The first respondent does no t deal with the fact that the Nutec
structure has been erected over an unfilled swimming pool and is not
properly stabilised .
107.5. The application makes no reference to the internal renovations carried
out by the first respondent . These changes were all carried out
without prior building plan approval.
108. In my view, the City has established by means of the aforegoing that the
application for an administrative penalty submitted by the first respondent in
respect of the unlawful building works at th e Erica Property , does not and
cannot serve th e purpose of regularising them for two independent reasons,
name ly (1) a successful application for an administrative penalty does not
rectify a contravention and (2) the application was incomplete and inaccurate .
109. Even with the administrative penalty exemption that has been granted, the
building plans submitted by the first respondent cannot be approved and the
unauthorised building works remain unlawful. Furthermore, a further
comprehensive administrative penalty a pplication must be submitted for any
approval to even be a legal possibility (section 130 (4) of the By -Law) .
110. The City submits, in my view correctly, that the first respondent is intent on
circumventing the regulatory framework and that, absent a court orde r, the
City has little to no chance of effectively enforcing its regulatory framework.
111. In my view, therefore, the City has established the various instances of
unlawfulness adumbrated above in respect of the Erica Property .
Erf 3 […] Milnerton : the Algoa Property
112. The City’s inspections of the Algoa Property revealed that:
112.1. The existing garage had been extended to the front and to the back
boundary of the property and converted into a dwelling unit. This
extension contravenes the 3 metre building line setback .
112.2. Additions were made to the back of the main dwelling, which had
been separated into four separate dwelling units .
112.3. The patio area had been enclosed and was being used as a dwelling
unit.
112.4. Internal alterations were carried out to the m ain dwelling. The
approved plans depict a three -bedroom main dwelling , but inspections
revealed a total of seven bedrooms in the main dwelling.
113. The first respondent has submitted two applications in respect of the Algoa
Property .
114. The first is an applicatio n for an administrative penalty , in which he discloses
only that he created two separate units on the property for accommodation
purposes. No mention is made of the building line setback in the
administrative penalty application.
115. The second is for rezoning and a permanent departure and removal of
restrictive title deed conditions , in order to allow the first respondent to use the
Algoa Property as a boarding house.
116. The building plan s which accompan y these applications make repeated
references to proposed additions and proposed bedrooms when, in fact, as
was evident during the site inspections of the property, these additions and
alterations ha d already been carried out . The additional bedrooms already
exist. This needs to be fully dealt with in the administrative penalty application
in that the first respondent must disclose that he has already carried out these
alterations.
117. The applications do not address the matter of the covered patio having been
converted into a dwel ling unit, or the correct number of bedrooms (which were
observed during the inspection ). This does not align with the number of
bedrooms indicated on the approved plans.
118. The first respondent claims that the construction took place in mid -January
2023 and that he was not aware of the contravention. The difficulty for the first
respondent with this assertion is that by mid -January 2023, he had already
been served with several notices (in respect of this and other properties)
notifying him that he was not permitted to build without prior approved building
plans.
119. For the reasons explored above, w ithout a comprehensive and accurate
application for an administrative penalty, any land use application cannot be
considered, let alone approved . Until land use clea rance is given, a building
plan application cannot be approved .
120. As long as it remains the case that the first respondent does not have
approved building plans for the additions and alterations at th e Algoa P roperty,
those additions and alterations will rem ain unlawful. Furthermore, without land
use approval , the current use of the Algoa Property as a boarding house is
also unlawful.
121. In my view, therefore, the City has established the various instances of
unlawfulness adumbrated above in respect of the Algoa Property .
Erf 3 […]2 Milnerton : the Ceres Property
122. Inspections at the Ceres Property revealed the following :
122.1. The carport had been covered and converted into approximately 8 or
9 bedrooms .
122.2. The patio area had been covered and was converted into 3
bedrooms .
122.3. The existing tandem garage had been converted into 4 bedrooms .
122.4. Internal alterations had been carried out in the main dwelling in order
to create more bedrooms.
123. The first respondent ’s application for an administrative penalty in respect of
the Ceres Property specifies only the contravention of converting the double
garage into two (not four) habitable rooms for accommodation purposes.
124. The first respondent substituted his application, including by submission of an
amended plan that indicates fourteen marked -up additional bedrooms on the
property.
125. This is reinforced by the application for rezoning, permanent departure and
amendment and suspension or deletion of restrictive title deed co ndition which
was lodged for the Ceres Property. The stated purpose for this application is
the intended operation of a boarding house. Pregnant in the se applications is
the concession of the numerous illegalities.
126. However, these applications are all premi sed on inaccurate and incomplete
administrative penalty applications. For the reasons set out above, u ntil such
time as the first respondent remedies that, the construct of the By -Law means
that he is precluded from submit ting any application seeking approval of the
irregular building works.
127. In my view, therefore, the City has established the various instances of
unlawfulness adumbrated above in respect of the Ceres Property .
Erf 2 […] Milnerton : the Heather Property
128. Inspections at the Heather P roperty revealed the following :
128.1. Two Nutec structures had been erected on the property, one as a
single dwelling unit, while the other was divided into three dwelling
units .
128.2. The existing garage was converted into a bedroom .
128.3. The carport was converted into four bedrooms with a corridor that
was interleading into the main dwelling, where three bedrooms, a
kitchen and a bathroom had been created at the back of the house .
128.4. Three bedrooms were created internally .
128.5. There are a total of fifteen bed rooms on the property.
129. The first respondent ’s application for an administrative penalty indicates that
the first respondent converted a garage into a room and erected seven more
rooms for accommodation purposes. The application was n ot accompanied by
an application for rezoning or an indication that this property would be used as
a boarding house. This is in circumstances where the first respondent has
created at least ten additional accommodation spaces at the property.
130. Although the application indicates the construction of seven bedrooms, the
accompanying plan shows eight units outside of the main dwelling and does
not indicate any internal changes. No explanation is provided for this
discrepancy.
131. The application is silent in respect of the building line contraventions brought
about by the conversion of the garage and carport into dwelling units. The
administrative penalty application is not accompanied by an application for a
permanent departure.
132. In my view, therefore, the City has established the various instances of
unlawfulness adumbrated above in respect of the Heather Property .
General observations in regard to the Properties and the administrative
penalty application s
133. It appears that the first respondent has submitted the administrative penalty
applications referred to above (“the AP application s”) in the mistaken belief
that they can allow him to avoid the consequences of the relief sought in the
City’s application. They appear not to be good faith attempts to regularise his
unlawful conduct. They are also not effective for the reasons set out above .
134. As dealt with above, the f irst respondent has submitted documents to the City
which significantly understate the extent of the unlawful building works and
usage on the Properties. As a result, these applications cannot and will not
serve even as a first step in the process to regularise the problems identified
by the City , let alone to regularise them .
135. In Lind and Another v Trustees for t he of the time being of The Indigo Trust
(T3685/96) and Another (10072/2020; 6800/2021) [2021] ZAWCHC 97 (18
May 2021) , it was alleged that an area depicted as a garage on a building
plan had been deliberately mislabelled in order to obtain the approval of a
building with a much greater floor space tha n permitted in terms of the SR1
zoning scheme, with the intention that much of the area that had been marked
as garage space would subsequently be used for other purposes after the
building had been completed . In finding that there was merit in the allegation,
the court held as follows at paragraph 20 :
“It is obviously important that building plans submitted for approval in
terms of the Building Regulation Act should speak for themselves. In
the va st majority of cases the two most important considerations in the
assessment of such plans in terms of s 7(1)(a) of the Act for the
purposes of legal compliance are compliance with the National
Building Regulations and compliance with the land use and
deve lopment restrictions in terms of the applicable zoning scheme.
The assessment must be objective in nature if the purpose of the
legislation is to be achieved. The legal compliance (or lack thereof) of
the building plan application must be apparent not on ly to the officials
or body charged with undertaking the assessment, but equally so to
any other informed person (including a court) reviewing the plans.
Self-evidently, that cannot happen unless the plans accurately reflect
not only the dimensions but al so the intended usage of the
components of the contemplated building that they purport to depict. ”
136. Section 78 (quoted above) of the By -Law imposes a duty on an applicant in
any application made in terms of the By -Law to ensure that no
misrepresentation is made to the City, th at all information furnished to the City
is accurate and that the application does not omit any relevant information.
137. The plans and applications submitted by the first respondent cannot regularise
the position as they do not disclose the extent of the unlawfulness, as is
required for an administrative penalty application. In any event, the
administrative penalty application , even if granted, does not regularise or
rectify the contraventions. That must b e done in accordance with section 130
as read with section 42.
138. The City argued that the conduct of the first respondent has demonstrated
that the only way in which the City can effectively ensure compliance with its
regulatory scheme is t hrough a mandatory order in terms of which the first
respondent is directed to submit applications to regularise the position . It was
further argued that the first respondent cannot be left to submit applications as
and how and when he chooses because he will simply continue to do so in a
manner that understates or conceals the true extent of the nature of the
contraventions indefinitely. While the content of the second of these
sentences is correct, I raised with Ms O’Sullivan, who appeared for the Cit y,
my unease with ordering and directing the first respondent – under pain of
contempt proceedings – to submit applications when he could, conceivably,
give up the ghost and decide not to regularise and rather to restore . In that
event he would have to re move the irregularities and re store the applicable
Properties to be in compliance with the approved plans and the City would be
entitled to its enforcement and rectification relief as sought on the passing of
the first or any other deadline set by the court for the regularisation process to
be undertaken .
139. I have catered for this in the order at the end of this judgment. To be clear
insofar as that order is concerned , as soon as any one (or more) of the items
in paragraphs 4 and 5 of the order at the end of this judgment is not complied
with timeously and in full, irrespective of whether the first respondent intends
to attempt to regularise or not, the City will be entitled to set the matter down
for the enforcement relief in paragraph 6 of the order at the e nd of this
judgment .
140. As I have found above, there have been numerous building contraventions
without the necessary authorisations and permissions f rom the City. The
extensive contraventions and the deficient AP applications canvassed above ,
tend to support the City’s contentions and I therefore agree therewith , subject
to what I have indicated in the above paragraph .
141. It is a fundamental principle of our law that a person may not engage in an
activity without all the necessary authorisations or permissions r equired
(Maccsand (Pty) Ltd v City of Cape Town & Others 2012 (4) SA 181 (CC) at
paragraph 17 an d 18; Dark Fibre Africa v City of Cape Town 2019 (3) SA 425
(SCA) at para graph 37).
142. In my view, t he City is therefore entitled to the declaratory relief that it seeks
as well as the relief directing the first respondent to file a set of accurate and
compliant regularisation applications should he wish to regularise , and if he
does not do so and does not remove the irregularities and restore the
applicable Properties to comply with the approved plans, then the
enforcement and re ctification relief may be sought by the City .
The interdictory relief
143. The City seeks interdictory relief which it avers is aimed a t ensuring future
compliance with the Act, the By -Law and the DMS. The relief sought is:
143.1. To prevent the first respondent, or any entity or person controlled or
instructed by him, from contravening the Act, the By -Law and the
DMS in future, be it in respect of the Properties or any other property
owned or controlled by the first respondent .
143.2. To ensu re that the City officials may enter the Properties, or any other
property owned or controlled by the first respondent, in order to
inspect and monitor compliance with the order granted in this matter.
144. I indicate below, in formulating the order in this mat ter, the extent to which I
agree with the relief sought.
145. The requirements for a final interdict are well established: a clear right, an
injury actually committed or reasonably apprehended (i.e. a future injury) , and
no other satisfactory remedy, that is, an absence of similar protection by any
means other than an ordinary remedy. ( Setlogelo v Setlogelo 1914 AD 221 at
227). These elements are considered below in turn.
(a) A clear right
146. An authority charged with enforcing a statute has a clear right to prevent its
contravention (Minister of Health v Drums and Pails Reconditioning CC t/a
Village Drums & Pails 1997 (3) SA 867 (N) at 872 CE). The City has a clear
right to insist on and enforce compliance with the statutory scheme in the
interests of the local community.
147. In my view, the facts of this matter illustrate that: The first respondent has
demonstrated a sustained disregard for the la w. He has failed to comply with
the requirements of the notices, letters of demand and further requests from
the City and persists in submitting inaccurate and incomplete applications to
the City .
148. The City has a statutory duty to ensure the enforcement o f the provisions of
the statutory scheme and to approach the court to obtain appropriate relief
(including an interdict ) against any person who in contraven tion thereof, as in
United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987
(4) SA 343 (T) (especially at 348IJ and 349F) , referred to in Chung Fung (Pty)
Ltd and Another v Mayfair Residents Association and Others (2148/2019)
[2023] ZAGPJHC 263 (20 March 2023) at para 18 , both o f which are full
bench decisions .
149. The City has a clear right (and obligation) to insist on and enforce compliance
with the provisions of the Act, the By-Law and the DMS in the interests of the
local community. This has previously been confirmed in the conte xt of the
Land Use Planning Ordinance 15 of 1985 which was the predecessor to LUPA
(City of Cape Town v Maccsand (Pty) Ltd and Others 2010 (6) SA 63 (WCC)
at 81; Maccsand (Pty) Ltd v City of Cape Town and Others 2012 (4) SA 181
(CC) at para 17 )
150. In Ostrowiak v Pinetown Town Board 1948 (3) SA 584 (D) at 591 (cited with
approval in Bitou Local Municipality v Timber Two Processors CC and Another
2009 (5) SA 618 (C) at 626F ) it was held as follows :
“The public interest requires that the control and regu lation of buildings
in local authority areas should be placed in the hands of the local
authority itself ... (I)f private persons are permitted to erect buildings in
the teeth of the law, then there is an end to any sound local
government.”
151. Similarly, in United Technical Equipment Co (Pty) Ltd v Johannesburg City
Council 1987 (4) SA 343 (T) it was held at 348IJ as follows :
“The respondent has not only a statutory duty but also a moral duty to
uphold the law and to see to due compliance with its town planning
scheme. It would in general be wrong to whittle away the obligation of
the respondent as a public authority to uphold the law. A lenient
approach could be an open invitation to members of the public to
follow the course adopted by the appellant, n amely to use land illegally
with a hope that the use will be legalised in due course and that
pending finalisation the illegal use will be protected indirectly by the
suspension of an interdict .”
152. I am of the view that t he City has a clear right (and an obl igation) to enforce
the Act, the By -law and the DMS .
(b) An injury committed or reasonably apprehended
153. The numerous instances of non -compliance adumbrated above establish the
injury having been committed .
154. Those instances , together with the numerous instances of non -compliance
with notices and incomplete AP application s, establish the reasonable
apprehension of fu ture injury .
155. The requirement of an injury actually committed or reasonably apprehended is
therefore, in my view, established.
(c) No adequate alternative remedy
156. The City avers that there is not any effective, alternative remedy which is
available to it to ensure that the first respondent does not continue with his
unlawful conduct in future .
157. It is open to the City to lay crimin al charges against the first respondent. This
does not ensur e that the first respondent does not simply continue with his
unlawful conduct at the Properties or sell the Properties, purchase new
properties and then operate as he has done in this matter. His impunity in
doing so up until now demonstrate s this.
158. In Minister of Health v Drums and Pails Reconditioning CC t/a Village Drums
& Pails 1997 (3) SA 867 (N) at 877EG it was held that the fact that the
particular statute in issue in that matter provides for a criminal sanction for
contravention thereof, was no bar to the granting of an interdict.
159. In Berg River Municipality v Zelpy 2065 (Pty) Ltd 2013 (4) SA 154 (WCC) it
was held at para graph 45 that:
“The fact that the Municipality might be able to lay a charge in terms of
s 4(4) in respect of the unlawful erecting of the new structures is not
an alternative remedy in respect of the unlawful use of the completed
structures. It would not even have been an adequate remedy in
respect of the unla wful erecting of the new structures. As I indicated
earlier, the only penalty is a fine not exceeding R100 per day of
unlawful building work. That would not come to more than about
R27 000. Zelpy built the structures for commercial exploitation. Its
managi ng director and controller Mr Edmondson stated in the
answering affidavit that the extension of the accommodation facilities
in 2004 was the only way to make the commercial operation viable. He
states that Zelpy spends more than R110 000 per year on repair s and
maintenance. Its annual turnover, according to annexed financial
statements, currently exceeds R1 million. Although the financial
statements reflect an accounting loss, it is wholly implausible that
Zelpy would have been deterred from erecting the un lawful structures
by exposure to the modest fine for which s 4(4) makes provision.”
160. Even if a conviction results from the institution of criminal charges , this will not
prevent continuing or future unlawful conduct , as it punishes past conduct.
The fines which may be imposed are furthermore of a limited nature. As held
in Zelpy , the criminal process is likely to be singularly ineffective in putting an
end to the unlawful conduct of the first respondent .
161. For all of t hese reasons, in my view criminal sanction is not an effective
alternative remedy , nor is it an “ordinary” remedy.
162. There are sound policy reasons for not restricting local authorities to penal
sanctions. The damage caused by the unlawful conduct is damage to the
public interest and to the City’s ability to ensure compliance with the law.
163. The City has demonstrated that the first respondent has continued with his
non-compliance even after this application was launched . The first respondent
is motivated to continue in future as, in his own words, his “… business
undertakings mainly include but are not limited to purchasing, developing
immovable property for purposes of providing affordable accommodation. ”
And that “The Cit y is not only frustrating my said business but is now misusing
and/or abusing its power or discretion to discriminately target and stifle
business through its conducts ” when what the City is actually doing is
enforcing the Act, By -Law and DMS as it is obli ged to do.
164. This echoes the findings of Rogers J in Zelpy quoted above.
165. I am therefore satisfied that the City has no effective alternative remedy.
Mediation
166. The first respondent avers that the City ought to be compelled to mediate the
dispute in terms of uniform rule 41A.
167. In my view, any further mediation will not prove successful on the facts of this
matter, whether it is formal or informal. The City , despite filing a formal
opposition to mediation in terms of rule 41A, agreed to informal mediati on, but
that did not progress the matter in any respect. That is not surprising, because
the first respondent’s unambiguous goal is to maintain, for all intents and
purposes, what I have found to be unlawful structures . This is also reflected in
the defective and incomplete applications which were submitted as a part of
this attempted mediation.
168. In any event, it has been held that parties to litigation cannot be compelled to
mediate in terms of rule 41A. In Kalagadi Mangane se (Pty) Ltd and Others v
Industrial Development Corporation of South Africa Ltd and Others
(2020/12468) [2021] ZAGPJHC 127 (22 July 2021) it was held at para 30 as
follows:
“The provisions of R 41A accord with the understood purpose of
mediation and its general nature and functioning. At the expense of a
degree of repetition:
a. Mediation is encouraged as a form of alternative dispute resolution.
The only sanction for a failed mediation is the possibility of an
adverse costs order;
b. Mediation is entirely voluntary and if the parties, or only two of
them, are so minded they are at liberty to agree on such terms of
mediation as they wish;
c. An unwilling party cannot be compelled to mediate. The furthest a
court can go is to direc t a litigant “ to consider ” mediation…”
169. I am of the view that directing the City and the first respondent to consider
mediation will be of no use.
170. The mediation defence is therefore of no merit.
Authority to institute / oppose proceedings
171. The first respondent challenges the authority of the City to institute the
proceedings and to oppose the counter -application.
172. The City attached all relevant authorities to its replying affidavit in the main
application and its answering affidavit in the counter -application which it
submits disposes of the point entirely. I agree.
Complaints not provided
173. The first respondent avers that he had no knowledge of the complaints
against him.
174. While the complaints themselves were not provided, because section 125 of
the By -Law does not oblig e the City to provide them, the first respondent was
notified by the City and thereafter its attorneys when the City received
complaints of unlawful building works and use of the Properties , and that the
City required access to the Properties in order to investigate those complaints.
Access was then either arranged or provided by the first respondent , which,
the City submit s, put paid to his allegations that he was not aware that
complaints had been made. This is self -evident and I therefore agree.
175. Further, the City contends as follows: the complaints are relevant only insofar
as they serve to explain the history of the matter to the court and that they
serve only to explain how the City first became aware that there may be
contraventions for the City to investigate. It is the investigation and the
inspections themselves that gave rise to the main application and it is
therefore those inspections tha t are relevant for the determination of this
matter, and not the complaints that were initially received in relation to the first
respondent. A complaint cannot and does not affect the rights of the party
against whom they are laid. In terms of s 125(2) of the By -Law (quoted above)
the City must investigate a complaint. If in such an investigation the City
independently forms the opinion that the By -law is being contravened, the City
may, in terms of s ection 124(1) of the By -Law (quoted above) , take any one or
more of the enforcement measures contemplated in that Chapter of the By -
Law, and may take them in any order or combination or with one as an
alternative to another in the event of a failure to comply, or sequentially. If the
City concludes that there has been no contravention of the By -Law, then there
is nothing to be answered. In other words, the first respondent is not before
the court answering to the complaint of the MCRPA. He is before the court
answering to the independent investigati ons carried out relating to
contraventions of the By -Law and the Building Act . I agree with these
averments.
176. It is of some moment that the first respondent was provided with each
complaint as a part of the City’s founding papers and has had ample
opportun ity to respond to them should he have considered it relevant to do so .
He has not done so despite having them in his possession since at least
January 2024.
177. As to the investigations themselves, the first respondent cannot contend that
he had no knowledge o f them given that he had to engage with the City’s
inspectors in order to arrange access to the Properties for the purpose of the
City carrying out its investigations. There would be no application before this
court but for those investigations and those i nvestigations, in turn, could not
have been carried out without access to the Properties. In the absence of a
court order giving the City access, which it did not and does not have, the City
needed permission from the first respondent to access the Properties, which it
obtained. First respondent confirmed this in writing in an email to the City on 9
August 2022 in which he stated: “ I have urgently managed to arrange fo r
access for inspection …”
178. In the premise, in my view, the City has made out a case for appropriate relief.
179. The counter -application will now be considered to determine whether it affects
the aforesaid conclusion.
The counter -application
180. The first respondent brings his counter -application in terms of the Promotion
of Administrative Justice Act 3 of 2000 (PAJA) , alternatively , the common law.
181. The relief sought by the first respondent in the counter -application includes :
181.1. The failure to furnish the first respondent with the complaints of the
MCPRA prior to undertaking an investigation be declared irrational,
unreasonable and unlawful .
181.2. The City’s decision to i nvestigate complaints against him without prior
notice to him be declared unlawful and invalid .
181.3. The City’s process and decision to find that he had contravened the
By-Law and Regulations be declared unlawful , invalid, reviewed and
set aside .
181.4. The City’s decision to i nstitute the main application on the basis of the
complaints, investigation s and findings be declared irrational,
unreasonable and invalid and, accordingly, set aside .
182. The simple answer to all of these complaints is that they are legally inva lid for
the reasons set out above under the main application . I will deal with them
further below for the sake of completeness.
183. The point of departure in a PAJA review is that each of the decisions that an
applicant seeks to review and set aside are indeed decisions which constitute
administrative action . To use the language of section 1 of PAJA, they must
have direct, external legal effect.
184. This requires that the action under consideration be final and that it create s
legal obligations . It must impact directly and immediately on an individual and
it must have legal consequences (Greys Marine Hout Bay (Pty) Ltd and
Others v Minister of Public Works and Others 2005 (6) SA 313 (SCA) at
paragraphs 22 to 24). At paragraph 24 the SCA held as fol lows:
“Administrative action is rather, in general terms, the conduct of the
bureaucracy (whoever the bureaucratic functionary might be) in
carrying out the daily functions of the state which necessarily
involves the application of policy, usually after its translation into law,
with direct and immediate consequences for individuals or groups of
individuals .”
[emphasis added]
185. The City contends as follows: a consideration of the facts of the main
application make s it clear that no such decision has been taken by the City. To
the contrary, the City has carried out an investigation, as it is obliged to do in
terms of the relevant statutory scheme, and it has placed the outcome of that
investigation before this court i n order for the court to make a final
determination on whether or not the first respondent has engaged in unlawful
activity and, if so, what is to be done to remedy the contraventions . The first
respondent has not been denied any right to respond to the al legations .
Indeed , he is invited to do so by the City in its notice of motion and is entitled
to do so through the mechanisms provided in the Uniform Rules of court. No
action taken by the City thus far has any direct legal effect. The City is seeking
an order from this court in order to ensure that the first respondent complies
with the By -Law and remedies the manifest contraventions. According to the
City, t he steps that have been taken may be summarised as follows:
185.1. The City received complaint s that there were unlawful building works
at the Propert ies. It did not take a decision to receive these
complaints, they were simply sent to the City .
185.2. The City is statutorily and constitutionally obliged to investigate these
complaints in terms of section 125(2) of the By -Law. It is not entitled to
make a decision in this regard . It must do so .
185.3. The City has placed its findings before this court and has asked for a
final determination as to the lawfulness of the first respondent ’s
conduct and, flowing from such a declaration, to impose binding
obligations upon the first respondent .
185.4. The decision to launch the main application is not, and cannot be,
determinative of the first respondent’s rights and obligations. This is
because launching the application gives rise to nothing more than the
City’s right to place its case before this court . The City must still prove
its case to th e satisfaction of the court before it will be entitled to any
relief. Equally for the first respondent , he is entitled to place his case
in defence before the court. It is then for the court to determine the
rights and obligations of the parties. Nothing t hat has final external
legal effect or direct and immediate consequences came about as a
result of the decision to launch the main application . The first
respondent has a full right to be heard i.e. audi alteram partem prior to
any decision being taken th at can finally impact upon his rights.
186. The City contends that t here is simply no decision that has been made by it
that is capable of being reviewed and set aside. Similarly, the City contends, if
the first respondent can establish an entitlement to procee d with a legality
review, there is no decision to be reviewed as there has been no exercise of
any power. The City’s officials have, to date, done nothing more than what
they are statutorily required to do, and they have turned to the court to now
obtain finality in the matter, utilising an enforcement mechanism which is
competent in terms of the By -Law.
187. The City therefore contends that the counter -application must fail simply
because there is nothing that can be reviewed or set aside, not in terms of
PAJA and not in terms of the common law.
188. I agree with these submissions.
Whether t he review is out of time
189. The City contends that the application for review is also out of time (1) in
terms of the 180 days provided for in PAJA and (2 ) it has been brought after
an unreasonable delay that ought not to be condoned and which has not been
explained by the first respondent .
190. The first respondent must, in terms of section 7(1) of PAJA, have launched the
counter -application without unreasonable delay and wi thin 180 days of
becoming aware of the administrative action.
191. In Opposition to Urban Tolling Alliance and Others v The South African
National Roads Agency Ltd and Others [2013] 4 All SA 639 (SCA) it was held
at para graph 26 (approved by the Constitutional Court in Buffalo City
Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC)
at para graph 49) that the 180 day period set out in section 7(1) of PAJA is
indicative of the fact that the legislature consid ered a delay exceeding 180
days to be :
“… unreasonable per se. It follows that the court is only empowered to
entertain the review application if the interests of justice dictates an
extension in terms of section 9 . Absent such extension, the court has
no authority to entertain the review application at all.”
192. The “ … clock st arts running from the date that the applicant became aware or
reasonably ought to have become aware of the action taken .” (Buffalo City at
paragraph 49). If the first respondent became aware of what it regards as the
City’s decisions on 15 January 2024, the counter -application ought to have
been launched by 15 June 2024. The first respondent launched the
application two months later without a ny explanation for his failure to adhere
to the 180 day time limit of PAJA. In terms of the authority referred to above
the delay is per se unreasonable. Since no explanation is offered for it
whatsoever, that finalises the question for the purposes of PAJ A.
193. Insofar as undue delay in a legality review is concerned , this is not addressed
at all by the first respondent . The Constitutional Court has held in Buffalo City
at para graph 52) that:
“… the reasonableness of the delay , must be assessed on, among
others, the explanation offered for the delay … [which must] cover the
entirety of the delay ... But, as was held in Gijima, where there is no
explanation for the delay, the delay will necessarily be unreasonable. ”
194. In summary, t here is no explanation by the first respondent for his delay in
launching the counter -application. There is a suggest ion that he only became
aware of the ‘decisions ’ of the City on 28 June 2024 while consulting with his
attorneys . This cannot be so because, as t he City points out , this would have
to mean that the first respondent and his attorneys, who had represented him
since February, had not read the main application . If this is true, the City avers
that it is anything but reasonable conduct given that the parties were in the
midst of ongoing litigation and that the first respondent had agreed to file
answering papers in April 2024 . I agree with this submission .
195. The first respondent has presented no basis upon which this court could
exercise its discretion in his favour. The delay has not been explained and no
reasons have been advanced for why the delay ought to be excused.
The City contends that the c ounter -application is an abuse of process
196. The City sub mits that there are several indicators that the counter -application
is not a legitimate attempt to review and set aside any decision of the City, but
is rather an attempt to delay a final decision in the main application . In making
this submission the City relies on inter alia the following:
196.1. The first respondent strenuously insists that the main application be
mediated in terms of rule 41A. If the first respondent is of the view that
the City’s conduct in instituting the main application was unlawful,
then there is nothing to be mediated. Despite the launching of the
counter -application (which preceded the filing of the first respondent ’s
answering affidavit in the main application ) the first respondent
maintains his position in the main application that the matter must be
mediated. This notwithstanding an already unsuccessful attempt at
mediation. This indicates that the ultimate goal of the first respondent
is to delay finalisation of the main application and nothing more .
196.2. The time periods for the hearing of the counter -application further
suppor t this view in that the main application was to be finally
determined on 20 August 2024, however the counter -application,
which included an application to stay the main application , made no
provision for it to be heard prior to the hearing of the main application .
It was, in the City’s submission, a clear attempt to stay the main
proceedings through nothing more than the threat of the counter -
application’s relief.
196.3. The true purpose of the counter -application was to secure the further
delay of the hearing of the main applicatio n.
196.4. The first respondent, who is dominus litis in the counter -application,
has not filed a replying affidavit. The City has met every deadline
imposed by the court for the exchange of affidavits. The first
respondent is persisting with such delaying tactic s in an attempt to
once again prevent the matter from being heard.
197. I might add that n o heads of argument in the counter application (or the main
application ) have been delivered by the first respondent. A further factor is the
joinder application which ef fectively hijacked the hearing of the matter in
October 2024 (crowded out) and then in November 2024.
198. The City contends that t he first respondent is litigating in an unacceptable
manner and submits that the C ourt ought to view this as an abuse of this
court’s processes.
199. While there appears to be some merit in these contentions, I do not consider it
necessary to make a decision thereon bearing in mind my views expressed
herein on other aspects applicable to the counter -application .
The substantive ground s underlying the review
(a) Investigation of complaints without prior notice to the first
respondent
200. In an email from the first respondent to the City’s inspector on 9 February
2022 , he confirms that they had spoken about the unlawful building works at
the Erica Property telephonically and that he was submitting applications to
“legalize the process”, a clear acknowledgement that it was not legal to begin
with.
201. A letter dated 5 August 2022 from the City’s previous attorneys inform ed the
first respondent that, as a result of various complaints , the City was seeking
access to the P roperties in order to carry out inspection s. The first respondent
replied in writing on 9 August 2022 indicating that he ha d managed to arrange
for urgent inspection of the Erica Property.
202. In an email from the first respondent on 11 August 2022 , he records that he is
attempting to arrange for access to the remaining properties, namely Algoa,
Ceres and Heather. He also indicates that he is attempting to legitimise the
building works under discussion and that “Lebo” (referred to in the City’s
affidavit s as Ms Monakali ) will be available to assist the City with access to the
Properties in his absence.
203. Further correspondence between the City’s erstwhile attorneys and the first
respondent , dated 15 December 2022 and 19 January 2023, records the City
calling for access to the Properties in order to investigate the complaints
against the first respondent, and the first respondent agree ing to arrange such
access and stating that he is taking steps to regularise the position.
204. While the written complaints themse lves were not furnished to the f irst
respondent , he was aware that complaints were made and of the City’s
investigation of the complaints.
205. Insofar as the complaint of the first respondent is that he did not receive
copies of the complaints sent to the City , he is not entitled to receive such
complaints in terms of s ection 125 of the By -Law. Citizens are entitled to
submit complaints anonymously. This is done for their protection. The City is
only obliged to inform complainants of the outcome of the investigation and of
steps, if any, which are to be taken in terms of section 125.
206. The first respondent was aware of the fact of the complaints and the
investigations and therefore t his ground of review is of no merit.
(b) Enforcement notices
207. The first res pondent avers that he had no knowledge of the City’s
enforcement notices and that, accordingly, the main application , has been
instituted without such prior notice having been properly served on him.
208. The facts, however, in my view, show that the first respondent was aware of
the City’s various enforcement notices:
208.1. On 2 February 2022, various enforcement notices were sent to the
first respondent via email , forming part of the papers .
208.2. On 9 February 2022, after a previous telephone call between the first
respondent and a City inspector in which the latter informed him about
the notices, the first respondent sent an email in response. That email
response was sent on the same email chain as the initial email
serving the enforcement notices on him.
208.3. That he did , in fact , see them, is evidenced by the fact that on 14
February 2022, a matter of days after the first respondent replied to
the email chain containing the notices, he submitted building plans in
an attempt to regularise what was raised by the City in it s notices .
These plans, drawn up the very day after the City’s notices were
emailed to the first respondent , indicate that that he was well aware of
the notices prior to 9 February 2022 .
208.4. On 21 February 2022, the City’s inspector personally attended at the
Erica Property for an inspection. He was met and given access by the
first respondent himself. This averment is made in the founding
affidavit in the main application and, in response, the first respondent
states that he “ cannot admit or deny such further details but put the
Applicant to proof thereof. ” The proof is the evidence of the City’s
official in the founding affidavit .
208.5. Notices were also sent to the first respondent via WhatsApp. The first
respondent does not explain that, or why , he did not receive those
messages, but he received and was able to respond to subsequent
messages.
208.6. An email from the first respondent dated 11 August 2022 recorded
that “Lebo will help out during times I am unable to do so. ” As
mentioned, Lebo is Ms Monakali . On 3 October 2022, enforcement
notices were served on Ms Monakali . While he states that he did not
receive the notices, the first respondent offers no explanation as to
why he was not made aware of them , and in any event he had
indicated Ms Monakali would be involved . There is also no affidavit by
Ms Monakali.
208.7. The first respondent states in his application for an administrative
penalty for the Ceres Property: “In response to the served notice of
boarding ho use i have appointed IKHAYA DEV Townplanners and
Construction (Pty) Ltd. ” The words which I have placed in bold and
underlined ’ expose that the first respondent received the notice.
209. In my view, therefore, the first respondent was aware of the notices and this
ground of review is of no merit.
(c) Adverse findings without an opportunity to be heard
210. The first respondent contends that the City made adverse findings against him
without giving him an opportunity to be heard.
211. Neither the By -Law nor the Act require notice to be given to the first
respondent , prior to taking any enforcement steps.
212. The City has conducted inspections and, on the basis of what they
established at these inspections, t ook enforcement steps in terms of the By -
Law.
213. In the circumstances, I am of the view that there is no merit in this ground of
review.
The con stitutional challenge
214. It is axiomatic that constitutional litigation challenging the validity of legislation
is litigation of the most serious and important order, a consideration which is
even more app osite in the case of legislation such as the By -Law which
affects a great number of persons on an everyday basis. All litigation ,
especially litigation of this nature, must be approached in a responsible ,
disciplined and correct manner.
215. The first respondent launched a review by way of counter -application which
has been dealt with already in this judgment.
216. In its answering affidavit, the City pointed out that the first respondent had not
launched any challenge in respect of the empowering legislation that gave rise
to the City’s investigation into the firs t respondent’s unlawful conduct.
217. What followed was paragraph 16 of a supplementary founding affidavit and a
Rule 16A notice which alleged sections 125, 126 and 128 of the By -Law to be
unconstitutional and invalid . The first respondent did not seek any reli ef to that
effect in the amended notice of motion. Despite the City pointing out that no
such relief was sought in the notice of motion, and that there is no application
before this court which requires a determination of the constitutionality of
these provisions , the first respondent did nothing to remedy that position, nor
has it filed a replying affidavit .
218. The substantive portion of paragraph 1 6 of t he supplementary founding
affidavit in the counter -application reads as follows:
“That the Honourable Court declares sections 125, 126 and 128 of
the City of Cape Town Municipal Planning By -Law, 2015 as
amended (By -law) unconstitutional and invalid to the extent that it
empowers the City to:
16.1 Entertain complaint(s) without construc tively notifying and/or
affording me the opportunity to respond thereto ;
16.2 Conduct investigation of alleged complaints with prior written
notice to me in respect thereof;
16.3 Exercise judicial and/or quasi -judicial powers determine my
guilt for alleged contravention of the City’s relevant By -Law
and National Building Regulations without any prior charges
and/or affording me the opportunity to plead thereto;”
219. Nothing of any moment was presented in the founding papers in the counter -
application. N o replying affidavit has been delivered despite being many
months overdue , but it is in any event trite that a case must be made out in
the founding papers.
220. What is of significant moment is the conspicuous absence of any atten tion
being directed to which provisions of the Const itution were breached and why
that is contended to be the case . Sections 126 and 128 of the By -Law (quoted
below) in particular are fairly lengthy provisions, yet nothing is identified .
221. In similar vein, nothing is said as to which portions of the applicable sections
are to be impugned on the basis of what is stated in the aforesaid paragraph
16.
222. It appears to me that the aforesaid paragraph 16 was a very poorly thought -
out and very poorly executed after -thought with no real conviction as to the
merits thereof . To borrow from the vernacular of American Football , a ‘Hail
Mary’ , which is a desperate, long -distance throw, typically attempted in the
final seconds of a game, with a very low chance of completion, often used as
a last -ditch effort in desperation to salvage a losing cause .
223. The supplementary founding affidavit was very repetitive and was to a
significant extent a cut and paste job from the founding affidavit, even
including a reservation of the right to supplement in accordance with Rule
53(4) which was what was being done in that very same affidavit.
224. No relief in respe ct of the constitutional challenge has in fact been sought and
properly pleaded .
225. In my view, a constitutional challenge is not properly before the court and the
counter -application in this respect is to be dismissed for this reason . This
sentence illustrat es the fallacy of the situation: because no relief has been
sought in the notice of counter -application, there is actually nothing in that
notice to specifically dismiss or grant insofar as a constitutional challenge is
concerned.
226. I might add that, while it is for the court to determine aspects such as reading
in or reading down or suspension of invalidity in granting just and equitable
relief, nothing has been placed before the court to assist in these respects .
227. It is impermissible for a party to rely on a constitutional complaint that was not
pleaded (Phillips and Others v National Director of Public Prosecutions 2006
(1) SA 505 (CC) at paragraph 39) .
228. In Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC) it
was held as follows at paragraph 22 :
“Parties who challenge the constitutionality of a provision in a statute
must raise the constitutionality of the provisions sought to be
challenged at the time they institute legal proceedings. In addition, a
party must place before the Court information relevant to the
determination of the constitutionality of the impugned provisions.
Simil arly, a party seeking to justify a limitation of a constitutional right
must place before the Court information relevant to the issue of
justification. I would emphasise that all this information must be placed
before the Court of first instance. The placi ng of the relevant
information is necessary to warn the other party of the case it will have
to meet, so as [to] allow it the opportunity to present factual material
and legal argument to meet that case. It is not sufficient for a party to
raise the consti tutionality of a statute only in the heads of argument,
without laying a proper foundation for such a challenge in the papers
or the pleadings. The other party must be left in no doubt as to the
nature of the case it has to meet and the relief that is soug ht. Nor can
parties hope to supplement and make their case on appeal.”
229. The constitutional review of legislation such as the By -Law would be of wide -
ranging effect and ought to be undertaken with due care , attention to detail ,
discipline and responsibility .
230. In short, the constitutional review leaves much to be desired in many respects
and is not properly before the court .
231. In the premise, I consider it to be inappropriate to determine a constitutional
challenge .
232. For the sake of completeness, however , were I to consider the constitutional
issue, my views would be as set out below.
The City’s municipal planning competency
233. The City contends that t he counter -application is premised on a
misapprehension and erroneous interpretation of the relevant provisions of the
By-Law.
234. The City has executive authority in respect of , and the right (and obligation) to
administer , the matters listed in Part B of Schedule 4 and Part B of Schedule 5
of the Constitution. This includes the administration of the legislative
provisions that govern municipal planning and building regulations , such as
the By -Law.
235. The City has the constitutional and statutory obligation to regulate land use
within its geographical area of jurisdiction. In doing so, the City applies and
enforces the By -Law, schedule 3 of which is the DMS.
236. The City applies and ad ministers the By -Law (as well as its building related
competency in terms of the Act ) to facilitate the lawful and appropriate
development and use of land within the City. This all forms part of the
‘Developmental dut ies of municipalities ’ of the City ( in terms of section 153 of
the Constitution) and the constitutional object of local government ‘ to promote
social and economic development ’ (section 152(1)(c) of the Constitution).
The relevant provisions of the By -Law
237. Complaints are addressed in section 125 of the By -Law.
238. Section 124 of the By -Law affords the City a choice of enforcement measure:
“The City may take any one or more of the enforcement measures
contemplated in this Chapter, and may take them in any order or
combination or with one as an alternative to another in the event of a
failure to comply, or sequentially. ”
239. The constitutionality of section 124 is not impugned in these proceedings .
There is therefore no challenge to the City’s authority to take enf orcement
measures, or its discretionary power to select an appropriate measure. This
appears out of kilter, and undermines, paragraph 16 of the supplementary
founding affidavit.
240. The measures contemplated in section 124 of the By -Law include inter-alia
issuing a compliance notice (in terms of section 126), or a directive (in terms
of section 128), the payment of an administrative penalty (in terms of section
129) and enforcement litigation (in terms of section 131).
241. Section 125 :
241.1. Section 125(1) provides that any person who is affected by an alleged
contravention of the By -Law is entitled to request the City Manager to
investigate the alleged contravention and to act in terms of the
enforcement Chapter.
241.2. Section 125(2) provides that the City “ must ” investigate the complaint.
241.3. Section 125(3) provides that the City must inform the complainant of
the outcome of the investigation and the steps to be taken in the event
that the City is of the opinion that the By -Law is being contravened.
242. There are two important aspects to note in respect of section 125 :
22.1. It confers no powers on the City other than powers of investigation and
thereafter, to act in terms of the enforcement chapter.
22.2. Section 125 does not require the City to furnish the complaint itself to
an individual in the position of the first respondent (this is considered
briefly below) .
243. Section 126 of the By -Law provides as follows:
“Compliance notice
(1) The City may serve a notice on an owner or other person if there
are reasonable grounds for believing that the owner or other
person is in contravention of this By -Law.
(2) The notice must –
(a) describe the land unit;
(b) describe the conduct constituting a contravention of this By -
Law;
(c) indicate which provision of this By -Law, condition of approval
or other provision the conduct contravenes;
(d) if relevant, state that the unlawful conduct constitutes an
offence and indicate the penalties;
(e) instruct the owner or other person to cease the unlawful
conduct and to comply with this By -Law, condition of approval
or other provision immediately or within a time period
determined by the City, and where relevant must specify the
steps to be taken to comply;
(f) state that a failure to comply with the notice constitutes an
offence and indicate the penalties; and
(g) state that, in the event of non -compliance with the notice, the
City may take one or more of the following measures –
(i) if relevan t, take steps contemplated in section 127 to
withdraw an approval for a temporary departure or an
approval granted for a limited period of time;
(ii) take steps contemplated in section 128 to issue a directive
in the terms specified in the notice;
(iii) apply in ter ms of section 129 for the determination of an
administrative penalty;
(iv) apply to a competent court for appropriate relief including
the costs of the application; and
(v) institute a criminal prosecution.”
244. Section 128 of the By -Law provides as follows:
“Directive
(1) If the City is of the opinion that an owner of other person is in
contravention of this By -Law, it may serve a notice on the owner or
other person –
(a) setting out the information contemplated in sections 126(2)(a) -
126(2)(c); and
(b) inviting the owner or other person within a specified time to
make written representations on the notice and give reasons
why the City should not direct the owner or the other person
within a specified time to –
(i) submit documentation including a diagram or plan to the
City or appoint a professional person selected by the City
to conduct an investigation and to report to the City on the
nature and extent of the contravention;
(ii) demolish a building or part thereof which contravenes this
By-Law and restore the building or rehabil itate the land as
the case may be to a form and within the time period
specified in the directive; or
(iii) address another impact of the contravention.
(2) After considering any representations and reasons submitted, and
if it is satisfied that this By -Law is being contravened, the City may
decide to use a directive in terms which are the same as,
substantially similar to or less onerous than those contemplated in
subsection 1(b).
(3) A directive must –
(a) set out the directions;
(b) include the information contemplated in section 104(2);
(c) state that a failure to comply with a duty imposed by the
directive constitutes an offence and indicate the penalties; and
(d) state that instead of, or in addition to, prosecuting the owner or
the other person, without further notice the City may apply to a
competent court for enforcement of the directive and other
appropriate relief including costs of the application.
(4) The owner or other person must comply with a directive from the
effective date of decision contemplated in section 105(2).”
245. Sections 131 and 132 of the By -Law entitle the City to approach the High
Court for relief. Section 131 of the By -Law provides as follows:
“Notwithstanding that this Chapter may give the City an alternative
remedy, the City may apply t o the High Court for appropriate relief,
including orders compelling the owner or other person to –
(a) demolish, remove or alter any building, structure or work erected
in contravention of this By -Law, and rehabilitate the land
concerned; and
(b) cease or modify conduct in contravention of this By -Law, to comply
with this By -Law, or to address another impact of the
contravention. ”
246. The first respondent has not sought to challenge s ection 131 of the By -Law,
despite claiming that the City breached his rights in launching the main
application .
Certain contentions of the City in regard to the c onstitutional aspects
247. As mentioned, no relief in respect of a Constitutional challenge is sought in
the first respondent’s amended notice of motion. In the Rule 16A notice, the
first respondent alleges that the impugned provisions “confer wide and unf itted
[unfettered] power upon the City to entertain and investigate all and/or any
complaint of an alleged contravention of the [By -Law] against inter alia , an
owner (as the Applicant) … determine guilt, issue sanctions and enforce
compliance against inter alia , an owner without giving a notice and opportunity
to the owner and/or the person against whom such complaint is being made to
have access to such complaint and respond thereto at any time… ’.
248. The Rule 16A notice avers that the “City delegates such unwelded power to
entertain, investigate, determine guilt, sanction and enforce said finding prima
facie or bare allegations against inter alia an owner. In this instance, City, did
so without following procedural fairness, without notice, or furnishing such
compla ints or opportunity to respond to the said complaints or giving reasons
or provide mechanisms to lodge internal remedies in terms of Act 3 of 2000 .”
249. The City contends as follows : The Constitutional challenge lacks any factual
foundation, because the impugned legislative provisions do not s tate nor have
the effect that the first respondent suggests . In other words, the first
respondent alleges that the impugned provisions allow for a host of unlawful
behaviour on the City’s part when, in f act, the provisions themselves do not
provide for any such unlawful conduct.
The City’s investigative function
250. The enforcement steps taken by the City under the By -Law, as provide d for in
the impugned provisions, are only followed after the City :
250.1. has receive d complaints of alleged unlawful building works (or
establishes the unlawfulness itself, which is not a common reality
because of the high number of properties in the area concerned and
the very small number of inspectors , as referred to below ); and
250.2. has investigated the complaints as it is obliged to do by section 125 of
the By -Law.
251. The crux of the first respondent ’s challenge is that the City entertained the
unlawful building works complaints anonymously, and that it then carried out
its investigatio ns without notice to him, without allowing him to have sight of
the complaints, and without affording him an opportunity to participate in the
investigation. He also contends that the City makes a finding of guilt.
Anonymous complaints
252. The City explains that there are sound reasons for permitting the anonymous
submission of complaints . The City does not have the human resources to
monitor compliance throughout its area of jurisdiction at all times and is
therefore dependent upon the residents of Cape Town to bring contraventions
of the By -Law to its attention. This is particularly the case, given the number of
properties in the area for which its building and land use inspectors are
responsible. There are only six land use inspectors (including a principal land
use inspector), and six building inspectors (including senior building
inspectors) employed in the Blaauwberg District while the geographic spread
thereof is extensive . The requests and complaints received from the public
serve a legitimate and extremely important purpose. Complaints are a
necessary mechanism to ensure that contraventions are identified and , as a
result , for the effective enforcement of the legislative scheme.
253. The City permits the anonymous submission of requests in terms of section
125(1) of the By -Law. According to the City, t his is because it must facilitate a
system in which residents are not deterred from bringing contraventions of the
By-Law to its attention, due to a fea r of reprisal from those against whom the
complaints are made. Without the assurance to citizens that they are safe
from retaliatory conduct, the City’s reporting system would be rendered
ineffective. The reporting system is fundamental to the City effecti vely
exercising its legislative mandate in relation to municipal planning and building
regulations.
254. The City contends that th is reason ing is similar to the motivation for enacting
the Protected Disclosures Act 26 of 2000 (“the Disclosures Act”) which
provides protection for whistle -blowers in the workplace . The preamble thereto
articulates the reason for its enactment as follows:
“And bearing in mind that –
Neither the South African common law nor statutory law makes provision
for mechanisms or procedu res in terms of which employees may, without
fear of reprisals, disclose information relating to suspected or alleged
criminal or other irregular conduct by their employers, whether in the
private or public sector;
Every employer and employee has a respon sibility to disclose criminal
and any other irregular conduct in the workplace;
Every employer has a responsibility to take all necessary steps to ensure
that employees who disclose such information are protected from any
reprisals as a result of such dis closure;
And in order to –
Create a culture which will facilitate the disclosure of information by
employees relating to criminal and other irregular conduct in the
workplace in a responsible manner by providing comprehensive statutory
guidelines for th e disclosure of such information and protection against
any reprisal as a result of such disclosures;
Promote the eradication of criminal and other irregular conduct in organs
of state and private bodies .”
255. The Disclosures Act provides mechanisms through which unlawful conduct in
the workplace may be reported, and it emphasises the importance of persons
who make such disclosures being protected against reprisal from those
implicated by their disclosures.
256. The City demonstrated the importance of enforcement in relation to its
municipal planning competency , to ensure that residents of the City adhere to
the By -Law, referred to above . There is no legislation similar to the
Disclosures Act in the municipal context that governs the social contract
between neighbours and citizens and offers protection to those who report
unlawful activity to the City, as the enforcement authority.
257. In the premises, in my view, there is no merit in the first respondent’s
complaint in this respect.
Exercise of the City’s inves tigative function without audi applying
258. Conversely, the protection offered to the person who has allegedly committed
the contravention which is the subject of the complain t (in this case, the first
respondent ) is that no enforcement action flows from the receipt of the
complaint.
259. It is only after the City has independently investigated (which it must do on
receipt of a complaint) and found objective prima facie evidence of a
contravention of the By -Law (essentially comparing the approved plans to
what is built on the ground) , that the City proceeds to take one of the
enforcement measures provided for in the By -Law.
260. The City contends that the investigation itself is not administrative action, and
the first respondent was not entitled to audi alteram partem at that stage.
There are two distinct stages in complaints of this nature . The first is purely
investigative, and it is only the second stage which is determinative of a
party’s rights. In that stage the By -Law provides for audi.
261. In Chairman , Board on Tariffs and Trade and Others v Brenco Inc and Others
2001 (4) SA 511 (SCA) the SCA consider ed, inter alia , whether the Board on
Tariffs and Trade (BTT) had violated the principles of natural justice by
making recommendations to the Minister of Trade and Industry without giving
the respondents access to all information at its disposal or the opportunity to
respond thereto prior to the BTT making the recommendation. The SCA held ,
at paragraph 14, that no single set of principles for giving effect to the rules of
natural justice is applicable to all investigations, official enquiries and
exercises of power and emphasised the need for a flexible approach in
applying the p rinciples of natural justice. The SCA also considered the nature
of BTT investigations and found that in terms of its empowering legislation,
BTT performs both an investigative and determinative function. It went on to
hold as follows at paragraph 29 and 3 0:
"Whilst BTT has a duty to act fairly, it does not follow that it must
discharge that duty precisely in the same respect in regard to the
different functions performed by it. When BTT exercises its
deliberative function, interested parties have a right to know the
substance of the case that they must meet. They are entitled to an
opportunity to make representations. In carrying out its investigative
functions, BTT must not act vexatiously or oppressively towards those
persons subject to investigati on. In the context of enquiries in terms of
ss 417 and 418 of the Companies Act 61 of 1973, investigatory
proceedings, which have been recognised to be absolutely essential to
achieve important policy objectives, are nevertheless subject to the
constraint that the powers of investigation are not exercised in a
vexatious, oppressive or unfair manner."
262. The SCA held (at paragraph 42) that when BTT carried out its investigative
functions , fairness did not demand that ‘every shred of information provided to
BTT should be made available to the respondents ’ but rather that the standard
applicable was that they know the substance of the case they must meet
before the determinative body. The SCA also dealt with the fact that BTT
inspectors had obtaine d information from a third party, and that the
information had not been given to the respondents so that they could test its
correctness. On this point the Court held at paragraph 51 :
"There is no requirement that BTT in the investigation of a matter must
inform the parties of every step that is to be taken in the investigation
and permit parties to be present when the investigation is pursued by
way of the verification exercise. There is no unfairness to the
respondents in permitting the officials of BTT to clarify information
without notice to the respondents. To hold otherwise would not only
unduly hamper the exercise of the investigative powers of BTT, but
would seek to transform an investigative process into an adjudicative
process that is neither envisaged by the BTT Act, nor what the audi
principle requires."
263. In Norvatis SA (Pty) Ltd and others v Competition Commission and Others
CT22/CR/B/Jun 01, 2.7.2001 at para 54 – 55, the Competition Tribunal held
as follows in relation to a similar challenge to the Competition Commission’s
powers to refer a complaint to the Competition Tribunal, with reference to
Brenco :
“The Brenco decision is entirely in point in relation to the mat ter at hand.
It is our view that the distinction drawn by the Court between an
investigative and a determinative function performed by public bodies
is crucial in ensuring that public bodies are not unduly restrained in
their work where the exercise of the ir powers carries no serious or final
consequences for affected parties.
In the context of this application the distinction drawn by the Court
between investigative and determinative administrative conduct by
public bodies disposes of the applicants' cas e. In terms of the decision
in the Brenco case the violations of natural justice alleged by the
applicants against the commission can only be upheld if the complaint
referral by the commission constitutes a determinative action. Our
view is that it does no t.”
264. This distinction has also been recognised by the S CA in Simelane and Others
NNO v Seven -Eleven Corporation SA (Pty) Ltd and Another 2003 (3) SA 64
(SCA) in which , at paragraph 17 , it accepted the reasoning of the Competition
Tribunal in Norvatis , and reiterated that a n investigative function is not subject
to review, save in cases of ill -faith, oppression, vexation or the like (which has
not been established by the first respondent ).
265. It is against this backdrop that the remaining enforcement provisions of the
By-Law must be understood, i.e. that prior to any enforcement steps, the City
must undertake an investigation , in respect of which the first respondent is not
entitled to audi alteram partem .
266. Section 126 only allows the City to send a compliance notice to the first
respondent . The City is permitted to do no more than that and, in the event of
the compliance notice being ignored, as it was in this case, the City is then
compelled to take one or more further steps provided for therein before any
sanction can be imposed.
The City’s enforcement options
267. The various options can be taken individually or as a combination (‘one or
more’) or in any sequence.
268. One option is the imposition of administrative penalties , when someone in the
position of the first respondent accepts that they have indeed contravened the
provisions of the By -Law. As explained in detail above, when an owner wishes
to rectify the contravention, the owner m ust, as a first step, apply for the
determination of an administrative penalty in terms of section 129 of the By -
Law before it can move on to the rectification of the contravention(s) in terms
of section 130, read with section 42 . Section 129 normally finds application
when an owner accepts that it has contravened the By -Law and seeks to
rectify the contravention. In this event, the contravention is admitted and the
City plays no role in that admission (and, if the owner wishes to do so, the
contravention can be sought to be rectified in terms of section 130, read with
section 42 , but only after the administrative penalty has been paid ). In such a
case, the matter is referred to the Municipal Planning Tribunal, which will
make a ruling in terms of the penalty to be paid, after the tribunal has invited
the owner to make written representations (which the tribunal must do, in
terms of sectio n 129(4) ) and, if necessary, call ed for additional information , in
terms of section 129(6)(a) . In such a case, the opportunity to provide written
representations and further information , if called for, gives effect to an owner’s
right to audi alteram partem .
269. However, where there is no such admission of a contravention , the City is
obliged to seek enforcement through one of the other mechanisms provided
for in the By -Law. These mechanisms include both civil and criminal
proceedings. Section 126(2)(g) of the By -Law provides that the City may take
one or more of the following measures:
269.1. Withdraw a prior approval (section 127) .
269.2. Issue a directive (section128) .
269.3. Apply for an administrative penalty (section 129 and 130)
269.4. Apply to a competent court for appropriate relief (section 131
and132) .
269.5. Institute criminal prosecution (section 133).
270. Each of those measures, in turn, makes provision for representations or
submissions to be made before a decision affecting an individual’s rights is
taken by the City, namely:
57.1. Section 127(1)(b) requires the City to invite the owner to make written
representations before it may act in terms of that section , thus
complying with audi.
57.2. Section 128(1)(b) similarl y requires the City to invite an owner to make
written representations before it may act in terms of that section which ,
the City submit s, disposes of the Constitutional challenge against
section 128 . I agree.
57.3. Sections 129 and 130 provide for the owner himself to make application
for an administrative penalty where the contravention is admitted by the
owner. The City cannot be expected to give such an owner an
opportunity to make prior representations about his/ her/its guilt when
such acknowledgment is made by the owner. The section 129 and 130
processes themselves do, however, contain opportunities to make
written representations as a part of that process in terms of sections
129(4) and (6)(a), as referred to ab ove. These representations,
however, pertain to the penalty to be imposed given that the
contravention is already admitted when the application is submitted .
57.4. Sections 131 and 132 entitle the City to approach the High Court for
appropriate relief. Inherent in that process is the right of the owner to
defend any proceedings launched by the City and thus exercise their
rights to audi alteram partem . Those sections have not been impugned.
271. The first respondent is therefore incorrect when he asserts that the imp ugned
provisions allow for a finding of guilt against him without due process being
followed.
272. The enforcement provisions of the By -Law are preceded by an investigation
during which the City does not act as a determinative body , as per Brenco ,
Norvartis and Simelane above .
273. Once the investigation is completed, the first respondent was informed of its
outcome and he then had an election as to which steps to take from that point.
274. In several respects , the first respondent , acting under legal advice,
acknowledged his wrongd oing and made application for administrative
penalties , as dealt with above .
The validity of legislation is fact -independent and objective
275. The correct approach to legislative interpretation is trite. The method of
interpreting statutes is settled. In Minister of Water and Sanitation and Others
v Lötter NO and Two Similar Cases 2023 (4) SA 434 (CC) it was held as
follows at para graph 19):
“In Cool Ideas Majiedt AJ held that words of a statute “must be given
their ordinary grammatical meaning, unless to do so would result in an
absurdity”. Three riders to this are that: the provisions must be
interpreted purposively; the provisions must be co ntextualised; and
statutes must, as far as is reasonably possible, be interpreted in
conformity with the Constitution .”
276. When a court is called upon to assess the constitutionality of a legislative
provision, it carries out an objective exercise (Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at
paragraph 26, independent of the subjective circumstances of a litigant
(Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC) at para graph
25).
277. The City contends that the constitutional challenge is premised on the first
respondent’s incorrect interpretation of the City’s processes. It also contends
that it is premised on the assertion that, because the first respondent did not
understand that in maki ng application for an administrative penalty, he was
admitting guilt. I agree with both of these contentions.
278. The fact that the first respondent may not have understood that in making
application for an administrative penalty, he was admitting his guilt, is
subjective circumstance which cannot render the By -Law unconstitutional.
279. The wording of the By -Law is clear and unambiguous. It sets out the steps
available to the City in the event of contraventions of the By -Law, and it sets
out the steps available to an individual in the position of the first respondent .
280. As dealt with above, i n respect of each step where the City acts as a
determinative body, provision is made for audi alteram partem .
281. In my view, therefore, t here is no basis for the constitutional challenge.
282. The counter application for review and constitutional challenge would
therefore also fall to be dismissed on this basis .
Costs
(a) The costs of the main application
283. The main application has been successful (the variations of the relief sought
which are dealt with below do not have any material effect on this) and there
is no reason that costs should not follow that result. The costs of the main
application will therefore be ordered in favour of the City.
284. The matter also warranted the employment of two counsel.
285. The City requested costs on the scale as between attorney and client.
286. In In re Alluvial Creek Ltd 1929 CPD 532 it was held as follows at 535:
“Now sometimes such an order is given because of something in the
condu ct of a party which the Court considers should be punished,
malice, misleading the Court and things like that, but I think the order
may also be granted without any reflection upon the party where the
proceedings are vexatious, and by vexatious I mean wher e they have
the effect of being vexatious, although the intent may not have been
that they should be vexatious . There are people who enter into
litigation with the most upright purpose and a most firm belief in the
justice of their cause, and yet whose proceedings may be regarded as
vexatious when they put the other side to unnecessary trouble and
expense which the other side ought not to bear .”
[emphasis added]
287. This has been upheld and applied in many cases, including in this division in
Absa Bank Lim ited v S J Du Toit 1995 (3) SA 265 (C) at 268BE and Peninsula
Eye Clinic (Pty) Ltd v Newlands Surgical Clinic and Others 2014 (1) SA 381
(WCC) at paragraph 61 and in the SCA in Claase v Information Officer, South
African Airways (Pty) Ltd 2007 (5) SA 469 (SCA) at paragraph 11 and Boost
Sports Africa (Pty) Ltd v The South African Breweries (Pty) Ltd 2015 (5) SA
28 (SCA) at paragraph 27.
288. No defence was disclosed at all to the myriad contraventions identified in the
main application , as discussed a bove . The opposition to the main application
was therefore devoid of any prospect of success whatsoever. The City was
put to unnecessary trouble and expense in having to bring the Main
application . In this sense , as contemplated in Alluvial Creek , the opposition to
the main application was vexatious .
289. In the result , I am satisfied that an award of the costs thereof against the first
respondent on the attorney client scale would be appropriate in the exercise of
the court’s discretion.
The costs of the counter -application
290. A judicial review (Harrielall v University of KwaZulu -Natal 2018 (1) BCLR 12
(CC) at paragraphs 11, 17 and 18 ) and a constitutional challenge attract the
application of the Biowatch rule (Biowatch Trust v Registrar Genetic
Resources and Others 2009 (6) SA 232 (CC) at paragraph 28). That rule is
that the court will not order costs against litigants who seek to enforce their
constitutional righ ts, “The underlying principle [being] to prevent the chilling
effect that adverse costs orders might have on litigants seeking to assert
constitutional rights. ” (Harrielall at paragraph 11 ).
291. The Constitutional Court has qualified this rule, holding, for example, in
Harrielall at paragraphs 12 to 14 as follows:
“[12] However, the rule is not a licence for litigants to institute frivolous
or vexatious proceedings against the State. The operation of its shield
is restricted to genuine constitutional matters . Even then, if a litigant is
guilty of unacceptable behav iour in relation to how litigation is
conducted, it may be ordered to pay costs. This means that there are
exceptions to the rule which justify a departure from it. In Affordable
Medicines this Court laid down exceptions to the rule. Ngcobo J said:
“There may be circumstances that justify departure from this rule
such as where the litigation is frivolous or vexatious. There may be
conduct on the part of the litigant that deserves censure by the
Court which may influence the Court to order an unsuccessfu l
litigant to pay costs.”
This Court takes active cognisance of these limitations on
the Biowatch principle, which it recently applied in Lawyers for Human
Rights [v Minister of Home Affairs 2017 (5) SA 480 (CC) ].
[13] In yet another Lawyers for Human Right [v Minister in the
Presidency 2017 (1) SA 645 (CC) ], this Court defined the exceptions
to the Biowatch rule. It stated:
“What is “vexatious”? In Bisset the Court said this was litigation
that was “frivolous, improper, instituted without sufficient ground , to
serve solely as an annoyance to the defendant” And a frivolous
complaint? That is one with no serious purpose or value.
Vexatious litigation is initiated without probable cause by one who
is not acting in good faith and is doing so for the purpose of
annoying or embarrassing an opponent. Legal action that is not
likely to lead to any procedural result is vexatious .”
292. In Bo-Kaap Civic and Ratepayers Association and Others v City of Cape
Town and Others [2020] 2 All SA 330 (SCA) it was held as follows at
paragraph 84 :
“For the Biowatch principle to apply the case should raise genuine,
substantive, constitutional considerations. The rule does not mean
risk-free asserted constitutional litigation. ”
293. What can be distilled from the aforegoing for present purposes is the
following:
293.1. Biowatch is restricted to genuine constitutional matters .
293.2. It does not apply to litigation instituted without sufficient ground , or
with no serious purpose or value or without probable cause or that is
not likely to lead to any procedural result .
294. I think that both of the above factors apply in the instant matter. In addition, i n
my view, t he counter -application was instituted to protect the first respondent’s
business (note his statements quoted above as to the (plainly unlawful)
business conducted by him at th e Properties ) and not to raise genuine
constitutional concerns. At the crudest level, relief in respect of a constitutional
challenge was not even formulated in the notice of counter -application. It was
also devoid of any prospect of success whatsoever.
295. In my view therefore, the instant matter is an exception to the application of
Biowatch .
296. The first respondent will therefore pay the costs of the counter -application. As
to the scale of costs, I think that the considerations in the above section are
equally applicable and the attorney client scale will apply .
297. The matter also warranted the employment of two counsel.
298. In the result, I am satisfied that an award of the costs of the counter
application against the first respondent on the attorney client scale would be
appropriate in the exercise of the court’s discretion.
299. Costs stood over on 20 February 2024, 20 August 2024 and 19 February 2025.
I see no reason why those should not follow the result .
Order
300. As mentioned above, I interrogated and scrutinised in depth with Ms
O’Sullivan the relief sought in the notice of motion in the main application and
identified certain features which I considered to require variation , which are
reflected in the order below, including :
300.1. Certain time periods for further possible action by the first
respondent w ere extended.
300.2. The direction against the first respondent would apply should he
wish to attempt regularise the contraventions identified above and in
paragraph 1 to 3 of the order below. This is because I considered
that he was not obliged to do so , having another option , nam ely to
decide to abandon the irregularities (in which event he should not be
compelled by order of court under pain of contempt to regularise
them , but must remove them ). In that event, and also in the event
that he does nothing or does not fully and timeously comply with any
item in paragraphs 3 and 4 of the order below , the City would then
be entitled to take the steps in paragraph 6 of the order below .
300.3. To be clear, as soon as any one (or more) of the items in paragraphs
4 and 5 of the order below is not complied with timeously and in full,
irrespective of whether the first respondent intends to attempt to
regularise or not, the City will be entitled to set the matter down for
the enforcement relief in paragraph 6 of the order be low.
300.4. The order in respect of access was limited to the Properties
(paragraph 9 of the order below) .
300.5. The relief in respect of the City being entitled to bring contempt
proceedings on 5 days’ notice was deleted. Ms O’Sullivan agreed to
this. I considered that the City has the right to bring such
proceedings, while the notice period depends on the facts and
exigencies at play at the time and that it would not be appropriate for
this judgment to be seen to be prescribing any such period to the
court which would be faced with such proceedings .
301. In the result, it is ordered as follows:
1. It is declared that t he additions and alterations at erf 8 […] Milnerton,
situated at 1 […] Erica Way, Milnerton , Cape Town (“the Erica Property”),
which are identified and labelled in Annexures “A” and “B” to this Order,
and for which no building plan approval has been granted by the
Applicant (or “the City”) in terms of the National Building Regulations
and Building Standards Act, 103 of 1977 (“the Building Act ”), are
unlawful .
2. It is declared that t he additions and alterations at erf 3 […]2 Milnerton,
situated at […] Ceres Road, Milner ton, Cape Town (“the Ceres
Property”), which are identified and labelled in Annexure “C” to this order,
and for which no building plan approval has been granted by the City in
terms of the Building Act or in terms of the City of Cape Town Municipal
Plannin g By-Law (“the By -Law”), are unlawful .
3. It is declared that t he additions and alterations at erf 2 […] Milnerton,
situated at […] Heather Road, Milnerton , Cape Town (“the Heather
Property”), which are identified and labelled in Annexure “D” to this order,
and for which no building plan approval has been granted by the City in
terms of the Building Act or in terms of the By -law, are unlawful .
4. Should t he First Respondent wish to attempt to regularise the illegalities
identified in paragraphs 1 to 3 above, he is ordered and directed to:
4.1. Submit application (s) for the imposition of an administrative penalty
in terms of section 129 and 130 of the By -Law in respect of all the
additions and alterations on the three properties referred to in
paragraphs 1 to 3 above which he wishes to attempt to regularise , to
the A pplicant for its consideration, within 60 calendar days of the
granting of this order .
4.2. Submit any further information requested by the City in respect of
the administrative penalty application (s) referred to in paragraph 4.1
above within 20 days in terms of s 75(1) of the By -Law.
4.3. Pay the administrative penalty /penalties to the City within 30
calendar days of its /their determination or within such further period
as the Municipal Planning Tribunal m ay decide in terms of section
129(9)(c) of the By -Law.
4.4. Submit the necessary applications in respect of those applications
listed in section 42 of the By -Law required in respect of all the
additions and alterations on the above properties referred to in
paragraphs 1 to 3 above to the City for the latter's consideration,
within 60 calendar days of the granting of this order .
4.5. Submit any further information requested by the City in respect of
the applications referred to above in this paragraph 4 within 20
calendar days above within 20 days in terms of s 75(1) of the By -
Law.
4.6. Submit the necessary building plans to the City within 60 calendar
days of the approval of any applications in terms of section 42 of the
By-Law (referred to in paragraph 4.4 above ) in the event that the
applications referred to above in this paragraph are approved .
4.7. Submit any further information requested by the City in respect of
the buildi ng plan application (s) within 30 calendar days .
4.8. Ensure that the buildings on the applicable propert ies are altered to
comply with any further building plan approval, if obtained from the
City, within 90 calendar days of such approval.
5. Should t he First Respondent wish to attempt to obtain approval for any or
all of the additions and alterations for which no approval has been
obtained under the By -Law on erf 3[…] Milnerton, situated at 1 […] Algoa
Road, Milnerton , Cape Town (“the Algoa Property”) , he is ordered and
directed to:
5.1. Submit an application for the imposition of an administrative penalty
in terms of section 129 and 130 of the By -Law in respect of all the
additions and alterations on the Algoa Property, for which no
approval has been obtained under the By -Law, which he wishes to
attempt to regularise , to the Applicant for its consideration, within 60
calendar days of the granting of this order.
5.2. Submit any further information requested by the City in respect of
the administrative penalty application referred to in paragraph 5.1
above within 20 calendar days in terms of s 75(1) of the By -Law.
5.3. Pay the administrative penalty to the City within 30 calendar days of
its determination or within such further period as the Municipal
Planning Tribunal may decide in terms of section 129(9)(c) of the
By-Law.
5.4. Submit the necessary applications in respect of those a pplications
listed in section 42 of the By -Law required in respect of all the
additions and alterations on the Algoa Property to the City for the
latter's consideration, within 60 calendar days of the granting of this
order .
5.5. Submit any further information requested by the City in respect of
the applications referred to in this paragraph within 20 calendar
days.
5.6. Submit the necessary building plans to the City within 60 calendar
days of the approval of any applications in terms of section 42 of the
By-Law (referred to in paragraph 5.4 above) in the event that the
applications referred to above in this paragraph are approved .
5.7. Submit any further information requested by the City in respect of
the buildi ng plan application within 30 calendar days.
5.8. Obtain approval and/or confirmation in respect of what is described
by the F irst Respondent as an “existing second dwelling” within 30
calendar days of an order being granted in terms of item 25A of the
Developm ent Management Scheme (“DMS”) .
5.9. Ensur e that the buildings on the property are altered to comply with
any further building plan approval, if obtained from the City, within 90
calendar days of such approval.
6. In the event of the First Respondent failing to comply timeously and in full
with any of the requirements of paragraphs 4 and 5 above (non-
compliance with the first step alone or any other single or more steps will
suffice) or failing to remove the irregularities identified in paragraphs 1
to 3 above and failing to restore the applicable properties to be in
compliance with the approved plans in respect thereof by the time of
the deadline set for the first step (or any other subsequent step if prior
steps have been complied with timeously and in full) in paragraphs 4
and 5 above , alternatively in the event , and to the extent, of the City
refusing any land use applications and/or the building plan submissions
in respect of any of the above four properties (“the Properties”) , granting
the City leave to apply on these papers, supplemented insofar as may be
necessary, for an order incorporating:
6.1. Declarators and interdicts concerning the use of the applicable
Propert ies.
6.2. An order directing the First Respondent to restore the internal
configuration of the applicable Properties in accordance with the last
approved building plan for each of the applicable Propert ies within
90 calendar days of the granting of any further order, failing which :
6.2.1. The First Respondent is directed to demolish, within 60
calendar days of the granting of any further order, any and all
structures and internal configurations which are not approved
by the City; and
6.2.2. Any eviction related relief, insofar as this may be necessary.
7. To be clear, as soon as any one (or more) of the items in paragraphs 4
and 5 of this order is not complied with timeously and in full,
irrespective of whether the first respondent intends to attempt to
regularise or not, the City will be entitled to set the matter down for the
enforcement relief in the above paragraph 6 of th is order.
8. The First Respondent (whether directly o r through any person and/or
entity under the control of or on behalf of the First Respondent ), is
interdicted and restrained from commencing building works at any of the
Properties, or at any o ther property/ies which the First Respondent or
any entity under his control may acquire in future, prior to the approval of
such building works under the Building Act, the By -Law and the DMS ,
and from contravening the Building Act, the By -Law and the DMS in
future in this respect .
9. The First Respondent is directed to grant officials of the City access to
the Properties for purposes of inspection in order to ensure compliance
with this Order .
10. The First Respondent is to pay the costs of the main application ,
including the costs which stood over on 20 February 2024, 20 August
2024 and 19 February 2025, on an attorney client scale, including the
costs of two counsel where so employed .
11. The counter -application is dismissed , with t he First Respondent (the
applicant in the counter -application ) to pay the costs of the counter -
application , including the costs which stood over on 20 February 2024,
20 August 2024 and 19 February 2025, on an attorne y-client scale,
including the costs of two counsel where so employed .
302. For the sake of convenience , I repeat the order made as follows on 25 March
2025 :
The application for postponement is refused with costs which will include
the costs of the employment of two counsel where so employed , with scale
C in terms of section 67A applying.
_________________
A Kantor
Acting Judge of the High Court
Applicant’s legal representative s:
Counsel: Ms M O’Sullivan and Ms S Hendricks
Attorney: Ms D Olivier of Fairbridges Wertheim Bekker
First Respondent’s legal representatives: Mr Sharuh of Sharuh Attorneys
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case no: 22715/2023
In the matter between:
THE CITY OF CAPE TOWN Applicant
and
JAN PAUL MICHELS First Respondent
ABSA HOME LOANS GUARANTEE
COMPANY (RF) (PTY) LTD Second Respondent
NEDBANK LIMITED Third Respondent
SB GUARANTEE COMPANY (RF) (PTY) LTD Fourth Respondent
FIRSTRAND MORTGAGE COMPANY (RF) (PTY) LTD Fifth Responde nt
___________________________________________________________________
Matter was heard on: 25 March 2025
Judgment delivered on: 28 March 202 5
APPEARANCES:
Counsel for the Applicant: Adv Michelle O’Sullivan SC & Ad v S Hendricks
michelleos@capebar.co.za
Attorneys for the Applicant: Fairbridges Werthein Bekker
For Respondents: Mr Paul Sharuh
secretary1@sharuhlaw.co.za ;
admin@sharuhlaw.co.za ;
info@sharuhlaw.co.za ;
paul@sharuhlaw.co.za
Attorneys for Respondents: Sharuh Attorneys