Camps Bay Ratepayers and Residents Association and Another v Harrison and Another (CCT 18/10) [2010] ZACC 19; 2011 (2) BCLR 121 (CC) ; 2011 (4) SA 42 (CC) (4 November 2010)

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[2010] ZACC 19
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Camps Bay Ratepayers and Residents Association and Another v Harrison and Another (CCT 18/10) [2010] ZACC 19; 2011 (2) BCLR 121 (CC) ; 2011 (4) SA 42 (CC) (4 November 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 18/10
[2010] ZACC 19
In the matter between:
CAMPS BAY RATEPAYERS’
AND RESIDENTS’ ASSOCIATION
…......................................................
First
Applicant
PS BOOKSELLERS (PTY) LTD
…........................................................
Second
Applicant
and
GERDA YVONNE ADA HARRISON
…................................................
First
Respondent
MUNICIPALITY OF THE CITY OF
CAPE TOWN
…....................................................................................
Second
Respondent
Heard on : 5 August 2010
Decided on : 4 November 2010
JUDGMENT
BRAND AJ:
[1]
This is an application for leave to
appeal against the judgment of the Supreme Court of Appeal.
1
It is the culmination of a legal wrangle between the parties that
dates back close on five years. It has its origin in a decision
by
the Municipality of the City of Cape Town (the City) to approve a
set of plans for the building of a house on the property
of the
first respondent, Ms Harrison, on the corner of Geneva Drive and
Blinkwater Road, Camps Bay. The City is cited as the
second
respondent. The first applicant, the Camps Bay Ratepayers’ and
Residents’ Association, is a voluntary association.
Part of
its objects is to safeguard the rights and interests of the
residents of the rather affluent suburbs of Cape Town on
the
Atlantic Seaboard, including Camps Bay. The second applicant, PS
Booksellers (Pty) Ltd, is also the owner of property on
Blinkwater
Road, Camps Bay which is situated more or less diagonally behind the
property of Ms Harrison. Though the property
of the second applicant
is described as its principal place of business, it is in reality
the family home of its director, Mr
Anthony Herman, who is a partner
in the firm of attorneys who represented both applicants throughout
the litigation history between
the parties, to which I now turn.
Litigation
history
[2] A
convenient starting point for the chronicle is when Ms Harrison
acquired her property in September 2004. At that time the
only
building on the property was a modestly styled single storey
cottage. But soon after taking occupation, Ms Harrison applied
to
the City for the approval of a set of plans which would authorise
the construction on her property of a three storey house.
These
plans were approved by the City on 24 February 2005 and became known
throughout the proceedings as “the original
plans” or
“the February 2005 plans”. Once Ms Harrison had obtained
this approval she caused the cottage on
the property to be
demolished and the construction of the new building to commence on
17 March 2005. Shortly thereafter, she
advertised the property with
the improvement of the new three storey house for resale at a price
of R12,75 million.
[3] When
the building activities became apparent, the applicants viewed the
plans at the City’s offices and made their objections
to the
proposed building known to both Ms Harrison and the City. As a
result of these objections, Ms Harrison submitted substantially

revised plans. The revised plans, described in town planning
parlance as “rider plans”, were approved by the City
on
8 September 2005, “the September 2005 plans”. Despite
the approval, the applicants were not satisfied that the
revision of
the plans met their concerns. In November 2005 they thus instituted
an application in the Western Cape High Court,
Cape Town (High
Court) for an order interdicting Ms Harrison from proceeding with
the building operations in accordance with
the September 2005 plans
and from selling or otherwise alienating the property pending the
proceedings specified in the order.
The proceedings specified an
internal appeal to be launched by the applicants under section 62 of
the Local Government: Municipal
Systems Act
2
(Systems Act) against the approval of the September 2005 plans and a
proposed application for the demolition of any construction
which
contravened the restrictions in the title deed conditions of the
property.
[4] In spite of opposition by the respondents, Meer J granted an
interdict in the terms sought. Her judgment has been reported
as
PS
Booksellers (Pty) Ltd and Another v Harrison and Others
.
3
As appears from the reported judgment, the applicants’
objections against the September 2005 plans – which thereafter

became a recurring theme throughout the various proceedings that
were to follow – were essentially twofold. Their first

objection
4
was that the building authorised by the plans would contravene the
restriction imposed by the then Administrator of the Cape
5
as is reflected in clause D(d) of the title deed conditions of the
property. It provides:
“
That
no building or structure or any portion thereof, except boundary
walls and fences, shall be erected nearer than 3,15 metres
to the
street line which forms a boundary of this erf.”
[5] The applicants’ second objection
6
was that the building as reflected in the approved plans relies on
the manipulation of natural ground levels by means of structures

erected in contravention of the restriction, in order to evade the
prohibition contained in section 98(2) of the Zoning Scheme

Regulations applicable to Camps Bay.
7
The part of section 98(2) relied upon provides that:
“
No
point on the facade of any building . . . shall be more than 10 m
above the level of the ground abutting such facade immediately
below
such point.”
[6] In
the event, Meer J was persuaded to grant the interdict sought
essentially on the basis that some of the structures indicated
on
the plans as “boundary walls” were in truth retaining
walls in that they not only supported a swimming pool and
a
so-called “planter” but also retained a substantial
amount of compacted fill material behind them. In the light
of this,
Meer J held, these walls constituted “structures” other
than boundary walls or fences, as envisaged by clause
D(d), that
were nearer than 3,15 metres from the street lines bounding the
property. In consequence, Meer J held that they constituted

contraventions of the title deed restriction in that clause.
8
[7] In
order to steer clear of confusion later, it is necessary to identify
the boundary walls of the property that were of prime
concern to
Meer J. Broadly speaking, to avoid entanglement by detail, the
property slopes rather steeply from its Blinkwater
Road boundary in
the east to Geneva Drive on its northern and western sides. The
offending walls that supported the swimming
pool, the planter and
the compacted fill, which Meer J consequently identified as
contravening clause D(d), were those on the
Geneva Drive boundaries
where the property is higher than street level. These walls should
be distinguished from the wall on
Blinkwater Road which features
later in this application.
[8] Meer
J also found some merit in the applicants’ objection based on
section 98(2) of the Zoning Scheme Regulations. In
keeping with her
findings on the clause D(d) issue, she held that it had also been
established by the applicants, at least on
a
prima facie
basis,
that the ground level from which the height of the proposed façade
of the building was measured had been artificially
manipulated by
the use of the unlawful retaining walls on Geneva Drive and the
compacted fill behind them, thus concealing an
infringement of the
10 metre height restriction imposed by section 98(2).
9
[9] The applicants’ internal appeal under section 62 of the
Systems Act was also decided in their favour, again on the
basis
that the Geneva Drive boundary walls on the September 2005 plans
were in fact “structures” in the form of retaining
walls
which contravened title deed condition D(d). In the light of this
decision on appeal, the parties proceeded on the basis
that the
September 2005 plans had been duly set aside and arranged their
affairs accordingly.
10
On this assumption, Ms Harrison submitted for approval yet a further
set of plans on 30 May 2006 as another rider to the February
2005
plans. The most significant amendment brought about by the new plans
was that the swimming pool, the planter and the compacted
fill
behind the Geneva Drive walls were removed so that these became free
standing boundary walls.
[10] The
City informed each of the applicants about the submission of the new
plans and invited them to advance representations
as to why it
should not be approved. Mr Herman, acting as attorney for both
applicants, availed himself of this opportunity by
writing two
comprehensive and rather prolix letters of objection, first on 27
October 2006 and then again on 15 January 2007.
These objections
notwithstanding, the plans were approved by the City in September
2007 and hence became known in the proceedings
as “the
September 2007 plans” or, since it turned out to be the
subject of the present litigation, “the impugned
plans”.
[11] On 23 October 2007 the applicants launched an application in
the High Court to review and set aside the approval of the
September
2007 plans.
11
When that application proved to be unsuccessful, they appealed to
the Supreme Court of Appeal. The dismissal of that appeal,
in turn,
gave rise to the present application for leave to appeal to this
Court.
In the
High Court
[12] Like
the earlier interdict application, the review application relied on
the grounds that the September 2007 plans still
contravened the 3,15
metre setback requirement (from the street boundaries) required by
title deed condition D(d) as well as
the 10 metre height restriction
imposed by section 98(2) of the Zoning Scheme Regulations. Apart
from these, the applicants relied
on the procedural ground that the
officials of the City had failed to give due consideration to their
objections, raised in the
two letters by Mr Herman and that they had
consequently failed to have regard to the unlawful features of the
plans that were
pointed out to them. The procedural objection will
be best understood against the background of the statutory framework
pursuant
to which the City approved the September 2007 plans and the
procedures adopted by its officials prior to that approval.
[13] The
statutory framework for the approval of all building plans is to be
found mainly in the provisions of the National Building
Regulations
and Building Standards Act
12
(Building Act). The starting point is in section 4 of the Building
Act which requires approval by a local authority of building
plans
before any construction can commence. Section 5 obliges every local
authority to appoint a building control officer, who
is the vital
cog in the approval process. He or she is required to be skilled and
specialised and is afforded extensive powers
in terms of section 6.
One of these powers, in section 6(1)(a), is to make recommendations
with regard to plans submitted for
approval under section 4.
[14] The
process of approving plans is provided for in section 7 of the
Building Act.
13
I shall soon return to the provisions of section 7 in detail. Two
comments are, however, pertinent for present purposes. Firstly,

section 7(1) requires a recommendation by the building control
officer as a precondition for any decision to be taken by the
City
on an application for approval in terms of section 4. In the context
of administrative law, that recommendation is therefore
a
jurisdictional fact, the existence of which is a prerequisite for
the exercise of the power under section 7.
14
Secondly, in sum, the section forbids the approval of plans if the
proposed building would contravene any legal requirement or
would
derogate from the value of neighbouring properties, be otherwise
unsightly or objectionable, or be dangerous to life or
property.
[15] As
to the procedures observed by the City with regard to the impugned
September 2007 plans, it appears that the plans were
first sent to
various departments for scrutiny. Included amongst these was the
department responsible for verification and confirmation
that plans
submitted were consistent with the Zoning Scheme Regulations and
title deed conditions, including height restrictions
and building
lines. Once the plans had been cleared by all these departments, it
was submitted to the building control officer
of the City, Mr C J
Moir, for consideration. According to Mr Moir, he had particular
regard to the objections raised in Mr Herman’s
letters of 27
October 2006 and 15 January 2007. He considered these objections in
the light of other information before him,
including the fact that
the plans had been cleared by the various departments. He also
visited the site and eventually concluded
that the objections had no
merit. Accordingly, he decided to recommend the approval of the
plans. To this end he prepared a memorandum
motivating his
recommendation which was submitted to Mr S N Holden, to whom the
City had delegated its authority to grant or
refuse the approval of
building plans under section 7 of the Building Act.
15
According to Mr Holden he considered all the information available
to him, including the objections by the applicants summarised
in the
memorandum of Mr Moir. Ultimately, so he said, he was guided by Mr
Moir’s recommendation in his decision to approve
the plans.
[16]
Against this background, the applicants’ procedural ground of
objection, as developed in their affidavits before the
High Court,
was that the decision-maker, Mr Holden, had no proper appreciation
of their objections. This, they contended, was
because Mr Holden did
not have their letters before him but merely relied on a list of the
principle grounds of objection in
the memorandum of Mr Moir which,
according to the applicants, proved to be both inaccurate and wholly
inadequate. The affidavits
then proceeded to develop this theme by
analysing the contents of the letters in great detail and then
comparing them with the
contents of Mr Moir’s memorandum. What
also appears clearly from the applicants’ affidavits was that
even with regard
to their procedural grounds, their focus was on the
recurring theme that the proposed building would contravene the
height restriction
imposed by the Zoning Scheme Regulations and the
setback requirements in clause D(d) of the title deed conditions.
[17] In
their replying affidavits before the High Court the applicants then
for the first time sought to introduce a ground of
review that they
had never referred to at any prior stage of the protracted conflict.
It relied on the contention that the September
2007 plans should not
have been approved because they did not comply with the building
line restrictions imposed by section 47
of the Zoning Scheme
Regulations.
16
The relevant part of this section provides:
“
(1)
Except as provided in subsection (2), no building which is a
dwelling house . . . shall be erected nearer than 4,5 m to any

street boundary of the site of such building provided that:
. . . .
(2) Where the average depth of
the site of any building referred to in subsection (1) measured at
right angles to a street boundary
of such site does not exceed 20 m,
such building may be erected nearer than 4,5 m but not nearer than 3
m to the street boundary
concerned.
(3) Where the boundaries of a
site are so irregular that doubt or uncertainty exists as to the
correct value of the average depth
of the site, the Council shall
define such average depth in accordance with the intent of this
section.”
[18]
Relying on these provisions, the applicants maintained in their
replying papers that the building proposed by the impugned
plans
would be set back only 3,233 metres, as opposed to 4,5 metres, from
its Blinkwater Road boundary.
[19] In
answer to these new allegations the respondents filed a further set
of affidavits. Apart from objecting in principle to
a ground of
review raised for the first time in reply, they responded to the
factual allegations advanced in its support. Though
admitting that
the building was set back only 3,233 metres from the Blinkwater Road
boundary, they contended that it would comply
with section 47(2)
because the average depth of the site, so they said, did not exceed
20 metres. Additionally, they relied on
the exception in section
47(3) on the basis that the boundaries of the site were irregular to
the extent contemplated by this
subsection and that the City
therefore complied with its obligation under the subsection by
defining the average depth of the
property as being less than 20
metres “in accordance with the intent of this section”.
17
[20] The
High Court refused to entertain the challenge based on section 47 on
the procedural basis that it was raised for the
first time in reply
and that the arguments relating to the interpretation of section 47
were, consequently, not adequately ventilated
on the papers.
18
With regard to the alleged contraventions of the 10 metre height
restriction in section 98(2) of the Zoning Scheme Regulations
and
the 3,15 metre set back required in clause D(d) of the title deed
restrictions, the High Court held that these had not been

established by the applicants on the facts. In view of the
amendments to the September 2005 plans, the court held that the

boundary walls on the September 2007 plans could no longer be
described as “retaining walls”. Consequently they did

not contravene the title deed restrictions. The alleged
contravention of the height limitation, so the court held, was the

subject of a factual dispute between experts which, by the nature of
motion proceedings, had to be decided in favour of the respondents.
19
[21] As
to the procedural ground of review that the decision-maker, Mr
Holden, had not been properly and adequately informed of
the
objections raised by the applicants in their letters, the High Court
gave a twofold answer. Firstly, although Mr Holden did
not consider
the actual letters of objection, he had Mr Moir’s summary
before him which adequately and accurately captured
the essence of
the applicants’ objections. Secondly, and in any event, even
if the memorandum was inadequate or inaccurate,
it pertained to
objections regarding height restrictions and building lines which
proved to be unsupported by the facts.
20
In the Supreme Court of Appeal
[22] After the matter had been argued in the High Court, this Court
handed down its judgment in
Walele v City of Cape Town and
Others
,
21
to which I shall presently return. Pertinent at this stage, however,
is that
Walele
decided issues turning on: (a) section
7(1)(b)(ii)(ccc) of the Building Act which deals with the refusal of
a building plan on
the basis that the proposed building will
derogate from the value of neighbouring properties; and (b) the
requirements of an
adequate “recommendation” by the
building control officer in terms of section 7(1) of the Building
Act.
22
When the applicants reached the Supreme Court of Appeal they
accordingly added two
Walele
strings to their bow. Apart from
relying on the same grounds of review as in the High Court, they
also contended: (a) that the
City had failed to pay due regard to
their objections based on the derogation in the value of the second
applicant’s property;
and (b) that Mr Moir had failed to
furnish the decision-maker, Mr Holden, with a proper recommendation,
particularly with regard
to the negative effect of the proposed
building on neighbouring properties as required by section 7(1)(b)
of the Building Act.
[23]
These new issues were disposed of summarily by the Supreme Court of
Appeal on the basis that no issue relating to the derogation
of
value of joining or neighbouring properties had ever been raised as
a ground of review in the High Court.
23
Had these been raised, so the court held, the respondents may well
have produced a valid answer. What the applicants thus sought
to do,
so the court concluded, was to rely on grounds of review introduced
for the first time on appeal, which were neither raised
in their
papers, nor canvassed at all in the court below. That, the court
held, could not be permitted.
[24] As
to the grounds of review that were relied on by the applicants in
the High Court, the Supreme Court of Appeal agreed,
save for one
exception, with the reasoning and the findings of that court.
24
The exception related to the objection based on section 47 of the
Zoning Scheme Regulations that was raised for the first time
in the
replying affidavits. In the view of the Supreme Court of Appeal, the
High Court should not have refused to consider this
ground on the
basis that it raised issues of fact not properly canvassed on the
papers. On a proper analysis of the dispute raised,
the Supreme
Court of Appeal held, it did not relate to a question of fact but
concerned only the interpretation and application
of statutory
provisions. Furthermore, so the Supreme Court of Appeal held, what
should finally have swayed the High Court to
consider this ground
was the fact that the respondents had dealt with this objection on
its merits and that they did not contend
that they suffered any
prejudice because it had not been raised at an earlier stage.
25
[25] The
Supreme Court of Appeal thus decided to consider the section 47
ground. Yet in doing so it came to the conclusion that
the alleged
infringement of these provisions already appeared in the original
plans that had been approved in February 2005.
Since the objection
was only raised in replying affidavits filed in May 2008, the
Supreme Court of Appeal held, it fell foul
of section 7(1) of the
Promotion of Administrative Justice Act
26
(PAJA). Section 7(1)(b) of PAJA requires that:
“
(1)
Any proceedings for judicial review . . . must be instituted without
unreasonable delay and not later than 180 days after
the date —
. . . .
(b) . . . on which the person
concerned was informed of the administrative action, became aware of
the action and the reasons
for it or might reasonably have been
expected to have become aware of the action and the reasons.”
Consequently
the Supreme Court of Appeal considered whether it should, in the
interests of justice, extend the 180 day period
under section 9(2)
of PAJA.
27
The conclusion it came to was that the delay of more than three
years was inordinate and that, because the reasons advanced by
the
applicants for the delay were insufficient, it should not be
condoned.
28
In
this Court
[26] This brings me to the application for leave to appeal to this
Court. According to well-established principle, an application
for
leave to appeal to this Court must meet two threshold requirements.
29
Firstly, the case must raise a constitutional issue or issues.
Secondly, it must be in the interests of justice that leave to

appeal should be granted, which includes that the appeal must have
some prospects of success. In their endeavour to meet these

requirements, the applicants advanced three grounds:
(a) There is uncertainty about the proper interpretation of section
7(1) of the Building Act in that certain aspects of this
Court’s
decision in
Walele
30
were departed from by the Supreme Court of Appeal in
True Motives
84 (Pty) Ltd v Mahdi and Another
31
and in this case. This uncertainty, so the applicants contended, is
inimical to the principles of sound public administration
and more
particularly to the correct and uniform application of the statutory
provisions involved. A pronouncement by this Court
on the correct
interpretation of section 7(1) is therefore required.
(b) In the light of the interpretation that the Supreme Court of
Appeal attributed to section 7(1) of
PAJA
,
the question arises whether an applicant who has timeously
instituted review proceedings under PAJA within the 180 day period

prescribed by the section, requires condonation under section 9(2)
of the same Act to raise a new ground of review outside the
180 day
period, or whether it can be raised as of right. This question
constitutes a constitutional issue because it results
in a
limitation of both their right to just administration under section
33 of the Constitution and their right of access to
courts in terms
of section 34 of the Constitution.
32
(c) The Supreme Court of Appeal’s rejection of their objection
based on clause D(d) of the title deed conditions amounted
to
condonation of the decision by the City to ignore that title deed
condition. This in turn amounted to a negation of both their
right
to just administration under section 33 and their right to property
in terms of section 25 of the Constitution.
33
Section
7(1)(b) of the Building Act
[27] I start my investigation into the soundness of these
contentions with reference to ground (a) which turns on section 7(1)

of the Building Act. In my view it can be accepted that if the
applicants’ formulation of the issues that were decided
by the
Supreme Court of Appeal in this regard were held to be accurate, the
two requirements for leave to appeal would be met.
Section 7(1) of
the Building Act concerns the exercise of an important public power
and the interpretation of that section, plainly
raises matters of
constitutional import.
34
As to the interests of justice requirement, it seems to follow on
the applicants’ analysis of what the Supreme Court of
Appeal
held, that the difference in interpretation attributed to section
7(1)(b)(ii) by this Court, on the one hand, and the
Supreme Court of
Appeal, on the other, could very well give rise to uncertainty and
inconsistency in the application of an important
regulatory
provision at the level of local government. This could hardly
promote sound and uniform public administration.
[28] Moreover, in seeking to meet the two threshold requirements for
leave to appeal, the applicants further argued that this
Court
should now confirm that the interpretation of section 7(1) of the
Building Act it adopted in
Walele
constitutes binding
authority from which the Supreme Court of Appeal was not entitled to
deviate as it did in
True Motives
and in this case. This
argument raises issues concerning the principle that finds
application in the Latin maxim of
stare decisis
(to stand by
decisions previously taken) or the doctrine of precedent.
Considerations underlying the doctrine were formulated
extensively
by Hahlo and Kahn.
35
What it boils down to, according to the authors, is: “certainty,
predictability, reliability, equality, uniformity, convenience:

these are the principal advantages to be gained by a legal system
from the principle of
stare decisis
.”
36
Observance of the doctrine has been insisted upon, both by this
Court
37
and by the Supreme Court of Appeal.
38
And I believe rightly so. The doctrine of precedent not only binds
lower courts but also binds courts of final jurisdiction to
their
own decisions. These courts can depart from a previous decision of
their own only when satisfied that that decision is
clearly wrong.
Stare decisis
is therefore not simply a matter of respect for
courts of higher authority. It is a manifestation of the rule of law
itself, which
in turn is a founding value of our Constitution.
39
To deviate from this rule is to invite legal chaos.
[29] I am
mindful of the proposition that, when strictly applied, the doctrine
of precedent may inhibit judges in lower courts
from performing
their constitutional duty under section 39(2) of the Constitution.
40
But we do not have to concern ourselves with the effect of section
39(2) on the binding authority of pre-constitutional decisions
41
because
Walele
obviously does not fall into that category. As
to the influence of section 39(2) on post-constitutional decisions
of higher tribunals,
this Court expressed itself in no uncertain
terms when it said:
42
“
It
does not matter . . . that the Constitution enjoins all courts to
interpret legislation and to develop the common law in accordance

with the spirit, purport and objects of the Bill of Rights. In doing
so, courts are bound to accept the authority and the binding
force
of applicable decisions of higher tribunals.
. . . .
High Courts are obliged to
follow legal interpretations of the Supreme Court of Appeal, whether
they relate to constitutional
issues or to other issues, and remain
so obliged unless and until the Supreme Court of Appeal itself
decides otherwise or this
Court does so in respect of a
constitutional issue.”
[30] Of
course, it is trite that the binding authority of precedent is
limited to the
ratio decidendi
(rationale or basis of
deciding) and that it does not extend to
obiter dicta
or what
was said “by the way”. But the fact that a higher court
decides more than one issue in arriving at its ultimate
disposition
of the matter before it does not render the reasoning leading to any
one of these decisions
obiter
, leaving lower courts free to
elect whichever reasoning they prefer to follow. It is tempting to
avoid a decision by higher authority
when one believes it to be
plainly wrong. Judges who embark upon this exercise of avoidance are
invariably convinced that they
are “doing the right thing”.
Yet, they must bear in mind that unwarranted evasion of a binding
decision undermines
the doctrine of precedent and eventually may
lead to the breakdown of the rule of law itself. If judges believe
that there are
good reasons why a decision binding on them should be
changed, the way to go about it is to formulate those reasons and
urge
the court of higher authority to effect the change. Needless to
say this should be done in a manner which shows courtesy and

respect. Not only because it relates to a higher court but because
collegiality and mutual respect is owed to all judicial officers,

whatever their standing in the judicial hierarchy.
[31] Yet,
as I explained at the outset, the question whether the application
based on this ground meets the two threshold requirements
for leave,
is entirely dependent on the accuracy of the applicants’
analysis of what the Supreme Court of Appeal decided.
Emanating from
that analysis, this Court directed the focus of written and oral
argument to the following issues:
(a) Whether the proper interpretation and application of section
7(1) of the Building Act arises in this matter and, if so;
(b) Its proper interpretation and application in the light of this
Court’s judgment in
Walele
and the judgment of the
Supreme Court of Appeal in
True Motives
.
[32] I
find a convenient point of departure for the appraisal of the
applicants’ response to these directions in the wording
of
section 7(1) itself. The relevant part of the section provides:
“
(1)
If a local authority, having considered a recommendation [by the
building control officer] referred to in section 6(1)(a)—
(a) is satisfied that the
application in question complies with the requirements of this Act
and any other applicable law, it
shall . . . grant its approval in
respect thereof;
(b) (i) is not so satisfied; or
(ii) is satisfied that the
building to which the application in question relates—
(aa) is to be erected in such
manner or will be of such nature or appearance that—
(aaa) the area in which it is
to be erected will probably or in fact
be disfigured thereby;
(bbb) it will probably or in
fact be unsightly or objectionable;
(ccc) it will probably or in
fact derogate from the value of adjoining or neighbouring
properties;
(bb) will probably or in fact
be dangerous to life or property,
such local authority shall . .
. refuse to grant its approval in respect thereof and give reasons
for such refusal . . . .”
[33]
Crucial for the evaluation of the applicants’ contentions
rooted in section 7(1) is the appreciation that the difference

between the judgment of this Court in
Walele
and the Supreme
Court of Appeal in
True Motives
is strictly confined to the
interpretation of section 7(1)(b)(ii). What the difference comes
down to is this: according to
Walele
the local authority
cannot approve plans unless it positively satisfies itself that the
proposed building will not trigger any
of the disqualifying factors
referred to in section 7(1)(b)(ii).
43
If in doubt, the local authority must consequently refuse to approve
the plans. According to
True Motives
, on the other hand, a
local authority is bound to approve plans unless it is satisfied
that the proposed building will probably,
or in fact, trigger one of
the disqualifying factors referred to in section 7(1)(b)(ii).
44
If in doubt, the building authority must consequently approve the
plans. The practical implication of the difference appears
to be
this: under
Walele
it is the applicant for approval of the
plans who must satisfy the local authority that the disqualifying
factors do not exist.
Under
True Motives
it is the objector
to the plans who must satisfy the local authority about the positive
existence of the disqualifying factors.
Moreover, while
Walele
imposes an obligation on the local authority to ensure the
absence of the disqualifying factors, no such duty arises from
True
Motives
.
[34] It
follows that the difference between
Walele
and
True
Motives
has no bearing on the interpretation or the application
of section 7(1)(a). Nor does it pertain to the issue of what would
constitute
an adequate recommendation by the building control
officer under section 7(1) on the facts of a particular case. Common
to the
majority and the minority judgments in both
Walele
and
True Motives
was the acceptance that the “recommendation”
is a jurisdictional fact for the decision under section 7(1) and
that
the contents of the recommendation, together with all the other
information at the decision-maker’s disposal, must be
sufficient
to enable him or her to make a proper decision in the
light of all the facts and circumstances of the particular case.
45
[35] The
affidavit filed on behalf of the applicants in support of their
application in this Court, shows an appreciation of all
this when it
is stated by the deponent that:
“
While
the distinction between these cases [
Walele
and
True
Motives
]
is not relevant in the assessment of those objections by the
Appellants made in terms of section 7(1)(a) of the Building
Standards
Act, the distinction is crucial in relation to the
Applicants’ objections in respect thereof, in relation to
section 7(1)(b)(ii)
of that Act.”
[36] That
narrows the enquiry down to this: did the applicants raise any
objection with reference to section 7(1)(b)(ii) of the
Building Act?
The applicants’ contention is that they did. In support of
this contention they rely on the letters of 27
October 2006 and 15
January 2007 by Mr Herman to the City in which the objection was
raised, albeit obliquely, that the building
approved in the
September 2007 plans would derogate from the value of the second
applicant’s property. This objection,
so they say, must be
regarded as having been raised under section 7(1)(b)(ii). The
Supreme Court of Appeal considered this argument
and came to the
conclusion that no objection based on section 7(1)(b)(ii) was ever
raised as a review ground in the applicants’
papers in the
High Court and that their opportunistic attempt – in the wake
of
Walele
– to introduce section 7(1)(b)(ii) as part of
their case on appeal, could not be countenanced.
46
[37] In
this Court the applicants did not claim that they had pertinently
raised derogation of value as a review ground. Yet they
maintained
that they had always raised a section 7(1)(b)(ii) issue as part of
their case. Their argument in support of this claim
went along the
following lines:
In
Mr Herman’s letters to the City he explicitly raised the
potential derogation in the value of second applicant’s

property as a ground of objection to the September 2007 plans.
This
ground of objection must be understood to be based on section
7(1)(b)(ii).
One
of the review grounds pertinently relied upon from the start, so
the applicants contended, was that Mr Moir’s recommendation

was inadequate and misleading in that it had failed to inform the
decision-maker, even in summary, of all the objections raised
by
the applicants.
This
must be understood to include their objection based on section
7(1)(b)(ii).
In
this way, so the applicants’ argument concluded, derogation
of value, which is a section 7(1)(b)(ii) issue, had been
introduced
as part of their case.
[38] I do
not agree with this line of reasoning. The flaw lies in the
assumption that derogation of value of neighbouring property
is
always a section 7(1)(b)(ii) issue. This is not so. “Value”
must, in the context of section 7(1)(b)(ii), be understood
as
“market value”. Traditionally market value is said to be
the price that an informed buyer will pay an informed
seller, both
of them having regard to all the potential risks – both
realised and unrealised – pertaining to the
subject property.
47
One of the unrealised risks that the hypothetical parties will
contemplate is that a neighbouring property, unimproved at the
time
of valuation, might be built upon, or even when built upon, might be
replaced by a new building which may, for example,
be more
obstructive to the view enjoyed from the subject property. This will
be of particular relevance in a case where the view
from the subject
property is of special import. That is why a property fronting
directly on the ocean is generally worth substantially
more than the
property behind it, even when neither has been developed. While the
latter bears the risk of being deprived of
its view, the former does
not.
[39] As a
counterbalance to the risk that a new building may be more intrusive
or render the subject property less attractive,
the hypothetical
buyer will have regard to the consideration that the new building
will be constrained by the restrictions imposed
by the Town Planning
Scheme, the Zoning Scheme Regulations, the title deed conditions and
so forth. The realisation of a risk
already discounted will
generally not have an influence on the market price. In consequence,
the fact that a new building is
then erected on the neighbouring
property which interferes with previously existing attributes of the
subject property, will
not, in itself, be regarded as derogating
from the value of the latter. This is so long as the new building
complies with the
restrictions imposed by law.
[40]
Derogation from market value, therefore, only commences: (a) when
the negative influence of the new building on the subject
property
contravenes the restrictions imposed by law; or (b) because the new
building, though in accordance with legally imposed
restrictions,
is, for example, so unattractive or intrusive that it exceeds the
legitimate expectations of the parties to the
hypothetical sale. In
(a) the cause of the depreciation will flow from a non-compliance
with section 7(1)(a). It is only in the
event of (b) that section
7(1)(b)(ii) comes into play.
[41]
This, as I understand the applicants’ letters of objection, is
how they also saw the position at the time. Though they
complained
about the derogation from the value of the second applicant’s
property that would result from the proposed building
that complaint
was directly linked to their objections under section 7(1)(a), ie
that the planned building would contravene the
height restrictions
of the Zoning Scheme Regulations and the setback requirements of the
title deed conditions. I believe this
is well illustrated in the
letter of objection by Mr Herman on behalf of both applicants, dated
27 October 2006 when he said:
“
The
approval of these building plans with their reliance on a fictitious
and unattainable finished level of the ground abutting
the façade
of the building would permit the retention of the currently illegal
building when the height of the façade
would exceed the 10 m
limitation (by some 2 m) were it not for the contrived and
unattainable raised ground level which is depicted
on the plans.
That is, the unlawfully constructed three storey building achieves,
and would retain, a physical height of one
storey higher than the
legitimate expectations of the owners of adjoining and neighbouring
properties.
We accordingly submit that the
building in question ‘ . . . is to be erected’ . . . in
such a manner that it will
be . . . undesirable and will . . .
derogate from the value of adjoining and neighbouring properties,
and that the Council is
therefore compelled to reject the building
plan application by virtue of the provisions of section 7(1)(b) of
the [Building Act]”.
[42] As I
see it, the same can be said about the letter of 15 January 2007.
The whole tenor of the complaint is that the execution
of the
September 2007 plans would result in an evasion of the height
restrictions imposed by the Zoning Scheme Regulations through
the
mechanism of structures which would, in turn, contravene the title
deed conditions of the property. Right at the end of the
letter Mr
Herman referred to the derogation of the value of the neighbouring
properties that would allegedly follow. In support
of this
allegation, he relied on the affidavit by a sworn valuer, Mr J P van
der Spuy, annexed to the letter. In his affidavit,
Mr Van der Spuy
referred to the significant contribution of an uninterrupted view to
the value of seaside properties in general
and to the value of the
second applicant’s property in particular. Departing from this
premise he then pointed out that
the “current structure”
of the new building would have a severe impact on the panoramic view
previously enjoyed from
the second applicant’s property and
therefore on its price. What Mr Van der Spuy did not say, is why he
would regard that
interference with the view as unwarranted. A
reason that would best accord with the tenor of the applicants’
objections
would, however, flow from the fact that the “current
structure” of the building offends against the legally imposed

restrictions.
[43] In
short, though the objection regarding the alleged derogation of
value is tagged with section 7(1)(b)(ii), it is in reality
a section
7(1)(a) objection propped up by the argument that the alleged
contravention of legally imposed restrictions will result
in a
derogation of the second applicant’s property value. What sets
the seal on my understanding as the true import of
Mr Herman’s
letters is the fact that the applicants, in their papers before the
High Court, never even once referred to
any derogation of value. Not
even once did they suggest that, apart from their objections under
section 7(1)(a), they wanted
to raise a derogation from value
objection under section 7(1)(b)(ii). The affidavit by Mr Van der
Spuy was not even mentioned.
As I see it, the only reasonable
inference to be drawn from all this, is that even the applicants
themselves never thought that
they had raised a section 7(1)(b)(ii)
objection, separately from their objections about the legality of
the impugned plans under
section 7(1)(a).
[44] It
follows that the applicants’ attempt to dress up their case as
one under section 7(1)(b), for the first time on
appeal to the
Supreme Court of Appeal, was nothing more than an attempt to bring
themselves within the
Walele
judgment. What is more, had the
complaint been squarely raised on the applicants’ papers that
they had relied on section
7(1)(b)(ii) in their letters of
complaint, and that Mr Moir had failed to convey that objection to
the decision-maker, Mr Holden,
these two officials would have been
obliged to respond. Absent any allegation to that effect, we don’t
know what answer
they might have given. I therefore find that
section 7(1)(b)(ii) never formed part of the applicants’ case
until they sought
to introduce it for the first time on appeal to
the Supreme Court of Appeal.
48
[45] This
would have been the end of the applicants’ case under the
rubric of the difference between
Walele
and
True Motives
,
but for another line of argument introduced by the applicants’
counsel in this Court. It essentially went as follows:
Even
on the assumption that the complaints raised in their letters of
objection to the City all related to an alleged non-compliance
with
section 7(1)(a), their case has always been that the memorandum by
the building control officer, Mr Moir, to the decision-maker,
Mr
Holden, did not contain a fair and accurate summary of their
objections to the plans.
What
this amounted to, so the applicants contended, was a complaint that
the memorandum did not meet the standards of an adequate

recommendation as required by section 7(1).
This
complaint, so the applicants’ argument concluded, rendered
the issues in their case indistinguishable from those
raised in
Walele
.
49
[46] As I
see it, this whole line of argument misses the point. Under the
present rubric the question is whether this case raises
the
different interpretations afforded to section 7(1)(b)(ii) in
Walele
,
on the one hand, and
True Motives
, on the other. That has
nothing to do with the question of fact whether or not the
recommendation in this case was adequate to
enable the
decision-maker, Mr Holden, to make an informed decision. Whether the
same question of fact arose in
Walele
or
True Motives
or both, is equally irrelevant in the present context. In this case
the question of fact had been squarely raised by the applicants
and
answered against them by both the High Court and the Supreme Court
of Appeal.
50
What counsel’s contention therefore amounted to was that it
will be in the interests of justice for this Court to embark
upon
the same factual enquiry, exclusively relevant to this case. For
reasons I find self-evident, that contention cannot be
sustained.
[47]
Coming back to the issues on which this Court required the parties
to direct their focus, I believe that the analysis of
the
applicants’ argument shows that:
Though
the application of section 7(1)(a) of the Building Act arose in
this matter, section 7(1)(b)(ii) did not.
Since
the difference between
Walele
and
True Motives
is
strictly confined to section 7(1)(b)(ii), that difference does not
arise in this case.
Even
on the assumption that that difference raises a constitutional
issue, it is therefore not necessary nor in the interests
of
justice for this Court to revisit its interpretation of section
7(1)(b)(ii) in
Walele
for purposes of this case.
By
the same token it is neither necessary nor in the interests of
justice for this Court to consider, for purposes of this matter,

whether the majority of the Supreme Court of Appeal in
True
Motives
was right in concluding
51
that this Court’s interpretation of section 7(1)(b)(ii) in
Walele
did not form part of its
ratio decidendi
in
that case and was therefore
obiter
.
Section
7(1) of PAJA
[48] This
brings me to that part of the application which rests on the Supreme
Court of Appeal’s interpretation of section
7(1) of PAJA. The
question arising under this heading was crystallised by this Court’s
directions which required argument
on the following issue:
“
[T]he
proper interpretation and application of section 7(1) of [PAJA] in
relation to the applicants’ challenge of the alleged

contravention of section 47 of the applicable Zoning Scheme
Regulations.”
[49] To
regain perspective, it will be recalled that the decision to approve
the impugned plans was taken by the City in September
2007 and that
the review application was launched just over one month later in
October 2007. There is no suggestion that there
was any unreasonable
delay in the bringing of the review application. In any event, it is
clear that it was launched well within
the 180 day period
contemplated in section 7(1) of PAJA.
52
The provisions of the section arose with reference to the fact that
the applicants had raised a new ground of review, based on
section
47 of the Zoning Scheme Regulations, for the first time in their
replying affidavits which were filed in May 2008. The
City objected
to this additional ground on the basis of the trite principle that
it was impermissible to introduce new matters
in reply. The
applicants’ explanation for doing so was, inter alia, that the
provisions of section 47 were only brought
to their notice in the
course of investigations and preparations for compiling their
replying affidavits. The High Court found
this explanation wanting
and agreed with the objection raised by the City.
53
[50] The
Supreme Court of Appeal held, however, that the High Court should
not have refused to entertain the section 47 ground
solely on the
basis that it was raised for the first time in reply. The new
ground, so the Supreme Court of Appeal held, raised
no issue of
fact. It concerned only the interpretation and application of a
statutory provision. In consequence, so the Supreme
Court of Appeal
concluded, the respondents would not have been prejudiced if the
High Court had entertained the new ground.
54
Yet, the Supreme Court of Appeal also refused to consider the merits
of the section 47 ground. It did so because it decided that
the
introduction of this ground for the first time in May 2008,
constituted a contravention of the 180 day limitation in terms
of
section 7(1) of PAJA and refused to allow an extension of that
limitation under section 9(2) of the same Act.
55
[51]
There can be no doubt that the issue raised by the applicants under
section 7(1) of PAJA is of a constitutional nature. The
degree of
confidence with which this statement is made derives from this
Court’s decision that the interpretation and application
of
PAJA – on which the challenged decision of the Supreme Court
of Appeal turned – will always constitute constitutional

matters because PAJA had been enacted to give content to the
constitutional right to just administrative action enshrined in

section 33 of the Constitution.
56
This holds true even where the outcome of the issue raised under
PAJA depends on the determination of factual disputes.
57
The question is, however, whether it will be in the interests of
justice to hear the appeal on this ground. As I see it that
would
mainly depend on whether the appeal on this ground has some
prospects of a successful outcome. The latter question in turn

requires an investigation into the correctness of the Supreme Court
of Appeal’s decision on the facts that the applicants’

introduction of the section 47 ground in May 2008 constituted a
contravention of the 180 day limitation in section 7(1) of PAJA.
[52] The
nub of the applicants’ objection to the Supreme Court of
Appeal’s decision appears in their heads of argument:
“
. . .
[t]he
mero
motu
raising
of section 7(1) of PAJA by the [Supreme Court of Appeal] and its
consideration of a notional application for the extension
of the 180
day time frame in respect thereof related only to one additional
ground of review which was introduced into an extant
application for
review in the replying affidavits thereof, and not to the
institution of those review proceedings
per
se.
”
[53] As appears from the statement, the applicants’ argument
sought to introduce two separate questions of principle. Firstly,

whether it was permissible for the Supreme Court of Appeal to
introduce a contravention of the 180 day limitation in section
7(1)
of PAJA,
mero motu
. Secondly, whether the 180 day limitation
applies to the introduction of a new ground of review into an
existing application
for review which had been brought timeously. As
to the first question, there is authority for the proposition in
Mamabolo v Rustenburg Regional Local Council
58
that at common law it is open to a court to raise the issue of
inordinate delay in bringing a review application
mero motu
.
As I see it this is in accordance with the established principle
that courts have the power, as part of their inherent jurisdiction

to regulate their own proceedings, to refuse a review application if
the aggrieved party was guilty of unreasonable delay in
initiating
the proceedings.
59
I can think of no reason in principle why this should not be the
position under the Constitution and PAJA as well.
[54] Of
course, similarly to what was held in
Mamabolo
, a court will
only raise section 7(1) of PAJA of its own accord where the delay is
manifestly inordinate and even then, only
when the applicant had
been given an opportunity to explain the delay.
60
In this case, the applicants not only had an opportunity to do so,
but in fact attempted to explain their delay, albeit in an
endeavour
to justify their belated introduction of a new ground of review, in
reply. On the Supreme Court of Appeal’s appraisal
of the
facts, to which I shall presently return, the delay amounted to a
period of more than three years, which was clearly inordinate.
61
[55] As
to the second question the applicants seek to introduce, they
contended that an interpretation of section 7(1) of PAJA
that
prevents the introduction of a new ground of review – outside
the 180 day period – into an extant application
for review
which was timeously brought, would constitute an undue restriction
of their rights under both section 33 and section
34 of the
Constitution. In support of this contention they referred to the
fact that an applicant for review may very well find
a new ground,
for the first time, in the record of the challenged decision filed
after the review application had been brought,
or even from the
answering affidavits filed on behalf of the decision-maker. This, so
the argument went, may very well occur
after the 180 day period in
section 7(1) of PAJA had elapsed, although the application itself
had been brought within that period.
[56] As
far as it goes, there appears to be some merit in the applicants’
argument. I believe, however, that the argument
stems from a
misunderstanding of what the Supreme Court of Appeal held. The
Supreme Court of Appeal did not hold that a new ground
of review
cannot be introduced into an existing application after 180 days.
What it did find was that, on a proper analysis of
the facts, the
applicants’ section 47 ground was aimed at a decision that had
already been taken in February 2005 and not
at a decision which was
taken in September 2007. That appears, I believe, from the following
passage in the judgment of the Supreme
Court of Appeal:
“
The
infringement that is now complained of appeared on the original plan
that was approved in February 2005. Yet the challenge
was raised for
the first time by the appellants more than three years later in the
replying affidavits that were filed in May
2008.”
62
[57]
Whether or not the Supreme Court of Appeal was correct in its
approach, first raises the issue regarding the interpretation
of
section 7(1)(b) of PAJA. In terms of the section, the 180 day period
starts to run when the “person concerned . . .
became aware of
the action and the reasons for it”. Before “the action”
nothing happens. In the final analysis
it is awareness of “the
action” that sets the clock ticking. That raises the question:
what “action”
did the legislature have in mind? The
answer, I think, is the “administrative action”, and
according to the definition
of that term in PAJA, “the
decision” that is challenged in the review proceedings. What
that decision entails, is
a question that cannot be answered in the
abstract. It must depend on an evaluation of the facts.
[58] As
to the facts of this case, it will be remembered that the objection
which the applicants sought to raise under section
47 of the Zoning
Scheme Regulations was based on the allegation that the building was
too close to the Blinkwater Road boundary.
But it is common cause
that the “footprint” of the building, predominantly its
setback from the boundary concerned
had been established and
approved as part of the original plans in February 2005. Likewise it
is common cause that construction
commenced on the basis of that
approval in March 2005 which was also the time when the applicants
became aware of the details
of the original plans and when they
complained about several aspects, the footprint not being one of
them. In September 2005,
rider plans were approved. Applicants
challenged that approval but did not object to the legality of the
footprint of the building.
In May 2006, further rider plans were
submitted for approval. The applicants objected to those plans in
two lengthy letters in
which various detailed complaints were
raised, but on neither occasion did they challenge the legality of
the footprint. In September
2007 these further rider plans were
approved. That, as we know, is the decision that the applicants took
on review. In the circumstances,
it would be safe to assume that in
the absence of any objection against the footprint since February
2005 the officials of the
City had no reason to revisit the
footprint issue when they considered the September 2007 plans, nor
was it suggested on the
papers that they did. This is how I
understand the reasoning of the Supreme Court of Appeal that led to
its conclusion that the
footprint issue had been decided in February
2005 and not in September 2007.
[59] In
support of the argument that the Supreme Court of Appeal had erred
in arriving at that conclusion, counsel for the applicants
relied on
a hypothetical case. As I understood the example it went as follows:
Plan A is passed despite the fact that it contains
an unlawful
element. It is then challenged and set aside on the basis of that
unlawful element. More than a 180 days later plan
B is presented
which contains the same unlawful element and it is again approved.
Can it be suggested, so counsel for the applicants
rhetorically
asked, that plan B could not be challenged on that ground because it
fell foul of the 180 days provision?
[60] In
response, counsel for the City relied on the following notional case
of their own. Let us assume, they contended, that
30 years ago Ms
Harrison applied for building approval under the Building Act and
approval was granted. Assume that the approval
was incorrectly
granted as the building was insufficiently set back from the road in
terms of section 47 of the Zoning Scheme
Regulations. Assume that 30
years ago Ms Harrison proceeded to erect the building. Assume
further that Mr Herman was her neighbour
at that time but did
nothing to challenge the approval. Now assume that in 2010, Ms
Harrison applied for further building approval
which was also
granted. Assume that this time Mr Herman challenged it on review.
Could it be argued, so counsel for the City
rhetorically asked, that
Mr Herman should be permitted to raise as of right the incorrect
granting of approval in 1980, contrary
to section 47 of the Zoning
Scheme Regulations?
[61] Both
hypotheticals are removed from the facts of this case. What they do
illustrate, however, is that in applying section
7(1) of PAJA the
question as to what ‘decision’ is being challenged, is
one of fact. Undoubtedly that question can
sometimes be difficult to
answer, particularly because review proceedings are often directed
at composite decisions. But it remains
a question of fact.
[62]
During argument counsel for the applicants also seemed to make
something of the fact that the September 2007 plans were presented

as a rider to the February 2005 plans and that the former therefore
depended on the validity of the latter. I accept that that
is so.
The conclusion that an attack on the former must consequently be
understood to be an automatic attack on the latter, however,
is a
non sequitur
. As was explained in
Oudekraal Estates (Pty)
Ltd v City of Cape Town and Others
,
63
administrative decisions are often built on the supposition that
previous decisions were validly taken and unless that previous

decision is challenged and set aside by a competent court, its
substantive validity is accepted as a fact. Whether or not it
was
indeed valid is of no consequence. Applied to the present facts this
means that the approval of the February 2005 plans must
be accepted
as a fact. If the footprint issue was part of that approval, that
decision must likewise be accepted as a fact unless
and until it is
validly challenged and set aside.
[63] The
conclusion arrived at by the Supreme Court of Appeal on the facts
was that the applicants’ challenge of the footprint
decision
must be understood as an attack on the approval of the February 2005
plans. Despite the applicants’ arguments
to the contrary I
remain unpersuaded that that conclusion was wrong. Reverting to the
question at which this Court directed the
argument under this
heading, I therefore find that neither the Supreme Court of Appeal’s
interpretation of section 7(1)
of PAJA, nor its application of the
section to the applicants’ introduction of the section 47
ground, can be faulted. It
follows that the application for leave to
appeal on this ground must fail because it bears no prospects of
success.
The
title deed conditions
[64] The
final basis on which the applicants sought to motivate their
application for leave to appeal turned on the restriction
in clause
D(d) of the title deed conditions of the property:
“
That
no building or structure or any portion thereof, except boundary
walls and fences, shall be erected nearer than 3,15 metres
to the
street line which forms a boundary of this erf.”
[65] At
the heart of the applicants’ argument under this heading was
their contention that the wall on the Blinkwater Road
boundary of
the property, as depicted on the September 2007 plans, constituted a
contravention of clause D(d), which the City
unlawfully ignored and
that the Supreme Court of Appeal effectively condoned this unlawful
conduct by rejecting their complaint.
[66]
Again I am of the view that the applicants’ contention raises
a constitutional matter. At face value the contention
relies on both
the protection of property rights under section 25 and the right to
just administrative action under section 33
of the Constitution read
with PAJA. The latter, as I have said earlier, is per se a matter of
constitutional import. What is
more, if the Supreme Court of Appeal
were wrong in its factual findings on this issue, the applicants
would have wrongly been
deprived of an opportunity to advance the
contention that the action of the City “contravene[d] a law”
as contemplated
in section 6(2)(f)(i) of PAJA.
64
This, as I see it, would render it in the interests of justice that
this Court should decide the issue on appeal, subject to
prospects
of success.
[67]
Flowing from the way in which the applicants formulated their
contention, this Court directed that argument be presented
on the
following issue:
“
The
nature of the restrictive conditions in clause [D(d)] of the title
deed and whether a contravention of those conditions, if

established, could lawfully be approved by [the City] in relation to
the impugned development.”
[68] The
applicants’ argument in response to these directions departed
from the premise that the City unlawfully ignored
a contravention of
clause D(d), which unlawful conduct had in turn been condoned by the
Supreme Court of Appeal. As I see it,
a proper evaluation of the
applicants’ argument therefore calls for an antecedent enquiry
into the accuracy of their contentions
as to what the City decided
and what the Supreme Court of Appeal held. In support of their
contentions in this regard the applicants
relied on the decision by
Meer J in the interdict proceedings that some of the boundary walls
on the September 2005 plans were
in fact retaining walls which
constituted structures in contravention of clause D(d). It is clear,
however, that the wall deliberated
upon by the Supreme Court of
Appeal was a different one. While Meer J was dealing with walls on
the Geneva Drive boundary of
the property,
65
the Supreme Court of Appeal dealt with a wall on the Blinkwater Road
side.
66
In the present context, the contrast between these different walls
resulted from the fact that the property slopes steeply from

Blinkwater Road in the east to Geneva Drive its northern and western
sides so that, while on Geneva Drive the property is higher
than
street level, it is below the street level on Blinkwater Road.
[69] The
September 2005 plans which Meer J considered contemplated boundary
walls on Geneva Drive that would serve as retaining
walls for
structures and compact soil on the property. In deciding that these
walls constituted “structures” that
contravene title
deed clause D(d), Meer J relied
67
on the following succinct statement by Grosskopf J in
BEF (Pty)
Ltd v Cape Town Municipality and Others
:
68
“
In
ordinary parlance . . . ‘boundary wall’ means, in my
view, a wall which encloses an open area. In particular I
do not
consider that a wall which forms the side of a building, or a
retaining wall, would be described as a boundary wall even
if such
walls happen to be positioned on the boundary of the site.”
[70] On
the September 2007 plans the walls on Geneva Drive no longer
performed a retaining function because the structures behind
them
had been removed. The only boundary wall that still performed a
retaining function was the one on Blinkwater Road where,
as we know,
the street level is higher than the level of the property. All this
wall therefore retained was a footpath on municipal
land. On these
facts the City decided that this wall did not infringe the
restriction in the title deed clause D(d). The Supreme
Court of
Appeal agreed with this decision. Relying on the same statement by
Grosskopf J in
BEF
it said apropos the Blinkwater Road wall:
69
“
It
merely performs a boundary function as it encloses an open space,
which is permitted by the restriction, and benefits the municipality

on a portion of the latter’s land external to the property. It
seems inconceivable that this was the contemplated target
of the
restriction and I can find no transgression of the provisions of
clause D(d).” (Footnote omitted.)
[71] The
decision by the City, which was endorsed by the Supreme Court of
Appeal, was therefore that on a proper construction
of title deed
clause D(d) the Blinkwater Road wall did not contravene the clause.
The City never decided to ignore clause D(d),
nor did the Supreme
Court of Appeal condone any decision to that effect. The short
answer to the applicants’ objection
against the Supreme Court
of Appeal’s finding in this regard is therefore that it
departed from the wrong premise.
[72] But
the applicants further contended that both the City and the Supreme
Court of Appeal had erred in its factual finding
that the Blinkwater
Road wall did not contravene clause D(d). In support of this
contention they argued that clause D(d) draws
no distinction between
a retaining wall which retains ground on the property and a
retaining wall which retains ground outside
the property. As I see
it, however, the argument is flawed. Clause D(d) does not refer to a
“retaining wall” at all.
It distinguishes between
“boundary walls” and other structures. While boundary
walls are permitted closer than 3,15
metres from the street line,
other structures are not. However, as in this case, the problem
often arises in practice to establish
whether a wall on the boundary
which also performs other functions should be regarded as the one or
the other. The test formulated
by Grosskopf J in
BEF
, that
the applicants subscribe to – in my view rightly so –
was aimed at resolving this practical difficulty. On
the application
of this test I agree with the Supreme Court of Appeal, for the
reasons it had given, that the wall on Blinkwater
Road was indeed a
boundary wall which did not contravene clause D(d).
[73] In
this light, I think the questions at which this Court directed
argument should therefore be answered thus:
(a) A contravention of the restrictive condition in clause D(d) has
not been established.
(b) Questions as to the exact legal nature of the restriction and
whether its contravention can be lawfully ignored by the City,

therefore do not arise.
[74] In
the result, the application for leave to appeal on this ground must
fail for lack of prospects of success.
Conclusion
[75] The
overall conclusion I arrive at is therefore that the application for
leave to appeal must be refused on all three grounds
because the
interests of justice requirement has not been satisfied.
[76] As
to the question of costs, I see no reason why the applicants should
not bear the costs of these proceedings. As the applicants’

counsel quite rightly argued, the rule in constitutional matters is
that an unsuccessful party is not ordinarily ordered to pay
costs,
lest litigants be discouraged from asserting their constitutional
rights.
70
We now know, however, that this is in reality a property dispute
between two neighbours.
71
It is also true that the first applicant is to some extent a public
interest organisation. Yet it allowed itself to be drawn
into a
dispute between two neighbouring property owners and it now has to
bear the consequences of that decision. Though I do
not wish to cast
any aspersions on the motives of either applicant, it is a well
known principle that good intentions per se
do not afford protection
against an adverse costs order.
72
Order
[77] For
these reasons the following order is made:
(a) The application for leave to appeal is dismissed.
(b) The first and second applicants are ordered, jointly and
severally, to pay the costs of the first and second respondent
incurred in these proceedings, in both instances including the costs
of two counsel.
Ngcobo
CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concur in
the
judgment of Brand AJ.
Counsel for the Applicants: Advocate DF Irish SC and Advocate IC
Bremridge instructed by Abe Swersky & Associates.
Counsel for the First Respondent: Advocate HP Viljoen SC and Advocate
JC Marais instructed by Kritzinger & Company.
Counsel for the Second Respondent: Advocate G Budlender SC and
Advocate K Pillay instructed by Abrahams & Gross Inc.
1
Per
Maya JA with Navsa, Nugent, Van Heerden and Mlambo JJA concurring.
The judgment has since been reported as
Camps Bay Ratepayers’
and Residents’ Association v Harrison
[2010] 2 All SA 519
(SCA).
2
32
of 2000.
3
2008
(3) SA 633
(C) (reported judgment).
4
Id
at para 11.1.
5
In
terms of the provisions of section 18(3) of the Townships Ordinance
No. 33 of 1934 (Cape).
6
Above
n 3 at para 11.2.
7
Approved
by the then Administrator of the Cape in terms of section 9(2) of
the Land Use Planning Ordinance 15 of 1985 (Cape) and
published as
the Municipality of the City of Cape Town: Zoning Scheme: Amended
Scheme Regulations (Zoning Scheme Regulations)
in the
Provincial
Gazette
4649 of 29 June 1990 and not the
Provincial Gazette
4684 of 1 March 1991 as indicated in the reported judgment above
n 3 at para 11.2 and in the Supreme Court of Appeal judgment above
n
1 at para 8 n 4.
8
Above
n 3 at paras 62-77.
9
Above
n 3 at paras 78-97.
10
The
Full Bench of the High Court subsequently held in
Reader and
Another v Ikin and Another
2008 (2) SA 582
(C) at para 32 that
the mechanism created by section 62 of the Systems Act was only for
the benefit of an aggrieved applicant
who had failed to secure the
permission sought and was therefore not available to objecting
neighbours and other third parties.
This decision was later
confirmed by the Supreme Court of Appeal in
City of Cape Town v
Reader and Others
[2008] ZASCA 130
;
2009 (1) SA 555
(SCA). As indicated, these
decisions did not, however, deter the parties in this matter from
their approach that the September
2005 plans were validly set aside
by the decision in the section 62 appeal. In consequence, it is
unnecessary to touch on the
correctness of these decisions in this
case.
11
The
Camps Bay Ratepayers’ and Residents’ Association and
Another v Gerda Yvonne Ada Harrison and Others
, Case No.
15113/2007;
The Camps Bay Ratepayers’ and Residents’
Association and Another v Gerda Yvonne Ada Harrison and Others
,
Case No. 9470/2006, 25 July 2008, unreported. The first case
concerns a review application and the second concerns a demolition

application, however, by agreement of the parties and by order of
the Judge President, the cases were heard together. Because
the
review application was unsuccessful the demolition application fell
away.
12
103
of 1977.
13
See
[32] below for section 7(1) of the Building Act, which is the only
relevant subsection for present purposes.
14
See
for example
President of the Republic of South Africa and Others
v South African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para 168 and
Paola
v Jeeva NO and Others
[2003] ZASCA 100
;
2004 (1) SA 396
(SCA) at para 11.
15
Section
28(4) of the Building Act permits “any local authority . . .
[to] delegate any power conferred upon it by or under
this Act,
other than a power referred to in section 5 . . . to any person in
its employ. . . .”
16
See
above n 7.
17
See
the wording of section 47(3) of the Zoning Scheme Regulations above
[17].
18
Above
n 11 at paras 66-7.
19
Id
at paras 42-61.
20
Id
at paras 75-8 and 87-8.
21
[2008]
ZACC 11
;
2008 (6) SA 129
(CC);
2008 (11) BCLR
1067
(CC).
22
Id
at paras 9 and 22.
23
Above
n 1 at paras 19-21.
24
Id
a
t paras 24-30 and 36-46.
25
Id
at p
aras 44-6.
26
3
of 2000. See above n 1 at paras 52-5.
27
The
relevant part of this section provides:
“
(1) The period of—
. . . .
(b) 90 days or 180 days referred to in sections 5 and 7
may be extended for a fixed period, by agreement between the parties
or,
failing such agreement, by a court or tribunal on application by
the person or administrator concerned.
(2) The court or tribunal may grant an application in
terms of subsection (1) where the interests of justice so require.”
28
Above
n 1 at paras 52-
62.
29
See
for example
Walele
above
n 21 at para 14-5.
30
Id
at paras 16-7.
31
2009
(4) SA 153
(SCA).
32
Section
33 provides:
“
(1) Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair.
(2) Everyone whose rights have been adversely affected
by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect
to these rights, and must—
(a) provide for the review of administrative action by
a court or, where appropriate, an independent and impartial
tribunal;
(b) impose a duty on the state to give effect to the
rights in subsections (1) and (2); and
(c) promote an efficient administration.”
Section
34 provides:
“
Everyone has the right to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
33
Section
25(1) of the Constitution provides: “No one may be deprived of
property except in terms of law of general application,
and no law
may permit arbitrary deprivation of property.”
34
See
for example
Bato Star Fishing (Pty) Ltd
v Minister of Environmental Affairs and Others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7)
BCLR 687
(CC) at para 25.
35
Hahlo
& Kahn
The South African Legal
System and its Background
(Juta, Cape
Town 1968) 214-5, referred to with approval in
Ex
Parte Minister of Safety and Security and Others: In Re S v Walters
and Another
[2002] ZACC 6
;
2002 (4) SA
613
(CC);
2002 (7) BCLR 663
(CC) at para 57 and in
Afrox
Healthcare Bpk v Strydom
2002 (6) SA
21
(SCA) at para 30.
36
Hahlo
& Kahn
id (Footnotes omitted).
37
See
for example
Gcaba v Minister for Safety
and Security and Others
[2009] ZACC
26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) at paras 58-62;
Daniels v Campbell NO and Others
[2004]
ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC) at paras 94-5;
Van der Walt v Metcash Trading Ltd
[2002] ZACC 4
;
2002 (4) SA 317
(CC);
2002 (5) BCLR 454
(CC) at para 39 and
Walters
above n 35 at
paras
55-61.
38
See
for example
True Motives
above
n 31 at paras 100-7 and
Afrox
Healthcare
above n 35 at
paras
26-33.
39
Section
1(c) of the Constitution.
40
Section
39(2) provides: “When interpreting any legislation, and when
developing the common law or customary law, every court
. . . must
promote the spirit, purport and objects of the Bill of Rights.”
41
Which
was the subject of consideration in
Afrox
Healthcare
above n 35 at paras 27-30.
42
Walters
above n 35 at paras 60-1.
43
Walele
above n 21 at para 55.
44
True
Motives
above n 31 at para 21.
45
Compare
Walele
above
n 21 at para 5 (description of the “recommendation” in
that case), paras 59-72 (reasoning of the majority),
and paras 118-9
(reasoning of the minority) with
True
Motives
above n 31 at paras 39-57
(Heher JA, reasoning for the majority) and para 91 (Jafta JA,
reasoning for the minority).
46
Above
n 1 at p
aras 19-21.
47
Compare
True Motives
above n 31 at p
ara 30.
48
Above
n 1 at p
aras 19-21.
49
In
support of this contention they referred to
Walele
above n 21 at paras 55-63.
50
See
above n 1 at paras 24-30.
51
See
True Motives
above
n 31 at paras 35-7 (Heher JA) and 113-7 (Cameron JA concurring).
Compare the dissenting judgment of Jafta JA at paras 85-90.
52
Section
7(1) of PAJA provides:
“
Any proceedings for judicial
review in terms of section 6(1) must be instituted without
unreasonable delay and not later than
180 days after the date—
subject to subsection (2)(c), on which any proceedings
instituted in terms of internal remedies as contemplated in
subsection
(2)(a) have been concluded; or
where no such remedies exist, on which the person
concerned was informed of the administrative action, became aware
of the action
and the reasons for it or might reasonably have been
expected to have become aware of the action and the reasons.”
53
Above
n 11 at paras 62-7.
54
Above
n 1 at paras 44-6.
55
Id
at paras 52-62.
56
Above
n 34. See also
Alexkor Ltd and Another v The Richtersveld
Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003
(12) BCLR 1301
(CC) at para 23, in relation to the
Restitution of
Land Rights Act 22 of 1994
.
57
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at paras 51-2.
58
[2000] ZASCA 133
;
2001
(1) SA 135
(SCA) at para 10. See also
Scott
and Others v Hanekom and Others
1980
(3) SA 1182
(C) at 1192E-1194A.
59
See
for example
Associated Institutions
Pension Fund and Others v Van Zyl and Others
2005
(2) SA 302
(SCA) at paras 47-8.
60
See
above n 58.
61
In
my view this renders this case distinguishable from
Eskom
Holdings Ltd and Another v New Reclamation Group (Pty) Ltd
2009
(4) SA 628
(SCA) – which the applicants sought to rely on –
in which it was held that the delay was not such as to require an

explanation (see specifically paras 15-7 of that judgment).
62
Above
n 1 at p
ara 52.
63
2004
(6) SA 222
(SCA) at para 31.
64
Section
6(2)
of PAJA provides:
“
A court or tribunal has the
power to judicially review an administrative action if—
. . . .
(f) the action itself—
(i) contravenes a law or is not authorised by the
empowering provision”.
65
Above
n 3 at paras 63-5.
66
Above
n 1 at paras 36-7.
67
Above
n 3 at paras 72-3.
68
1983
(2) SA 387
(C) at 396F-G.
69
Above
n 1 at p
ara 37.
70
See
for example
Dikoko v Mokhatla
[2006]
ZACC 10
; 2006 (6) 235 (CC);
2007 (1) BCLR 1
(CC) at para 103 and
Affordable Medicines Trust and Others v
Minister of Health and Others
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 138.
71
Compare
Biowatch Trust v Registrar, Genetic
Resources, and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at paras 24-5.
72
See
for example
Claase v Information
Officer, South African Airways (Pty) Ltd
2007
(5) SA 469
(SCA) at para 11 and
In re
Alluvial Creek, Ltd
1929 [CPD] 532 at
535.