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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)
Case No: 421/25
In the matter between
THANAPAL PILLAY APPLICANT
AND
THE WHALE ROCK HEIGHTS HOMEOWNERS 1st RESPONDENT
ASSOCIATION
DEON STEENKAMP 2 nd
RESPONDENT
BITOU MUNICIPALITY 3 RD
RESPONDENT
Date of Hearing : 12 September 2025
Date of Delivering : 09 October 2025
__________________________________________________________________
JUDGMENT
__________________________________________________________________
THULARE J
2
ORDER
(a) The applicant’s non-compliance with the Uniform Rules of Court in respect
of time periods and fo rm, are condoned and the application is heard as one
of urgency.
(b) The 1 st respondent’s approvals of the building plans in respect of the 2 nd
respondents building plans on erf 8[...] within the Estate , and the 1 st
respondents’ decision to condone departures from the 1 st applicant’s
Architectural Controls in respect of t he buildings on that erf 8[...] , are
reviewed and set aside.
(c) The matter is remitted back to the 1 st respondent to consider the 2 nd
respondents building plans, and decide thereon, having regard to the alleged
adverse impact on the Estate, neighbouring buildings and the 1 st applicant’s
members as well as the 1st applicant’s architectural controls
(d) The 2nd respondent is interdicted and restrained, pending the 1st respondent’s
consideration of his building plans and the 1st respondent’s decision thereon,
having regard to the alleged adverse impact on the Estate , neighbouring
buildings and the 1 st applicant’s members as well as the 1 st applicant’s
architectural controls, from continuing building operations on erf 8[...] in the
Estate.
(e) The 2 nd respondent shall file the record of the decision of the General
Meeting of the 1 st respondent’s members on his building plans in respect of
erf 9[…] in the Estate, within 10 days of such decision.
(f) The 2 nd respondent shall pay the costs of this application, including the
qualifying costs of the experts Friedman and Neufield, as well as the costs of
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Senior Counsel on Scale C , and the costs of appointing correspondent
attorneys to assist with the file pagination in George.
[1] This is an urgent opposed application for the review and setting aside of the
approval by the 1st respondent of the 2nd respondents building plan in respect of the
building currently being erected on Erf 8[...] . Whale Rock Heights Private Estate,
Plettenberg Bay as well as the approval by the 3rd respondent of such building plan.
The 1 st respondent did not oppose the relief sought against it. The applicant
abandoned the relief sought against the 3 rd respondent. The 3 rd respondent also
filed a notice to abide by the decision of the court. Only the 2nd respondent opposed
the relief sought by the applicant. The 2nd respondent’s opposition to urgency is
somewhat conflicted, in that he opines that he wished to finish his intended family
home so that he and his family can move into it, and w ished to expeditiously
complete the building, but in the same breath submitted that there was no urgency .
I accept that the matter is urgent.
[2] The applicant is a homeowner in the Estate and the 2
nd respondent is the owner
of an erf in the Estate , on which a house is under construction and nearing
completion. The applicant and the 2nd respondent (the parties) are both members of
the 1st respondent. Their properties are on the opposite side of the road from each
other. The 1 st respondent ha s a Constitution, Architectural Guidelines and Rules,
Conduct Rules, Building Regulations and Building Control Plans. The applicant’s
case was that the 1st respondent could only approve the 2 nd respondents plans that
complied with these instruments. This is clear amongst others from clauses 4 and 5
of its notice of motion, which sought interdicting and restraining, as well as re-
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submission of compliant plans, based on this alleged non-compliance. The 2 nd
respondents case was that the approvals by the 1st respondent (the Association) and
by the 3 rd respondent (the Municipality) were based on two separate regulatory
regimes and could co- exist independently of each other, and that only the
Municipality’s approval, which also consisted of two separate aspects, to wit
planning and building, entitled him to erect a structure on his property [para 129.2
of his answering affidavit]. The 2nd respondent also particularly denied that he was
building a house in contravention of any regulatory framework, whether that of the
Association or the Municipality.
[3] According to the applicant, 2 nd respondent had said under oath that he and his
architect at the time that the final building plans were drawn , did not consider the
17.5 degrees requirement as important , and that 2 nd respondent accepted the
calculation of the architect that the slope of the roof was only 10 degrees. In the
papers before me, the 2 nd respondent denied that the 17.5- degree roof requirement
was peremptory. His case was that he was building in accordance with plans which
had been approved by the municipality. The 2 nd respondent submitted an
application to the 1 st respondent for him to complete construction in accordance
with what had already been agreed to and approved but for the roof structure which
would be revised to conform to the desired 17.5- degree pitch and to deliver an as
built plan to the 1 st respondent by 13 June 2025. On 30 May 2025 the 1 st
respondent’s trustees considered the 2 nd respondents request and passed a
resolution. It resolved that the trustees of the 1 st respondent granted permission to
the 2nd respondent in terms of Rule 6.4 to complete the construction of the roof of
his house on the undertaking that the 2 nd respondent will then submit as built plans
to the 1 st respondent through normal channels by Friday 13 June 2025. Upon
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acquiring legal advi ce after receiving communication from applicant’s attorneys,
the 1 st respondent advised the applicant that the 1 st respondent would request an
undertaking from the 2nd respondent that he will halt construction of the roof of his
house and not proceed with construction unless he was in possession of approved
building plans. The 2nd respondent denied that the trustees’ resolution of 30 M ay
2025 was unlawful and averred that he was entitled to place reasonable reliance
thereon. The salient contents of the letter from the attorneys of the applicant to the
1st respondent’s attorneys read as follows:
15. For the Committee now, given this history , to approve an application without knowing
whether or not the Architectural Guidelines (and even the plans) are being complied with, and
committing itself to deal with such deviations as may later be discovered, in accordance with the
Constitution, not knowing whether it will have the authority to do so, is clearly, apart from all its
other shortcomings, ultra vires the Committee.
16. This letter therefore serves to demand, as we hereby do, an undertaking that Mr Steenkamp
will be instructed forthwith to cease building operations and to submit new plans which comply
with the Architectural Guidelines.
The 2nd respondents’ approach was that in alleging that his first plan was incapable
of approval because of its failure to adhere strictly to various aspects of the
Guidelines, the applicant was and continued to dispute the 1 st respondent’s
interpretation of the Architectural Guidelines. According to the 2 nd respondent, the
dispute that arose with regard to the interpretation of the Guidelines was to be
determined by the Trustees after consultation with the Estate Architect and where
appropriate in the opinion of the Trustees, such other architect as may be
nominated by them, and in terms of Conduct Rule 6.4 a determination by the
Trustees will be final and binding . The 2 nd respondent case was that the 1 st
Trustees will be final and binding . The 2 nd respondent case was that the 1 st
respondent’s interpretation of the Guidelines was guided by the estate architect.
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[4] The 2nd respondent did not inform applicant of the submission of the last and
third plan that 2 nd respondent submitted to the 1st and 3 rd respondents. This was
because 2nd respondent held the view that the plan did not contain any
controversial features which would need to be advertised for neighbour comm ent
either in terms of the 1 st respondent’s regulatory framework or in terms of that of
the 3 rd respondent. The 2 nd respondent had previously submitted a second plan,
which included an application for a departure from the street building line for a
feature stone wall at the house entrance. Th ere had been objections to the plan, but
the plan had been approved by the 1 st respondent subject to a height restriction.
When there were objections thereto, 2 nd respondent withdrew his second plan on
26 June 2025 and according to him revised it to remove all causes for complaint
before submitting it as the third plan. The correspondence which had been shared
with 2 nd respondent made it clear that he would face significant delays if he
persisted with his intention to obtain approval for non- conforming features, which
led to his withdrawal of the second plan. The 2 nd respondent submitted his third
plan on 2 July 2025 for approval. The 2nd respondents’ case was that there was no
provision in the 1 st respondent’s governance framework for neighbour comment
and, where building plans did not require any special approvals such as a departure
approval, a municipality would also not invite comment. He had ensured that his
plan did not need any neighbour input and did not expect that either the 1 st or 3rd
respondent would inform his ne ighbours that he had submitted the plan for
approval.
[5] As a consequence of being in possession of the approved third plan, approved
by both the 1st and 3rd respondents, 2nd respondent proceeded to try to complete the
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roof of his house from 23 July 2025. There were no material changes to the
neighbours complaints about the alleged non- compliance with the site plan
involving the height above natural ground level and the wall plate. 2nd respondent
only attended to the complaint about the non- conforming wall and adjusted the
pitch of the complained about roof to the desired 17.5 -degree pitch. The third plan
did not indicate a departure. 2nd respondent denied that the third plan deviated from
the Building Control Plan 60 (DS64) in a manner that would require a departure
application. The applicant’s complaint was that the 2 nd respondents ground floor
should be on the 105m contour and that the height of the roof plate should be at the
108m contour. This left 2m for the design of a pitched roof. These were important
parameters which 2 nd respondent had disregarded. The underside of the wall plate
was given as 109.60m whereas the control plan showed the wall plate level to be at
108m contour, which was a significant differe nce of at least 1.5m in height. The
building had a ground floor at 106m which was a substantial difference. The case
of 2nd respondent was that his third plan did not contain any non- conforming
features and thus no departure application was required before approval.
The Governance Framework or Architectural Controls of the 1st respondent
(a) The Constitution of the 1st respondent
[6] The parties agree on the instruments that govern the erection of buildings on the
Estate, as well as the responsibilities and rights of the 1st and 2nd respondent as well
as the applicant. They differ on the interpretation of the instruments and more
specifically as to whether there was compliance with the instruments, as well as the
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conduct of each in relation to their responsibilities and rights to each other and in
relation to the 1 st respondent. It is the responsibility of the Trustees to enforce the
Architectural Guidelines of and on behalf of the 1 st respondent [section 9.1 of the
Constitution of the 1 st respondent]. The Architectural Guidelines and Building
Regulations are applicable to building works in the Estate and were in addition to
the requirements of the 3 rd respondent for a particular erf [section 9.2 of the
Constitution]. It was the duty of every owner , including the 2 nd respondent, to
ensure that any building work must also always comply with the Architectural
Guidelines and Building Regulations of the 1 st respondent [section 9.3 of the
Constitution]. To enforce the Architectural Guidelines the Trustees had the power
to interpret and to issue directives on the Design Guidelines [section 9.4.1], to take
such actions as were necessary to accomplish the purposes of the Architectural
Guidelines which actions included the refusal of building plans [section 9.4.2], to
compel members to comply with the requirements and directives and failing
compliance to take steps to remedy such non- compliance [section 9.4.3] and to
appoint professional advisors e.g, an architect to scrutinize the plans to ensure that
the necessary architectural controls have been met [section 9.4.4]. The functions
and powers of the Trustees included that it was entitled and obliged, on behalf of
the 1 st respondent, to make, amend and enforce Rules and Building Regulations
and to issue directives on behalf of the 1st respondent [section 11.1.3].
(b) The Architectural Guidelines and Rules of the 1st respondent
[7] The next instrument is the Architectural Guidelines and Rules of the 1 st
respondent. Section 1.2.1.2 under Guidelines, Architectural Style, reads:
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1.2. ARCHITECTURAL STYLE
1.2.1 GUIDELINES
1.2.1.2 Roofs comprising of % pitch and up to a maximum of ½ flat will be allowed. A minimum
pitch of seventeen and a half degrees will be allowed.
Section 1.13 deals with the height restrictions and building lines for portion 1 to
82. It reads:
1.13 HEIGHT RESTRICTION AND BUILDING LINES FOR PORTION 1 TO 82 (STAND
NOS 8575 TO 8654)
1.13.1. Refer to Site Analysis Building Control Plan for each particular stand as referred to above
for:
1.13.1.1. The number of storeys (mostly ground and first)
1.13.1.2. Footprint indicating position of area that may only be single storey and footprint
indicating position that may be double storey.
1.13.1.3. Building lines
1.13.1.4. Section through erf
1.13.1.5. Height restriction to ridge of highest roof in m above mean sea level
1.13.1.6. Preferred building lower platform height in m above mean sea level
1.13.1.7. During construction owners will provide the Association with land surveyors
certificates confirming that ALL slab levels and the ridge height of the highest roof meet the
requirements of 1.13.1.5. and 1.13.1.6. The cost of such certificates will be for the owners’
account (see also clause 3 below).
These Guidelines are applicable to all building work conducted by and on behalf of
an owner on an erf in the Estate [section 4.6]. Remarks made by the Estate
Architect and conditions or directions imposed by the trustees when a sketch or
building plan is approved must be addressed and complied with [section 4.6]. The
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approval of the design by the trustees is in general terms and is subject to approval
by the 3 rd respondent [section 5.2.1. 9]. The Estate Architect will approve or
comment on the plan submission within two weeks and a scrutiny fee per
submission shall be payable to the Architect appointed by the 1 st respondent before
aesthetic approval of the drawings [section 6.2].
(c) Site Analysis: Building Control Plan of the 2nd respondents stand
[8] The provisions of the Site Analysis Building Control Plan for the 2 nd
respondents intended building are not in dispute. It provides the preferred building
with a lower platform height at 102.5m above mean sea level, the upper ground
floor at 106.0m, the ceiling or wall plate level at 108.0m and the height restriction
to ridge of highest roof at 110.0m above mean sea level.
(d) Conduct Rules of the 1st respondent
[9] The next instrument for consideration is the Conduct Rules of the 1 st
respondent. The Conduct Rules are binding on all occupants of the Estate as is any
decision taken by the Trustees in their interpretation [section 1.2]. Section 1.4
observes that harmonious community living is achieved when residents use and
enjoy their private property as well as the common areas and amenities of the
Estate whilst being generally considerate to all occupants of the Estate. The
relevant provisions of section 6 provide:
6. BUILDING AND MAINTENANCE OF BUILDINGS
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6.1 The provisions of the Constitution and Architectural Guidelines and Building Regulations
relating to the construction of buildings and structures in the Estate shall be strictly complied
with.
6.2 No building or structure may be erected, altered or added to in the Estate unless the plan
submission and requirements as per the Architectural Guidelines and Building Regulations have
been met and the plans, specifications and construction thereof comply with the Architectural
Guidelines and Building Regulations.
6.3 The trustees assisted by the Estate Architect, may approve applications for a waiver of a
minor nature from the Architectural Guidelines and Building Regulations, whereas those
considered by the Trustees to be of a major nature must be referred to a General Meeting of the
Association.
6.4 If the Architectural Guidelines and Building Regulations are vague and/or incomplete in any
respect and/or if any dispute arises with regard to the interpretation of the Architectural
Guidelines, the matter shall be determined by the Trustees after consultation with the Estate
Architect and where appropriate in the opinion of the Trustees, such other Architect as may be
nominated by them. The determination of the Trustees will be final and binding.
Section 13 provides for the internal di spute resolution mechanism on the
interpretation and the enforcement of the rules. Section 13.1 provides that the
whole of Rule 13 must be read together with clause 21 of the Constitution, which
also provides for internal dispute resolution mechanisms or processes. The Trustees
did not use their dis cretion to deal with the applicant’s complaints, as well as the
other homeowners who also complained about the 2 nd respondents construction of
his dwelling, in terms of the internal processes at their disposal.
(e) Building Regulations of 1st respondent
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[10] The other instrument is the 1 st respondents Building Regulations. In its cover
there is a note which provides that the Building Regulations must be read together
with the Architectural Regulations and the Conduct Rules. The Building
Regulations must be read together with clause 9 of the Constitution and the
Architectural Guidelines [section 1.1]. In respect of the development or
redevelopment of an erf or addition or alteration, the approval of the Trustees is
required before a building plan may be submitted to the 3 rd respondent for its
consideration. Section 7 deals with height restrictions . The applicable provisions
read as follows:
7 HEIGHT RESTRICTIONS
7.1 The height restriction of buildings in the Whale Rock Heights Private Estate will be in
accordance with the applicable Zoning Scheme and indicated on approved building plans.
7.2 Should a building or roof thereof encroach above the applicable height restriction, owners are
forewarned that they will be required to demolish such part or parts of the building and roof that
encroach above the height restriction and no application to deviate from the height restriction
requirements will be entertained by either the Trustees or the Association in a General Meeting.
To avoid encroachment of a building above the height restriction it is strongly recommended that
owners in all instances and not only where this is required in terms of the Architectural
Guidelines, employ the services of a professional land surveyor to confirm concrete slab heights
as building progresses, to ensure that it correlates with approved building plans.
Interpretation and application of the Governance Framework of the 1st respondent
on the 2nd respondents building
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[11] In Chapman’ s Bay Estate Home Owners’ Association v Lötter and Others
(525/2023) [2024] ZASCA 153 (12 November 2024) at para 17 the following was
said as regards interpretation of documents:
[17] In Lötter N O and Others v Minister of Water and Sanitation and Others
(Lötter) [[2021] ZASCA 159; [2022] 1 All SA 98 (SCA); 2022 (1) SA 392 (SCA)
para 43.] this Court said:
‘The correct approach to the interpretation of written documents, be they statutes or contracts,
was set out authoritatively by this Court in Natal Joint Municipal Pension Fund v Endumeni
Municipality. Essentially, what is required is an objective, unitary exercise that takes into account
the language used, the context in which it is used and the purpose of the document concerned.
Unterhalter AJA, in Capitec Bank Holdings Limited and Another v Coral Lagoon Investments
194 (Pty) Ltd and Others, added the following:
“I would only add that the triad of text, context and purpose should not be used in a mechanical
fashion. It is the relationship between the words used, the concepts expressed by those words and
the place of the contested provision within the scheme of the agreement (or instrument) as a
whole that constitutes the enterprise by recourse to which a coherent and salient interpretation is
determined. As Endumeni emphasized, citing well -known cases, “[t]he inevitable point of
departure is the language of the provision itself”.’ [Emphasis added.]
[12] The enforcement of the Architectural Guidelines of and on behalf of the 1 st
respondent, by the Trustees, is peremptory , as envisaged in section 9.1 of the
Constitution of the 1 st respondent. The terminology employed indicated that the
Trustees are obliged to compel observance of or compliance with the Guidelines.
This meant that the Guidelines were not merely a piece of advice, but were general
rules or principles required to be observed in relation to building, architecture and
design in the Estate. The 2
design in the Estate. The 2
nd respondent also had a duty to ensure that any building
work on his stand must also always comply with the Architectural Guidelines and
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Building Regulations of the 1 st respondent, as envisaged in section 9.3 of the
Constitution. It is the duty of the Trustees to ensure that the necessary architectural
controls have been met, and in furtherance thereof the Constitution allows them to
appoint professional advisors e.g, an architect to scrutinize the plans and advise the
Trustee, as envisaged in section 9.4.4 of the Constitution.
[13] In the interpretation and application of the Architectural Guidelines, the Rules
and the Site Analysis: Building Control Plan , it must be understood that these
architectural controls are restrictions that regulate the design and appearance of
homes and properties deliberately designed to maintain a consistent aesthetic and
display the fostering of a unified community vision . These architectural controls
dictate the rules for design and building. Their main purpose includes to ensure that
buildings and landscapes within a community share a cohesive and pleasing look.
The architectural controls are a set of principles concerned wit h nature and
appreciation of beauty. The lifestyle in the Estate includes the enjoyment of
mountain and sea views, and the buildings must also add the artistic taste whilst
enhancing that lifestyle. The architectural controls help the Trustees to ensure that
each building on each of the stands has the particular style and appearance that the
Estate has. The architectural controls are design principles which have been
established with the intention of creating compatibility of architectural styles rather
than repetition. The buildings erected on the stands in the Estate should be in a
state in which the houses of neighbours are able to exist or occur together without
problems or conflict as envisaged in section 1.1.1 of the Architectural Guidelines
and Rules, especially as regards the enjoyment of mountain and sea views as part
of the lifestyle. The Estate used the uniqueness of context and site, which included
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the use of slopes, views and natural elements as the intended style of development
as envisaged in section 1.1.4.
[14] The Guidelines permitted architects the maximum freedom to design
expressions and used restrictions in the architectural controls to retain the benefits
of overall harmony for the entire development as envisaged in section 1.1. 6 of the
Guidelines and Rules. The architectural controls included height restrictions and
building lines which refer to Site Analysis: Building Control Plan for each stand .
Section 7 of the Building Regulations made it very clear that the height restrictions
are not only limited to the roof . It included the building. Section 7.2 commences
with the words Should a building or roof thereof encroach above the applicable
height restriction , … and closes with the sentence To avoid encroachment of a
building above the height restriction it is strongly recommended that owners in all
instances and not only where this is required in terms of the Architectural
Guidelines, employ the services of a professional land surveyor to confirm concrete
slab heights as building progresses, to ensure that it correlates with approved
building plans. There can be no doubt that the Building Regulations recommended
to the 2 nd respondent what steps he had to take to ensure that his concrete slab
heights correlated with approved building plans. The 2 nd respondent ignored this
recommendation to his own peril. Nothing in the terminology of section 7.2 of the
Building Regulations could be construed to exclude the building and only refer to
the roof, as regards the encroachment on height restrictions. The building height
restrictions of the 2 nd respondent were in the Site Analysis : Building Control Plan
for his stand.
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[15] The Conduct Rules make compliance with the Constitution, Architectural
Guidelines which incorporates the Site Analysis Building Control Plan and the
Building Regulations relating to the construction of buildings and structures in the
Estate peremptory in section 6.1. read with 6.2. None of the instruments in the
governance framework of the 1 st respondent defined the word waiver. The Concise
Oxford English Dictionary, 10th ed, revised, Oxford University Press, 2002. Edited
by Judy Pearsall (the dictionary) defines waiver as an act or instance of waiving a
right or claim and defines waive as to refrain from insisting on or applying a right
or claim. The trustees assisted by the Estate Architect may approve applications for
a waiver of a minor nature from the Architectural Guidelines and Building
Regulations, whereas those considered by the Trustees to be of a major nature must
be referred to a General Meeting of the Association. The dictionary defines minor
as having little importance, seriousness or significance. It defines major as
important, serious or significant.
[16] In a lifestyle Estate where mountain and sea views are part of the aesthetics of
buildings, the height of a metre more than the height restriction is a major
departure. It becomes more serious when it is the lower platform height , the upper
ground floor and the ceiling or wall plate level which individually are a metre more
and collectively increase the extent of the departure. This is a departure which the
Trustees could not by themselves deal with . In terms of section 6.3 of the Conduct
Rules, it was a departure that required the General Meeting of the 1 st respondent to
attend to, and not the Trustees . In the event of a dispute between the applicant and
the 2nd respondent, or the applicant and the 1 st respondent whether with or without
the 2nd respondent, it was the 1st respondent, more specifically the General Meeting
the 2nd respondent, it was the 1st respondent, more specifically the General Meeting
of the 1 st respondent and not just its Trustees, who had the power to facilitate the
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resolving of such dispute as envisaged in section 4.2.6 of the Constitution read
with sections 12 to 18.
[17] The Conduct Rules of the 1 st respondent are binding on the 2 nd respondent as
envisaged in sec tion 1.2. The 2 nd respondent cannot do as he pleases, and is duty
bound to play by the rules of the game for which he signed up in the Estate. Where
he intended to build a home and did not intend to follow the provisions of the Site
Analysis; Building Control Plan of his stand, he could not simply proceed to
construct and force his own understanding of the restrictions upon other members
of the 1 st respondent, outside the General Meeting. Neville Adler (Adler), the
professional architect, is correct that the Guidelines permit architects freedom to
adjust the lower platform level to best fit site -specific conditions and other relevant
design requirements. What Adler and the 2 nd respondent missed, is that there was
an obligation on the 2 nd respondent, if he did not follow the preferred building
lower platform , to apply for a waiver and depending on the view taken by the
Trustees on whether this was a minor or major waiver, to either deal with the
application with the assistance the estate architect or t o refer it to the General
Assembly for decision.
[18] As regards the wall plate height , Adler also admits that it is above 108.0m.
Similarly, it was incumbent upon the 2 nd respondent to apply for a waiver , and for
the Trustees to deal with such application as provided for in the Conduct Rules. It
is not compliance with the 3rd respondents municipal scheme regulations or the
Development Management Scheme of the City of Cape Town Municipality , as
regards wall plate height determination , that is in issue in this application . It is th e
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1st respondents wall plate height architectural controls that are under consideration.
It is difficult to understand how admitted deviations from the preferred building
lower platform height and the wall plate height by Adler, could lead him to
conclude that the 2 nd respondents building complies in all respects with the
architectural guidelines as well as the Building Control Plan. The Guidelines were
enabling and consider Adlers observation that ceiling height and wall plate heights
are not necessarily the same especially in more luxurious homes with different
configurations. T he Guidelines acknowledge individual designs and different
briefs, to achieve a harmonious aesthetically pleasing development character. They
allow deviations, not at will. D eviations are allowed under architectural controls
which are under aesthetic approval of the estate architect, the Trustee and if needs
be the General Meeting of the 1 st respondent. Whether it is by design or by
incidence, Adler is silent on the approach of the Guidelines to a well -known
contested architectural dispute amongst members of the 1st respondent. This raises
concerns about his impartiality in his assistance to the court. It is difficult, when
considering a professional of his experience, to conclude that after measuring the
wall-plate height and determining that it was at 108.91 metres in circumstances
where the Building C ontrol Plan of the 2 nd respondent refers to 108.0m, his
movement out of the Building Control Plan into the Bitou Municipal Scheme
Regulations to justify the difference, was innocent. These criticisms are equally
applicable to Shaun McMillan (McMillan).
Review
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[19] In Trustees for the time being of the Legacy Body Corporate v Bae Estates and
Escapes (Pty) Ltd and Another (304/2020) [2021] ZASCA 157; [2022] 1 All SA
138 (SCA); 2022 (1) SA 424 (SCA) (5 November 2021) at para 37 it was said:
[37] At common law, a person who approached a court for relief was required to have an
interest in the sense of being personally adversely affected by the wrong
alleged.[15] In Jacobs v Waks[16] this Court set out the following requirements to determine
whether an applicant has the necessary locus standi to challenge an impugned decision:(a) the
applicant for relief must have an adequate interest in the subject -matter of the litigation, in other
words, a direct interest in the relief sought; (b) such interest must (i) not be too far removed; (ii)
be actual, not abstract or academic; (iii) be current, and not a hypothetical one. The Court further
pointed out that issues of locus standi should be dealt with in a flexible and pragmatic manner,
rather than a formalistic or technical one.
At para 41 and 42 the court continued:
[41] I turn now to consider the grounds on which a decision of a private body can be
subjected to judicial review at common law. This would be the case where a decision -maker
failed to comply with the elementary principles of justice, such as for example, where the
tribunal misconceives the nature and ambit of its powers, or where it acts capriciously or mala
fide, or where its findings in the circumstances are so unfair that they cannot be explained unless
it is presumed that the tribunal acted capriciously or with mala fides.[19]
[42] In Johannesburg Consolidated Investment Co v Johannesburg Town Council ,[20] Innes
CJ observed that the grounds upon which a review may be brought under common law are
‘somewhat wider’ than those that would justify a review of judicial proceedings. It is well-
established that common law review, inter alia, applies also to cases where the decision under
established that common law review, inter alia, applies also to cases where the decision under
review is taken without a hearing having taken place. And, where the duty or power is created
not by statute but consensually as in relation to domestic tribunals.[21]
At the heart of the dispute between the parties, included is the role if any, and the
significance, of the wall plate heights in the Site Analysis: Building Control Plans.
The 2nd respondent held the view, it seems up on advice, that a departure from the
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wall plate height and the preferred lower platform height as set out in the Site
Analysis: Building Control Plans was not a deviation from the Guidelines and as a
result it was not necessary to obtain any input from the other members of the 1 st
respondent and for that reason he did not consent to have the plans circulated to the
neighbours for comment. Against the background of his knowledge of known
objections to his plans including by the applicant and other neighbours like Lynn
Ferguson and Caorline Clark, I doubt the wisdom of his dismissive approach.
Whilst one can understand the desperation of the 2 nd respondent, it is the approach
of the Architectural Review Committee (the ARC) of the 1 st respondent and its
Trustees that is shocking. Firstly, the Constitution of the 1 st respondent did not
make any provision of such structure as the ARC. It seems that the ARC included
the Estate Architect . Ordinarily, the ARC could not usurp the function of the
Trustees, and was duty bound to report its decisions to the Trustees, who could deal
with those decisions as they deemed meet. The decision upon which the 2 nd
respondent relied, as the decision of the 1 st respondent, which indicated that his
third plans conformed to all the requirements of the Design Guidelines , was made
by the ARC. This decision was approved by the Trustees. This decision was made
by the Estate Architect and the Trustees, who were at the time all aware of the
dispute between the applicant and other members of the 1 st respondent on one hand
and the 2nd respondent, the Estate A rchitect and the Trustees on the other
specifically as regards whether there was compliance with the Site Analysis:
Building Control Plan.
[20] The estate architect and the Trustees, individually and collectively, have no
function or power to bury a dissenting view of a member or members of the 1 st
respondent alive. In the circumstances like the present , where there was a live
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dispute between members on one side, and a member , the estate architect and the
Trustees on the other side, as regards the question whether there was a deviation or
not, whether minor or major , which if present would have required an application
for a waiver , such member, the estate architect and the Trustees could not be the
referee and player in the same game. It is the 1 st respondent, in the sense of the
General Assembly especially where the trustees are a party to a dispute , which had
the power to take such action as it in its sole discretion deem necessary or
expedient, which included the power to issue directives to regulate aspects
pertaining to building in the Estate as envisaged in section 4.2 read with section
4.2.5 and 4.2.5.4 of the Constitution . The rights and responsibilities vested in the
General Assembly to promote the main objective of the 1 st respondent which was
to exercise control over the Estate as envisaged in section 3.4 read with 4.1 and 11
of the Constitution. This dispute is one where the Trustees ought to have referred to
and called for a General Meeting of the Association as envisaged in section 12 of
the Constitution. It would have been helpful to the General Assembly to follow the
guidance of section 6.4 of the Conduct Rules in matters which the Trustees could
decide, to include more than just the estate architect and include other architects
and professionals who could help resolve the dispute in pursuance of the authority
provided by section 11.1.1. of the Constitution. Claire King (King) and David
Friedman (Friedman) supported by Neufield differ on whether the changes that 2nd
respondent made to the approved building plans more speci fically the Site
Analysis: Building Control Plan caused the applicant or any other member of the
1st respondent especially the neighbours to suffer reduction in value of their
property and would not obtain increase thereof. In preparation for and in attending
property and would not obtain increase thereof. In preparation for and in attending
the General Meeting, the Trustees could have asked for a Joint Statement of
Experts. The Trustees could have asked the different experts upon whose opinion
the members who were involved in the dispute relied, to hold conclave s and
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produce a joint statement showing the expert issues that they agreed on, those
which they did not agree on and the reasons they could not agree, which joint
statement would be for the benefit of the parties in the dispute , the General
Assembly and if need be later, the courts. The conclave would be a technical
meeting of professionals of like discipline and in its nature would not be
adversarial or partisan as some individual reports show.
[21] The 1 st respondent and its governance framework are based on contract
[Wiljay Investments (Pty) Ltd v Body Corporate, Bryanston Crescent 1984 2 SA
722 (T); Mount Edgecombe Country Club Estate Management Association II
RF NPC v Singh 2019 4 SA 471 (SCA) para 20 and Pienaar and Horn Sectional
Titles 516-517]. The trustees' conduct is examined in considering and taking the
resolution to determine whether the resolution was reviewable under the common
law. Failure by the 1st respondent to conceive the nature and ambit of its powers;
capricious or mala fide acts; unfair conduct; or decisions taken without a hearing or
a procedure to enable the other party to state its case are some of the principles of
justice to be considered [Trustees for the time being of the Legacy Body Corporate
para 41 to 42]. The applicant, and all other members of the 1st respondent who held
a dissenting view to that of the estate architect and trustees were not afforded an
opportunity to be heard when the 2 nd respondent’s plans were considered, all three
of them. More specifically, the applicant’s expert, Friedman, who holds a master’s
in philosophy in Housing Development and Management and has extensive
experience on matters in the built environment, was simply ignored and no reasons
were provided by the estate architect or the Trustees as to why his opinion was
ignored or rejected. The decision of the 1 st respondent on the 2nd respondents plans
had no reasons provided. Friedmans opinion was that the building plans of the 2 nd
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respondent were not only unlawful but significantly undermined the integrity of the
Estates development scheme and that in years to come owners would pay a dear
price for the aberration. Friedmans conclusion was that the house being built by the
2nd respondent by reason of its nature and appearance will disfigure the area I
which it was being erected and was unsightly and objectionable . Friedman also
concluded that the plans did not comply with the instruments of governance of the
1st respondent and he referred to the Site Analysis: Building Control Plan.
[22] Friedman indicated that the Site Analysis: Building Control Plan was designed
to limit the impact of the ridge development and soften the impact of views of the
skyline from both below and above the proposed dwellings. Importantly, Friedman
also indicated that Mr Friedman indicated how the failure to comply with the
restrictions impacted on the views of the skyline from both below and above the
proposed dwelling, the open view lines for the rear upper properties to see the
valley and have sea views. He also indicated that the lateral setback lines combined
with the adjoining erf 3m setback lines on the lateral boundaries created open view
lines for the rear upper properties to see the valley and have sea views. These are
not opinions of an experienced expert in the built environment, which can simply
be swept under the carpet by an estate architect and Trustees. If they did not agree
with Friedman, it was incumbent upon them firstly, to provide the reasons for their
decision, and secondly, to take all the members of the 1 st respondent in their
confidence and disclose all the opinions of experts, as well as their own reasons for
their decision, to the members, more especially those members who one expert
opined may have their views impacted. The disfigurement of the Estate, the
consequence of the Estate being unsightly and the derogation from the value of
consequence of the Estate being unsightly and the derogation from the value of
adjoining properties was serious matters which required a General Meeting of
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members, which were conclusions reached as the aftermath of the 2 nd respondents
building plans. These were issues beyond the Trustees and needed members. To
keep such an expert opinion out of the reach of ordinary members especially those
to be affected, and to deny the members the benefit of the estate architect and the
trustees reasons for approving 2nd respondents building plans under the
circumstances, and further deny the members of the 1 st respondent especially those
who may be affected, the opportunity to engage with the contested views of the
experts on the status of a Site Analysis: Building Control Plan s in the Estate, was
mala fide.
[23] The estate architect and the Trustees were wrong to simply disregard the
views of the members affected, and the opinion of Mr Friedman. The estate
architects decision and the T rustees' resolution was: (a) procedurally unfair and
unreasonable; (b) without any justifiable basis and thus unreasonable; (c) in breach
of the principles of natural justice; and (d) unjust [Trustees of the Legacy Body
Corporate para 46]. The applicant urged this court to find that the trustees' decision
is so unfair that it cannot be explained unless it is found that they were motivated
by being racists. I am prepared to take it to the point of the estate architect and the
trustees acting capriciously. I am slow to support a school of thought that a
difference of opinion between a Black person and a White person is almost always
underlined by the racism of a White compatriot. In the same vein, I am slow to
support 2nd respondents thinking that the difference of opinion between him and
the other members of the 1 st respondent who are publicly objecting to his building
without a waiver application in circumstances where they held the view that he
should apply and they should be allowed to engage with his deviation, is
underlined by their being narcissists. The applicant’s approach to 2 nd respondents
25
building plans and construction were amongst others informed by the expert
opinion of Steven Neufield (Neufield) who was a professional valuer. Neufield
said allowing 2 nd respondent to contravene the architectural controls directly
caused a loss of value of the applicant’s property and should not be allowed. This
was because amongst others due to the unlawful structure the applicant’s erf would
have a reduced view and a less open feeling due to the more monolithic structure in
front of it. There was a reduction in aesthetic value, and a view was one of the key
value-forming characteristics of property in Plettenberg Bay, and reducing the view
reduced the value of the property . He estimated the decrease in value to about
R1 500 000. He added that it was not merely a financial loss in the reduced value
of the property . The 2 nd respondent’s construction, if it were allowed to proceed,
would negatively impact on the applicant’s enjoyment of his own house , a right
which was supposed to be protected by the 1 st respondent and was trodden on
unjustly and unfairly.
[24] In our constitutional order, private entities are not enclaves of power, immune
from the obligation to act fairly, lawfully and reasonably [Trustees of the Legacy
Body Corporate para 50 ]. The standards of lawfulness, reasonableness and
procedural fairness had not been adhered to by the estate architect and the
trustees. The impact of the wrong interpretation and application of rules in an
Estate can be widespread and ensuring effective oversight by the General Meeting
is important to safeguard not only property rights but also other constitutional
rights of members of a Homeowners Association. The condonation of departures in
the first plan submitted by the 2
nd respondent by the estate architect and the
trustees, under the circumstances, without disclosing the disputed alleged impact of
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the departures to the General Meeting was unlawful, unreasonable and
procedurally unfair. For these reasons the order was made.
___________________________
DM THULARE
JUDGE OF THE HIGH COURT