SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:
1546/2024
In the matter between:
STEREA DIGITAL CC FIRST APPELLANT
SANDENBERGH NEL HAGGARD SECOND APPELLANT
and
THE CITY OF CAPE TOWN FIRST RESPONDENT
APPEAL AUTHORITY
OF THE CITY OF CAPE TOWN SECOND RESPONDENT
THE MUNICIPAL PLANNING TRIBUNAL
OF THE CITY OF CAPE TOWN THIRD RESPONDENT
Neutral citation: Sterea Digital CC and Another v The City of Cape Town and
Others (369/24) [2025] ZASCA 166 (31 October 2025)
Coram: MOLEMELA P, MEYER, MOLEFE AND SMITH JJA AND KUBUSHI AJA
Heard: 21 AUGUST 2025
2
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand- down of the judgment is
deemed to be 11h00 on 31 October 2025.
Summary: Municipal law – property – rezoning application. Administrative Law –
Promotion of Administrative Justice Act 3 of 2000, ss 6(2) (e)(iii) and 6(2) (a)(iii) -
whether the Municipal Planning Tribunal’s decision to refuse an application to rezone
property in a secluded residential neighbourhood from Single Residential 1 to Local
Business 1 was correct – whether the internal a ppeal authority was biased or
reasonably suspected of bias and failed to consider relevant considerations in
dismissing the appeal.
3
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town (Gamble,
Cloete and Samela JJ sitting as court of appeal):
1 The appeal is upheld in part.
2 The full court’s order is set aside and replaced with the following:
‘1. The appeal is upheld.
2. The high court’s order is set aside and replaced with the following:
The application is dismissed.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Meyer JA (Molemela P, Molefe and Smith JJA, and Kubushi AJA concurring)
[1] The first appellant, Sterea Digital CC (Sterea), and the second appellant, a
firm of attorneys , Sandenbergh Nel Haggard (SNH) or collectively ‘the appellants’ ,
seek to appeal the order of the Western Cape Division of the High Court, Cape
Town, per Gamble, Cloete and Samela JJ (the full court), delivered on 21 November
2023. The matter before the full court was the judicial review of administrative action.
[2] Sterea had applied to the first respondent, the City of Cape Town (the city),
under the City of Cape Town Municipal Pl anning By -Law, 2015 (the By-L aw), to
rezone its property , situated at […] B[…] Street, D[…] (the property), which is in a
secluded residential neighbourhood, from a Single Residential 1 zoning (SR1) to a
Local Business 1 zoning (LB1). The property is 1,514m² in extent with a dwelling
house and outbuildings erected on it . Sterea sought the rezoning to convert the
residential dwelling to business premises from where SNH were to operate its
attorneys’ firm. SNH wa s a mid -sized firm at the time when the application for
rezoning was made, it employed six attorneys, four paralegals and 12 support staff.
4
[3] According to the By-Law, SR1 zoning:1
‘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 possible as primary or
consent uses, provided that the impacts of such uses do not adversely affect the
surrounding residential environment’.
The By -Law defines ‘consent use’ to mean: ‘a land use permitted in terms of a
particular zoning with the approval of the City .’2 Under item 21(a) of Schedule 3 to
the By -Law – ‘Development Management Scheme’ – the primary uses for SR1
zoning ‘are dwelling house, private road s and additional use rights ’. Item 21 (c) lists
the consent uses for SR1 zoning as ‘utility service, place of instruction, place of
worship, house shop , institution, guest house, rooftop base telecommunication
station, wind turbine infrastructure, open space, urban agriculture, second dwelling
and halfway house’.3
[4] On 10 March 2020, the third respondent, the Municipal Planning Tribunal of
the City of Cape Town (MPT), refused the rezoning application. On 12 October 2020,
the second respondent, the Appeal Authority of the City of Cape Town (AA), who
was the city’s former executive mayor, Mr Daniel Plato, dismissed Sterea’s
administrative appeal. On 6 April 2022, the Western Cape Division of the High Court,
Cape Town, per Goliath DJP (the court of first instance) granted Sterea’s application
for judicial review. On 21 November 2023, the full court upheld the city’s appeal and
determined the review in the city’s favour.
[5] On 10 October 2017, the city granted the then owner of the property a
‘consent use’ to use the property for a limited period of two years as a ‘place of
instruction’ for a private school for children with learning disabilities. On 18 February
2019, Sterea signed a sale agreement to purchase the property to use as law firm
2019, Sterea signed a sale agreement to purchase the property to use as law firm
offices. At the beginning of March 2019, the school vacated the property. On 8
March 2019, Sterea’s representative (Mr Scott of Pro -Konsort Town Planners)
emailed the city asking for information about ‘existing rights that have been awarded’
in respect of the property.
1 City of Cape Town Municipal Planning By-Law, 2015(the By-Law).
2 Chapter 1, definitions of the By-Law.
3 Item 21(a) of Schedule 3 of the By-Law.
5
[6] After being told of the plan to use the property as attorneys’ offices, a city
official in the Urban Integration Department, Ms De Klerk, expressed her views and
the likely position of the department, in an email to Mr Scott. She explained that ,
from a policy perspective, she did not anticipate that the city’s spatial planning
department would support the proposed use of the property in a residential precinct
for business purposes. The property fell outside Durbanville’s primary precinct for
business p urposes. Its rezoning would conflict with the Northern District Plan (the
NDP), the district spatial development framework and the local spatial development
framework,
4 which supported mixed uses only in appropriate areas. The NDP is a
district spatial development framework. 5 In any planning application under the By -
Law concerning a property, the NDP must be complied with and can be deviated
from ‘only if the circumstances justify the deviation’. 6 If the deviation is unjustified,
the application ‘must be refused’.7
[7] She explained that a business use in that position would be ‘ business creep’,
with negative consequences for the surrounding residential properties.
8 Rezoning to
business would fundamentally differ from the school consent use. First, the
permission was temporary, for two years, to assess its impact and to give the special
needs school time to find alternative premises. Second, the educational use was
consistent with the property’s existing SR1 zoning. Rezoning to business would be
permanent, give different rights and have more impact.
4 Section 16 deals with the s tatus of a district spatial development framework and a local spatial
development framework. It reads:
‘(1) If an application is inconsistent with an applicable district spatial development framework or a
local spatial development framework, the applicant must describe the inconsistency in –
(a) the application; and
(b) the advertisement of the application.
(a) the application; and
(b) the advertisement of the application.
(2) A person who takes a decision in terms of this By-Law –
(a) must be guided by an applicable district spatial development framework and/or local
spatial development framework;
(b) subject to section 22, may deviate from the provisions of an applicable district spatial
development framework and/or local spatial development framework only if the
circumstances justify the deviation.
(3) A district spatial development framework and a local spatial development framework do not
confer or take away rights.’
5 The NDP was approved as a structure plan under s 4(10) of the Land Use Planning Ordinance 15 of
1985 on 31 October 2012 and is listed in Schedule 1 of the By-Law. In terms of s 20 of the By -Law,
the NDP is deemed to be a district spatial development framework approved in terms of the By-Law.
6 Section 16(2)(b) of the By-Law.
7 Section 99(1)(a) of the By-Law.
8 Business creep is the incremental conversion of residential properties to businesses, gradually
undermining an area’s residential character.
6
[8] On 16 May 2019, ownership of the property passed to Sterea. On 5 June
2019, it applied for rezoning of the property. On 10 March 2020, the MPT refused the
application under s 98(c) of the By -Law. The MPT’s reasons included: (a) the NDP
designates B[…] Street as a ‘secluded neighbourhood that does not form part of the
CBD demarcation’; (b) the N DP seeks to retain and protect the residential character
of the B[…] Street neighbourhood, which has a unique character because of its size,
vegetation and location; (c) the NDP prohibits business creep; (d) under the By-Law,
a decision-maker may deviate from the NDP ‘only if the circumstances justify the
deviation’. Sterea failed to justify the deviation it sought; (e) the proposed rezoning of
the property to LB1 is not in keeping with the surrounding land use and residential
character and is not supported from a planning and spatial planning perspective.
Title deed restrictions for the area protect the residential character , which should be
retained; (f) employing at least 25 staff members is large scale, which is not
conducive in a purely residential area; (g) the proposal would create a negative
visual/social impact on the residential interface along B […] Street; and (h) the
property falls outside the Durbanville CBD where land use intensification and
employment-generating land uses are encouraged.
[9] Sterea appealed the MPT decision to the AA. A city official, Mr Snyman ,
prepared a report describing and assessing the appeal grounds and all comments
and objections on the appeal, as required under the By -Law (the appeal report). On
6 August 2020, t he appeal report was considered at the meeting of the Planning
Appeals Advisory Panel, which recommended the dismissal of the appeal.
[10] The AA, exercising wide appeal powers under s 114(3) of the By -Law, and
having considered all the appeal grounds, the relevant considerations , the appeal
report, and the recommendation from the Planning Appeals Advisory Panel,
report, and the recommendation from the Planning Appeals Advisory Panel,
exercised its discretion to refuse the rezoning application, and dismissed the appeal
under s 98(c) of the By-Law (the appeal decision). It, too, found that Sterea had not
justified a deviation from the NDP.
[11] Sterea seeks to assail the appeal decision under the provisions of
subsections 6(2)(e)(iii) and 6(2)(a)(iii) of the Promotion of Administrative Justice Act
7
(PAJA).9 It argues that in taking the appeal decision t he city’s former executive
mayor was biased or reasonably suspected of bias and failed to consider relevant
considerations. The crux of the complaints advanced by Sterea is the AA’s alleged
predisposition to rigidly follow the NDP to the exclusion of all else, and that it failed to
consider that the property had already lost its exclusive residential character as a
result of it having been used as a school. On the other hand, it argues that the outcry
from the surrounding community following the use of the property as a school
influenced the city’s officials at the local planning lev el as well as the AA to have a
preconceived notion that rezoning of the property would adversely affect the property
and secluded neighbourhood; a ‘once bitten twice shy’ approach which led to a
failure to apply an unbiased mind to Sterea’s rezoning application.
[12] Such bias, Sterea argues, permeated the entire decision- making process,
from beginning to end, tainting both the decisions of the MPT and the AA thereafter.
The same official who previously motivated the granting of a consent use for the
school in a report to the MPT, Ms de Klerk, informed Sterea before any rezoning
application had been made to the city, that its rezoning application would ‘not be
supported’. Such sentiment of Ms de Klerk was repeated in the appeal report and
subsequently rubber stamped by the MPT.
[13] An application for rezoning of property is regulated by the By -Law. It provides
in relevant part that 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 the By -Law.
10 An applicant who requires
approval for the use or development of land must apply to the city in terms of s 42.
9 Promotion of Administrative Justice Act 3 of 2000. Subsections 6(2)(e)(iii) and 62(a)(iii) read:
‘6(2) A court or tribunal has the power to judicially review an administration action if-
(a) the administrator who took it-
(iii) was biased or reasonably suspected of bias;
. . .
(e) the action was taken-
(iii) because irrelevant considerations were taken into account or relevant considerations
were not considered;’
10 Section 35(2) stipulates that ‘[n]o 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 By-Law’.
8
The determination of a rezoning application is governed by s 99. 11 Section 99(1)
prohibits the approval of such an application if certain minimum threshold
requirements are not met. Amongst those threshold requirements are those
concerning a district spatial development framework . The NDP is such a framework.
Section 16, in turn, instructs a municipality to be guided by the district spatial
development framework and to deviate from its provisions ‘ only if the circumstances
justify the deviation’. All municipal planning decisions that encompass zoning and
subdivision, n o matter how big, lie within the exclusive competence of
municipalities.12
[14] Here, both the MPT and the AA found that Sterea had not justified a deviation
from the NDP, and thus withheld approval of the subdivision applied for . The court of
first instance disregarded the city’s discretion to refuse to rezone the property .
Instead of considering the regularity of the impugned decisions, it concerned itself
with the correctness thereof and substituted its views on the merits of the rezoning
application for those of the MPT and the AA . It, inter alia, held that the city was
11 Section 99 deals with the criteria for deciding an application. It reads:
‘(1) An application must be refused if the decision-maker is satisfied that it fails to comply with the
following minimum threshold requirements –
(a) the application must comply with the requirements of this By-Law;
(b) the proposed land use must comply with or be consistent with the municipal spatial
development framework, or if not, a deviation from the municipal spatial development
framework must be permissible;
(c) the proposed land use must be desirable as contemplated in subsection (3); and
(d) in the case of an application for a departure to alter the development rules relating to
permitted floor space or height, approval of the application would not have the effect
permitted floor space or height, approval of the application would not have the effect
of granting the property the development rules of the next subzone within a zone.
(2) If an application is not refused under subsection (1), when deciding whether or not to approve
the application, the decision maker must consider all relevant considerations including, where
relevant, the following –
(a) any applicable spatial development framework;
(b) relevant criteria contemplated in the development management scheme;
(c) any applicable policy or strategy approved by the City to guide decision making,
which includes the Social Development Strategy and the Economic Growth Strategy;
(Para. (c) substituted by s. 7 of City of Cape Town: Municipal Planning Amendment
By-Law, 2017)
(d) the extent of desirability of the proposed land use as contemplated in subsection (3);
(e) impact on existing rights (other than the right to be protected against trade
competition);
(f) in an application for the consolidation of land unit –
(i) the scale and design of the development;
(ii) the impact of the building massing;
(iii) the impact on surrounding properties;’
12 City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others [2010]
ZACC 11; 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC) paras 49 -57; Minister of Local
Government, Environmental Affairs and Development Planning, Western Cape v Habitat Council and
Others [2014] ZACC 9; 2014 (5) BCLR 591 (CC); 2014 (4) SA 437 (CC) paras 13 and 19.
9
inconsistent in its approach to granting consent use for a school and its approach to
Sterea’s rezoning application. This fundamental error made by the court of first
instance was subsequently corrected by the full court.
[15] I now turn to Sterea’s argument of bias. In Turnbull-Jackson v Hibicus Coast
Municipality and Other s,13 the Constitutional Court applied the SARFU 1114 test of
bias in judicial proceedings to administrative action by an administrator who is
‘biased or reasonably suspected of bias’. A reasonable suspicion of bias is tested
against the perception of a ‘reasonable, informed and objective person’.
[16] In MEC for Environmental Affairs and Development Planning v Clai rison’s
CC
15 this Court held:
‘Government functionaries are often called upon to make decisions in relation to matters that
are the subject of pre-determined policies. As pointed out by Baxter: ‘[It] is inevitable that
administrative officials would uphold the general policies of their department; in this broad
sense it follows that they must be prejudiced against any individual who gets in their way.
But this “departmental bias”, as it has been labelled, is unavoidable and even desirable for
good administration. It does not necessarily prevent the official concerned from being fair
and objective in deciding particular cases.
. . .
If the MEC was predisposed to refusing the application because it was contrary to the policy
of his department that is not objectionable “bias ”. A government functionary is perfectly
entitled to refuse an application because it conflicts with pre-determined policy. No doubt
when exercising a discretion on a matter that is governed by policy the functionary must
bring an open mind to bear on the matter, but as this court said in Kemp NO v Van Wyk , that
is not the same as a mind that is untrammelled by existing principles or policy. It said further
that the functionary concerned “was entitled to evaluate the application in the light of the
that the functionary concerned “was entitled to evaluate the application in the light of the
directorate’s existing policy and, provided that he was independently satisfied that the policy
was appropriate to the particular case, and did not consider it to be a rule to which he was
13 Turnbull-Jackson v Hibicus Coast Municipality and Others 2014 (6) SA 592 (CC) ; 2014 (11) BCLR
1310 (CC) para 30 (Turnbull-Jackson).
14 President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 1999 (4) SA 147 (CC) para 48. There it was held:
‘The question is whether a reasonable, objective and informed person would on the correct facts
reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the
adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of
counsel . . . ‘
15 MEC for Environmental Affairs and Development Planning v Clairison’s CC [2013] ZASCA 82 ;
[2013] 3 All SA 491(SCA); 2013 (6) SA 235 (SCA) paras 30 and 32.
10
bound, I do not think it can be said that he failed to exercise his discretion”. ’ (References
omitted.)
[17] There was no basis for finding, as the court of first instance did, that the
officials concerned exhibited either actual or a reasonable suspicion of bias. First,
Sterea contends that the AA ‘elevated the NDP to the sole or at least main
determinative’, that it had a ‘predetermined mindset’ and that asked the ‘wrong
question’ by considering whether the MPT was correct in refusing the rezoning in the
face of the NDP. It contends that they should have asked if it was correct not to grant
a ‘deviation from the existing zoning’. However, it was for Sterea to justify a deviation
from the NDP . As was said by Rogers J in Booth and Others v Minister of Local
Government, Environmental Affairs and Development Planning and Another ,16 the
applicant must ‘ put up [something] convincing’ to show a justification for deviating
from a spatial planning policy. The city was not satisfied that Sterea had done so.
The 27- page appeal decision considered each ground of appeal and all relevant
considerations, not just the NDP. As pointed out by the full court: ‘there is nothing
persuasive to refute the Mayor’s version that he took the NDP into account as but
one of the guiding factors, and nevertheless independently applied his mind to the
particular application before him’. Refusing the rezoning because Sterea failed to
justify a deviation from the NDP was, in my view, compliant with the city’s statutory
duty, not an objectionable bias.
[18] Second, Sterea argues that the school consent use evidenced bias. However,
it is their pleaded case that ‘[t]he previous use of the property was not afforded
sufficient weight’. It did not plead that the school consent use evidenced bias. Before
us, Sterea argues that the school consent use application was not considered or
given any weight’. This contradicts Sterea’s argument that the decision- makers were
given any weight’. This contradicts Sterea’s argument that the decision- makers were
biased against its application for rezoning of the property , because they considered
the consent use and the fact that the school’s operation had created an uproar in the
local community. It argues that the community’s backlash influenced-
16 Booth and Others v Minister of Local Government, Environmental Affairs and Development
Planning and Another [2013] ZAWCHC 47; [2013] 2 All SA 275 (WCC); 2013 (4) SA 519 (WCC) para
35.
11
‘. . . the City’ s officials at the local planning level to have a pre-conceived notion that
rezoning was not appropriate for the property, a “once-bitten twice shy” approach which led
to the failure to apply an unbiased mind to the rezoning application’.
There is, however, no evidence that the consent use approval and the community’s
response resulted in the refusal of the rezoning application. Sterea relies on Ms De
Klerk’s email, but she was not a decision- maker. The AA, like the MPT, does not
mention the community’s response.
[19] Sterea further seeks to assail the AA’s appeal decision by contending that in
taking the appeal decision, the city’ s former executive mayor failed to consider
relevant considerations : the effect of the school’s operation on the property. It is
incorrect that the decision- makers attached ‘no weight ’ to this fact. Rather, they
concluded that the consent use had not changed the character of the property to that
of business use because (a) the school consent use was in keeping with the
residential zoning of the property; (b) the consent use was granted for a limited
period of two years which means that it was not a permanent feature and had ended;
and (c) it did not irrevocably change the character of the area.
[20] The AA did consider the property’s previous use as a school and the school’s
consent use. It found:
‘The appellants however fail to recognise that each application should be assessed upon its
own facts and in its context. This is peculiar since the argument is used to justify the
appellant’s deviation from the NDP. The school in any event was not a business offering
professional services but rather educational services which benefits the surrounding
community and fits into the residential fabric of the area. This is evident by the DMS
permitting places of instruction in a SR1 zone as a consent use. Yet, ev en the place of
instruction, which did not require rezoning, which affords a subject property different
instruction, which did not require rezoning, which affords a subject property different
development rights, was only approved for a two-year period.’
[21] In conclusion: the decision- makers considered whether the school consent
use of the property justified rezoning it to business use. They decided it did not.
Sterea’s disagreement with that finding and with the weight afforded to the issue
does not establish a reviewable irregularity.
12
[22] Finally, the matter of costs. Sterea argues that it should not pa y the city ’s
costs should the appeal be dismissed. It also argues that this Court should in that
event interfere with the full court’s award of costs in the city’s favour. In support of
these argument s, it relies on the general rule enunciated in Biowatch Trust v
Registrar Genetic Resources and Others ,17 that in constitutional litigation an
unsuccessful litigant ought not to be ordered to pay costs. The general rule is subject
to qualifications, such as where ‘an application is frivolous or vexatious, or in any
other way manifestly inappropriate’, 18 ‘conduct on the part of the litigant that
deserves censure by the court’ ,19 or in the case of ‘wanto n, gratuitous allegations of
bias – actual or perceived – against public officials’.20
[23] The city argues that each of the mentioned qualifications finds application in
this case and that Sterea is accordingly not immunised against an adverse costs
award. I do not consider Sterea’s application for review as frivolous or vexatious or
manifestly inappropriate or that its allegations of bias against the relevant public
officials are of the kind that deser ve censure by this Court. I accept that since a
review of administrative action amounts to a constitutional issue, the parties’ legal
dispute falls within the purview of litigation that involves the vindication of a
fundamental right protected by the Constitution. It follows that the appeal should be
dismissed without an adverse costs order against Sterea. Also, t he full court’s
adverse costs order should be set aside.
[24] In the result, the following order is made:
1 The appeal is upheld in part.
2 The full court’s order is set aside and replaced with the following:
‘1. The appeal is upheld.
2. The high court’s order is set aside and replaced with the following:
The application is dismissed.’
________________________
The application is dismissed.’
________________________
17 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC)
2009 (10) BCLR 1014 (CC) para 28 (Biowatch).
18 Biowatch para 24.
19 Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3; 2006 (3) SA
247 (CC); 2005 (6) BCLR 529 (CC) para 138.
20 Turnbull-Jackson para 35.
13
P.A. MEYER
JUDGE OF APPEAL
14
Appearances
For appellant: R Stelzner SC with J Whitaker
Instructed by: Sandenberg Nel & Haggard, Bellville
Spangenberg Zietsman Bloem ,
Bloemfontein
For respondent: R Pashke SC with M O’Sullivan SC
Instructed by: Toefy Attorneys, Glen Marine
Honey & Partners Inc., Bloemfontein.