Turnbull-Jackson v Hibiscus Court Municipality and Others (CCT 104/13) [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11) BCLR 1310 (CC) (11 September 2014)

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[2014] ZACC 24
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Turnbull-Jackson v Hibiscus Court Municipality and Others (CCT 104/13) [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11) BCLR 1310 (CC) (11 September 2014)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 104/13
In
the matter between:
TREVOR
TURNBULL-JACKSON
.........................................................................................
Applicant
and
HIBISCUS
COAST
MUNICIPALITY
.........................................................................
First
Respondent
PEARL
STAR INVESTMENTS 14
CC
...................................................................
Second
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
AGRICULTURE AND ENVIRONMENTAL
AFFAIRS
KWAZULU-NATAL
...................................................................................
Third
Respondent
and
ETHEKWINI
MUNICIPALITY
......................................................................................
Amicus
Curiae
Neutral
citation:
Turnbull-Jackson v
Hibiscus Coast Municipality and Others
[2014]
ZACC 24
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der
Westhuizen
J and Zondo J
Heard
on:
4 February 2014
Decided
on:
11 September 2014
ORDER
On
appeal from the KwaZulu-Natal High Court, Pietermaritzburg (Sishi J):
1.
The late filing of the record and written
submissions by the applicant is condoned.
2.
Leave to appeal is granted.
3.
The appeal is dismissed.
4.
The applicant must pay the second
respondent’s costs in this Court.
JUDGMENT
MADLANGA
J (Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J,
Majiedt AJ and Zondo J concurring):
Introduction
[1]
Not
infrequently, applications for approval of building plans by
municipalities give rise to legal disputes.  This matter,
which
is characterised by unwelcome longevity, concerns that very
subject.
[1]
Aggrieved by a
decision of the Hibiscus Coast Municipality
[2]
(Municipality) to approve building plans submitted by Pearl Star
Investments 14 CC
[3]
(Pearl
Star), Mr Turnbull-Jackson
[4]
sought an order for the review and setting aside of the approval.
[5]
His application was dismissed with costs by Sishi J in the
KwaZulu-Natal High Court, Pietermaritzburg (High Court).
[6]
With his application for leave to appeal having been unsuccessful in
both the High Court and Supreme Court of Appeal, he
now brings this
application for leave to appeal against the judgment of the High
Court.
Building
approval process and the regulatory matrix
[2]
Before
setting out the facts, it is important to lay out the building plan
approval process as well as the applicable regulatory
matrix.
The National Building Regulations and Building Standards Act
[7]
was promulgated to provide for uniformity in the law relating to the
erection of buildings within municipal areas.
[8]
[3]
The
starting point is section 4.  With the exception of exemptions
provided for in the Act,
[9]
this
section proscribes the erection of buildings without the prior
approval of building plans.
[10]
In terms of section 5 it is obligatory for every local authority to
appoint a building control officer.  This functionary
has
extensive powers that relate to the process of approving plans and
inspection of construction works post approval.
[11]
Inspections are conducted to ensure that building standards and
materials comply with the Building Standards Act.
[12]
Section 6 of the Act stipulates that the building control officer
must make recommendations to the local authority regarding

applications for approval submitted in terms of section 4.
[13]
[4]
The approval process itself is governed by
section 7.  This section requires to be quoted extensively
because much turns on
its provisions:
“
(1)
If a local authority, having considered a recommendation referred to
in section 6(1)(a)—
(a)
is satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall
grant
its approval in respect thereof;
(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 written reasons for such refusal”.
[14]
[5]
Another important provision is section 10,
which enables the local authority to take action where it considers
any building to be
objectionable.  It reads:
“
(1)
If any building or earthwork—
(a)
in the opinion of the local authority in question is being or is to
be erected in such manner that it—
(i)
will not be in the interest of good health or hygiene;
(ii)
will be unsightly or objectionable;
(iii)
will probably or in fact be a nuisance to the occupiers of adjoining
or neighbouring properties;
(iv)
will probably or in fact derogate from the value of adjoining or
neighbouring properties;
(b)
is being or is to be erected on a site which is subject to flooding
or on a site which or any portion of which in the opinion
of the
local authority in question does not drain properly or is filled up
or covered with refuse or material impregnated with
matter liable to
decomposition,
such
local authority may by notice in writing, served by post or
delivered, prohibit the person erecting such building or earthwork
or
causing such building or earthwork to be erected from commencing or
proceeding with the erection thereof or from so commencing
or
proceeding except on such conditions as such local authority may
determine from time to time.
(2)
Any person who fails to comply with any provision of a notice or
condition referred to in subsection (1) shall be guilty of
an
offence”.
[6]
Also
of relevance and application to the applicant’s case is the
Margate Transitional Local Council Town Planning Scheme
(Planning
Scheme)
.
The provisions of the Planning Scheme help shed light on some of the
applicant’s challenges to the approval of Pearl
Star’s
plans.
The
Planning Scheme was promulgated in terms of the KwaZulu-Natal Town
Planning Ordinance.
[15]
The purpose of the Planning Scheme is to promote the coordinated and
harmonious development of the Margate Transitional Local
Council
[16]
area in such a way as will most effectively tend to promote health,
safety, order, amenity convenience and general welfare, as
well as
efficiency and economy in the process of development, and the
improvement of communications.
[17]
Any proposal or application to develop or use land and/or buildings
within a local authority area must have regard to the
provisions of
the Planning Scheme.
[18]
[7]
The
provisions relevant to this case relate to: zoning; what constitutes
a basement and related issues; and the regulation of the
use of side
spaces.  In terms of zoning, clause 3.1.2 states that a land use
zone is a portion of land located within the
local authority area in
terms of which certain uses of land, buildings and structures are
imposed and regulations pertaining to
their use and development
specified.  Clause 4.2.6 provides that in the Margate
section of the Planning Scheme buildings
are permitted to have a
height of six storeys, except certain specified lots where height is
restricted to two storeys.
The
Planning Scheme permits six-storey developments on general
residential land use zones without any form of special consent or

other permission.
[19]
If
a proposed development on this type of zone consists of more than
three storeys, the building must be recessed away from
the normal
building lines and side spaces on the lot by a specified distance for
each additional storey.
[20]
This must be meant to lessen the intrusive effects of overlooking.
[8]
The Planning Scheme
defines
a basement in clause 2.20.  It is
the “lowest part
of any structure where such part is constructed
with
a basement ceiling level not more than one metre above the lesser of
either the finished ground level or the natural ground level

immediately surrounding the building, at any point (excluding
entrance and exit ramps)”.  Further, clause 2.160 in
relevant part defines a storey as-
“
a
room or set of rooms at any level, including any room the floor of
which is split into two or more levels, and shall have the
following
implications:
(a)
any basement not used for residential or work place purposes but used
solely for the purpose of parking vehicles, service installations,

such as transformer and metre rooms, or storage shall not count as a
storey for the purpose of calculating permissible height provided

such an area or areas constitutes a basement in terms this Scheme”.
[9]
Regarding side space regulation, the
Planning Scheme imposes the following restrictions:
“
9.2
Side and rear space
(i)
Except as otherwise stated no building
shall be erected nearer than 2.5 metres to any side or rear boundary.
.
. .
(iv)
The Local Authority may, by special consent, permit in any zone any
building to be erected closer to any boundary than the
distances
specified in this clause if on account of the siting of existing
buildings or the shape, size or levels of the lot, the
enforcement of
this clause will, in the opinion of the Local Authority, render the
development of the lot unreasonably difficult.
In considering
any application under this sub-clause the Local Authority shall have
due regard to any possible detrimental effect
on adjoining
properties.
(v)
Notwithstanding the aforegoing provisions, the Local Authority may,
if special circumstances exist, exempt an applicant from
applying for
special consent if it is satisfied that no interference with the
amenities of the neighbourhood, existing, or as contemplated
by this
scheme, will result; provided that the prior written consent of the
registered owner of each adjoining property, and such
other
properties as the Town Clerk may direct, has first been obtained.
Where any such written consent is not forthcoming,
the applicant
shall, in seeking the relaxations, be required to apply for the Local
Authority’s Special Consent.”
Factual
background
[10]
The
history is long and perplexing.  During late 2003 Pearl Star
submitted plans to the Municipality to construct a six-storey

apartment block on its property.
[21]
In February 2004 the Municipality, acting through its employee, Mr
Van der Walt,
[22]
approved Pearl Star’s building plans (2004 approval).
This approval was set aside by the Municipality’s Appeal
Board
(Appeal Board) at the instance of the applicant, who lodged an appeal
against the approval.
[23]
[11]
In 2005 Pearl Star submitted revised plans
(2005 plans) to erect two apartment blocks, each comprising three
storeys and a basement.
The Municipality approved Pearl Star’s
revised plans (2005 approval).  Yet again, the applicant
appealed against this
approval under the Systems Act on the grounds,
amongst others, that—
(a)
whereas
the plans designated the lowest levels of the buildings as
“basements”, each of which should not count as a
storey
for planning purposes,
[24]
this
designation was erroneous as the proposed basements did not meet the
requisite test; and thus the proposed buildings in fact
exceeded the
three-storey limit beyond which there were certain requirements on
how far each storey beyond the limit should be
recessed from the
normal building line and side spaces;
[25]
(b)
the
proposed development encroached into the side spaces and no special
consent had been obtained for this encroachment;
[26]
and
(c)
erecting
the apartment blocks would substantially reduce the market value of
the applicant’s property, and indeed of the entire

neighbourhood; and be unsightly and affect the views as well as the
applicant’s privacy.
[27]
[12]
The 2005 approval was also set aside by the
Appeal Board on the basis of (b).  The Municipality saw no need
to consider the
other grounds of appeal.
[13]
After the 2004 approval, construction had
commenced.  The applicant’s reaction was to launch urgent
proceedings in the
High Court to interdict continued construction.
The applicant also sought a declarator that the lowest levels on the
2005 plans
did not constitute “basements” for
purposes of the Planning Scheme.  The litigation was adjourned
sine die
(indefinitely) on the understanding between the applicant and Pearl
Star that further affidavits would need to be filed to resolve
the
basement issue.
[14]
By agreement Pearl Star ceased
construction.  The applicant asserts that Pearl Star undertook
that it would not lodge any fresh
plans with the Municipality until
the “basement issue” had been determined by the High
Court.  The Municipality
refused to be party to this agreement.
The agreement notwithstanding, in 2006 Pearl Star lodged another set
of plans (2006
plans), again for the construction of two apartment
blocks of three storeys each.  The plans were approved by Mr Van
der Walt
in February 2007 (2007 approval).  This time an appeal
to the Appeal Board was unsuccessful.
[15]
The
applicant approached the High Court to review and set aside the
decision of the Appeal Board.  The High Court held that,
on the
authority of
Walele
[28]
and
Reader
,
[29]
he had no standing to lodge an appeal in terms of section 62 of
the Systems Act.
[30]
This rendered his appeal of no force and effect.  However, in
line with
Oudekraal
,
[31]
the High Court saw it fit to set aside the Appeal Board’s
decision to refuse the applicant’s appeal; this in order
to
avert any possible confusion about the continuing effect of the
decision.  With the leave of the High Court the applicant

launched fresh proceedings for a review of the 2007 approval.
[32]
Furthermore, in this litigation the applicant alleged the existence
of an improper and corrupt relationship between members
of Pearl Star
and Mr Van der Walt.  The multi-pronged review application was
unsuccessful.  It is against the judgment
in those proceedings
that the applicant appeals to us.
[33]
In
this Court
[16]
Before us, the applicant: complains of bias
against Mr Van der Walt; argues that the 2007 approval was based on
personal knowledge
and information possessed by Mr Van der Walt and
not contained in the rule 53 record; asserts that, in making the 2007
approval
whilst the basement issue raised in the 2005 High Court
review application – an application that remains adjourned
sine
die
– was yet to be resolved, the
Municipality usurped the power of the High Court to determine that
issue; contends that what
the building control officer furnished to
the decision-maker purportedly in terms of section 6 of the Building
Standards Act fell
short of the recommendation envisaged in that
section; and submits that the level of compliance with section
7(1)(b)(ii) of the
Building Standards Act set out in
Walele
was not met.  Therefore, contends the applicant, the 2007
approval ought not to have been made.  These, plus the questions

whether condonation for the late filing of the record and written
submissions by the applicant and whether leave to appeal should
be
granted, make up the sum total of issues to be determined by us.
Leave
to appeal
[17]
What
the applicant raised as constitutional issues has been pleaded rather
inelegantly.
[34]
But for
the issue on the interpretation of section 7(1)(b)(ii) of the
Building Standards Act,
[35]
the application for leave to appeal would have been stillborn.
I demonstrate why this is so when I deal with the issues.
That
leaves only the issue of compliance with section 7(1)(b)(ii), a
matter on which the interpretation of the section is key.
It is
on this that the question whether leave to appeal should be granted
hinges.
[18]
At
the centre of this issue is a juristic controversy arising from a
holding by the Supreme Court of Appeal in
True
Motives
[36]
that the interpretation of section 7(1)(b)(ii) of the Building
Standards Act adopted by this Court in
Walele
[37]
was
obiter
,
wrong and ought not to be followed.
[38]
In essence
the
applicant
advances
an argument that section 7(1)(b)(ii) must be interpreted in a manner
that is consonant with section 39(2) of the Constitution;
[39]
this being what greatly influenced this Court’s interpretation
in
Walele
.
The contention is that the Supreme Court of Appeal’s
interpretation of the section in
True
Motives
is at odds with what section 39(2) decrees.  The
Municipality contends for the
True
Motives
interpretation.  An argument that the one interpretation
promotes the spirit, purport and objects of the Bill of Rights and

the other does not, raises a constitutional issue.  It is about
an injunction by the Constitution itself to all courts engaged
in
statutory interpretation.
And
section 7(1) of the Building Standards Act “concerns the
exercise of an important public power, and the interpretation
of that
section plainly raises matters of constitutional import”.
[40]
[19]
Is
it in the interests of justice to grant leave?  Countrywide
local authorities receive applications for approval of building
plans
in their thousands.
[41]
Determinations of applications in terms of section 7(1)(b)(ii) of the
Building Standards Act must be taking place virtually
on a daily
basis.  It is manifest that clarity on an issue so central to
the proper exercise of this approval power is necessary.
[42]
I
am persuaded that it is in the interests of justice to grant leave to
appeal.
[20]
Before dealing with this interpretive issue, let me first deal
with the others.
Condonation
[21]
The
applicant filed both the record and his written submissions out of
time.
[43]
He
seeks condonation.  The application for condonation of the late
filing of the record was not opposed.
The explanation for the
delay is satisfactory.  I need say nothing more in that regard.
Pearl Star indicated –
in writing – that it had suffered
no prejudice.  On balance,
[44]
I am of the view that the late filing of the record must be condoned.
[22]
The applicant’s counsel takes the blame for the late
lodgment of written submissions.  She told the Court that she
forgot
to diarise the due date and was only reminded – after
the fact – when the applicant asked for a copy.  The
Municipality
opposed this application asserting that it had suffered
prejudice.  It pointed out that it had to file its argument
without
the benefit of seeing the applicant’s.  The upshot
was that the Municipality’s argument did not address that of

the applicant.  In particular, the Municipality was in the dark
as to the exact nature of the constitutional issue the applicant
was
relying on.
[23]
In
this Court the test for determining whether condonation should be
granted or refused is the interests of justice.  Factors
that
the Court weighs in that enquiry include: the length of the delay;
the explanation for, or cause of, the delay; the prospects
of success
for the party seeking condonation; the importance of the issues that
the matter raises; the prejudice to the other party
or parties; and
the effect of the delay on the administration of justice.
[45]
It should be noted that although the existence of prospects of
success in favour of the party seeking condonation is not
decisive,
it is a weighty factor in favour of granting condonation.
[46]
[24]
This Court has in the past cautioned against non-compliance with its
rules and directions.  The words of Bosielo AJ bear
repetition:
“
I
need to remind practitioners and litigants that the rules and courts’
directions serve a necessary purpose.  Their
primary aim is to
ensure that the business of our courts is run effectively and
efficiently.  Invariably this will lead to
the orderly
management of our courts’ rolls, which in turn will bring about
the expeditious disposal of cases in the most
cost-effective manner.
This is particularly important given the ever increasing costs
of litigation, which if left unchecked
will make access to justice
too expensive.”
[47]
[25]
The
explanation given by the applicant’s counsel is
unsatisfactory.  Where non compliance with the rules or
directions
is as a result of the fault of a litigant’s legal
representative, certain considerations come into the equation.
Before
I deal with them, let me emphasise that an application for
condonation is not a mere formality.
[48]
This is true whether it is the litigant, the legal representative or
both who are at fault.  The test remains the same:
is it in the
interests of justice to grant condonation?
[26]
Courts
are reluctant to penalise litigants for the tardiness of their legal
representatives.
[49]
I
do not read this Court’s pronouncement in
Ferris
to say that this long-standing principle no longer avails.
[50]
It is more a question of what the facts of a given case dictate.
Courts have made it clear though that in a fitting
case the fault of
a legal representative will be imputed to the litigant.  In the
oft-cited decision in
Saloojee
the Appellate Division said:
“
There
is a limit beyond which a litigant cannot escape the results of his
attorney’s lack of diligence or the insufficiency
of the
explanation tendered.  To hold otherwise might have a disastrous
effect upon the observance of the Rules of this Court.
. . .
The attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little reason
why, in regard to
condonation of failure to comply with a Rule of Court, the litigant
should be absolved from the normal consequences
of such a
relationship”.
[51]
[27]
In this instance, soon after the written submissions ought to have
been filed, the applicant requested a copy.  It was
this request
that galvanised counsel into action.  If anything, the applicant
was vigilant.  Counsel’s unsatisfactory
explanation cannot
be imputed to him.
[28]
The prejudice that the Municipality suffered was not incurable.
Although its written submissions did not address the
contentions
raised in the applicant’s written argument, it had ample time
to prepare for and be in a position to address
these contentions in
oral argument.  Indeed, I did not understand the Municipality to
suggest otherwise.  Also, it could
have sought leave to file
further written submissions in response.
[29]
Upon a consideration of the relevant factors, condonation of the late
filing of the written argument must also be granted.
Bias
[30]
The
Constitution guarantees everyone the right to administrative action
that is procedurally fair.
[52]
Section 6(2)(a)(iii) of PAJA, which is legislation enacted in terms
of section 33(3) of the Constitution to give effect to,
inter
alia
,
the right contained in section 33(1) of the Constitution, makes
administrative action taken by an administrator who was “biased

or reasonably suspected of bias” susceptible to review.
Whether an administrator was biased is a question of fact.
On
the other hand, a reasonable suspicion of bias is tested against the
perception of a reasonable, objective and informed person.
[53]
To substantiate, borrowing from
S
v Roberts
:
[54]
(a)
There must be a suspicion that the administrator might – not
would – be biased.
(b)
The suspicion must be that of a reasonable person in the position of
the person affected.
(c)
The suspicion must be based on reasonable grounds.
(d)
The suspicion must be one which the reasonable person would –
not might – have.
[31]
The
applicant bears the onus to prove its charge against Mr Van der
Walt.
[55]
H
e
relies
on a number of grounds for his claim.  The first is rather
peculiar.  Counsel for
the
applicant
gives
it the tag “reactive bias”.  It is articulated
thus.  Throughout Mr Van der Walt’s involvement
in
the approval process,
the
applicant
has
levelled insults at him that were calculated to impugn his
integrity.  He accused him of bias, corruption and
incompetence.
From this, the applicant sought to convince this
Court that the natural human reaction to repeated insults of this
nature is to
be biased against the person hurling them.
[56]
And, because
the
applicant
insulted
Mr Van der Walt beyond some threshold, the exact location of which I
have no idea, it is reasonable to believe that Mr
Van der Walt was
not impartial.
[57]
The
conclusion is that Mr Van der Walt ought to have recused himself as
the decision-maker.  That he did not do so vitiates
the 2007
approval.
[32]
This
would be the easiest stratagem for the unscrupulous to get rid of
unwanted decision-makers: if I insult you enough –
whatever
enough may be – you are out.  This is without substance.
It proceeds from an assumption that officials
with decision making
power would respond the same way to insults.  It ignores the
following: the training of the officials;
their experience; possibly
even their exposure to abuse and insults – from time to time –
and the development of coping
skills; and other personal attributes,
all of which may render them impervious to, or tolerant of, insults.
A finding of
bias cannot be had for the asking.  There must be
proof; and it is the person asserting the existence of bias who must
tender
the proof.
[58]
The
applicant
has
failed dismally in discharging the onus on the so-called reactive
bias.
[33]
The
applicant’s second basis for bias is this.  He submits
that the fact that Mr Van der Walt was undeterred in
continuing
to grant the approvals, despite the upsets by the Appeal Board,
[59]
is an indication of his bias in favour of Pearl Star.  This
disregards the fact that on each occasion the plans had been
materially revised and were different at each stage of approval.
Therefore, Mr Van der Walt did not persist in approving the
exact
same plans that had failed previously.  In any event, Mr Van der
Walt was closely acquainted with the history
of the plans,
the
applicant’
s
previous complaints against the plans and Pearl Star’s attempts
at making the plans legally compliant.  This made Mr
Van der
Walt better placed to make an informed decision on the revised
plans.  Also, knowing all the history, he was more
likely to be
expeditious in the execution of the task.
[34]
These
are the main bases of complaint.
The
applicant
raises
a number of others.  They are so baseless as to warrant
rejection out of hand and need not unduly burden this judgment.
[60]
[35]
Before
I conclude, I am moved to caution against wanton, gratuitous
allegations of bias – actual or perceived – against

public officials.  Allegations of bias, the antithesis of
fairness, are serious.  If made with a sufficient degree of

regularity, they have the potential to be deleterious to the
confidence reposed by the public in administrators.  The
reactive
bias claim stems from unsubstantiated allegations of
corruption and incompetence.  These are serious allegations,
especially
the one of corruption.  Yes, if public officials are
corrupt, they must be exposed for what they are: an unwelcome,
cancerous
scourge in the public administration.
[61]
But accusations of corruption against the innocent may visit them
with the most debilitating public opprobrium.  Gratuitous
claims
of bias like the present are deserving of the strongest possible
censure.
Approval
on personal knowledge and information
[36]
The
applicant
complains
that when making the 2007 approval, the decision maker had
regard to information not contained in the rule 53 record.
[62]
As it turns out, the information complained of is undocumented
knowledge Mr Van der Walt has as a result of
his
familiarity with the subject matter.
The
applicant
argues
that reliance on this information undermines transparency,
accountability and integrity of any verification process; and
that
this is inconsonant with just administrative decision-making.
[37]
Undeniably,
a rule 53 record is an invaluable tool in the review process.
It may help: shed light on what happened and why;
give a lie to
unfounded
ex
post facto
(after
the fact) justification of the decision under review; in the
substantiation of as yet not fully substantiated grounds of
review;
in giving support to the decision-maker’s stance; and in the
performance of the reviewing court’s function.
But it is
absurd to suggest that a decision-maker must wipe her mind clean of
all knowledge of, and experience in, the subject
matter.  Just
how does one do that; and for what rational purpose?  The very
decision by the local authority to appoint
the decision-maker would
invariably have been informed by her knowledge and experience.
Not surprisingly, both
Camps
Bay Ratepayers
[63]
and
True
Motives
[64]
accept that a decision maker is required to rely on personal
knowledge and experience to make an informed decision.
That can
only enhance the decision-making process.  This is as true of
other decision-makers as it is of Mr Van der Walt.
The
applicant’
s
contention falls to be rejected.
[38]
Lest I be misunderstood, in certain
instances fairness may dictate that, where the knowledge of an
administrative functionary is
likely to play a crucial role in the
decision to be taken, the functionary may have to request comment on
it from the affected
person before taking the decision.  It is
not necessary to indicate what those circumstances may be.  The
instant matter
proceeded on the basis that – on the authority
of
Walele
– the applicant was not entitled to any hearing at all before
approval by the decision maker.
Usurpation
of High Court’s role
[39]
To
recapitulate, the 2005 High Court application was never determined.
Instead it was postponed
sine
die
.
What was at issue in it included the question whether the lower level
of the proposed development was in fact a basement.
The essence
of
the
applicant’
s
usurpation contention is that, because the basement issue raised in
that application was never resolved, it remained pending for

resolution by the High Court.  In making the 2007 approval in
respect of plans that also had a “basements” the

Municipality usurped the High Court’s power to decide the
basement dispute.
[65]
This is a curious argument.  Once Pearl Star was intent on
having new plans approved and developing its property in
accordance
with them, anything relating to the earlier plans would effectively
have become moot.
[40]
In the High Court, Mr Van der Walt deposed
to an affidavit averring that the 2005 and 2006 plans were materially
different.  The
High Court accepted this.  It dealt with
the issue extensively – and correctly:
(a)
In the 2006 plans “[t]he encroachment into the side space next
to block ‘A’ had been moved.  This
was the
feature of the 2005 plans that had led to the approval being
overturned on appeal”.
[66]
(b)
“The section to the front of block ‘A’ is now an
open porch and so excluded from calculations to determine
whether the
lowest level was a basement.”
[67]
(c)
“Block ‘B’ was moved 12 metres down the slope,
significantly impacting the basement calculation and the issue
of the
view.”
[68]
[41]
In any event, the High Court’s power
had not been usurped as the applicant was at liberty to set down the
2005 application,
although that course would have been foolhardy in
the face of the 2006 plans.  It would most likely have been
successfully
met with the defence of mootness.
Sufficiency
of recommendation
[42]
A
recommendation by a building control officer to a municipality in
terms of section 6 of the Building Standards Act is a necessary

jurisdictional fact for the proper exercise of power in terms of
section 7(1) of that Act.
[69]
The
applicant
submits
that, based on
Walele
,
what was furnished to the decision-maker was not a recommendation at
all.  In
Walele
Jafta
AJ stated: the recommendation “is the proper means by which
information on disqualifying factors can be placed before
the
decision-maker”;
[70]
“[t]he Building Control Officers must ensure that adequate
information is placed before decision-makers so that they can

consider applications for approval of building plans properly and in
a balanced way”;
[71]
“[t]he recommendations they make must serve this purpose”;
[72]
the document containing the recommendation must provide the
municipality with sufficient information so that the ultimate
decision-maker
can “assess and be satisfied of [the section
7(1)] issues himself or herself”;
[73]
and the building control officer’s recommendation is the
municipality’s “primary source of information”.
[74]
In short, absent adequate information in recommendations, there can
be no proper consideration of applications in terms of
section 7(1).
Is there substance in
the
applicant’
s
complaint?
[43]
The recommendation to Mr Van der Walt was
set out in an internal pro-forma document which had a list of items
to which the building
control officer was required to apply his
mind.
The applicant
contends that the
pro-forma is partly factually incorrect, internally contradictory and
in part meaningless and confusing.
He cites the example of the
item that says “neighbour’s consent – sect 7 view”,
against which is a tick.
He asserts that his consent was
neither sought nor obtained and yet, by means of the tick, the
recommendation appears positively
to suggest the contrary.
Another example is a tick against “[t]itle deeds not
attached”.  Does the tick
mean it is in order if the title
deeds are not attached?  Were they not attached; or were they in
fact attached?  It
is not clear.  Inexplicably, the
document also says “[p]lease be advised that your plans have
not
been
approved for one or more of the following” reasons (emphasis
added), whereas it contains a stamp recommending that the
plans be
approved.  At first glance, there does appear to be substance in
the applicant’
s complaints: on the
whole, and without the proper context, the document is
incomprehensible.
[44]
The Municipality’s affidavits gave an
adequate explanation.  The building control officer checks the
plans against each
of the items listed on the pro-forma.  A tick
in the relevant space on the form denotes that the item concerned is
in order.
One that is not in order is marked with a cross.
I understand the evidence to mean that one should not attempt to make
sense
of what a tick would ordinarily mean in the context of the
wording of the item in issue.  Rather, one should read a tick to

mean that the legal requirements relating to the item have been
satisfied.  That is how the pro-forma is filled in; and that
is
how it is understood by all concerned within the Municipality,
including the decision-maker.  In the case of the 2006 plans
all
the items had been ticked.  This was an indication that in the
view of the building control officer, all was in order.
That is
how the decision-maker would also have understood the document.
[45]
Also
of significance, a number of documents accompanied the contested
recommendation.
[75]
When
all these documents, including the pro-forma, are looked at together,
the nature of the recommendation becomes clear.
Yet again,
the
applicant’
s
argument must fail.
Interpretation
of section 7(1)(b)(ii)
[46]
This
is a subject of much contention.  At the heart of the
controversy is the majority view of the Supreme Court of Appeal
in
True
Motives
[76]
that what this Court held in
Walele
[77]
on the interpretation of section 7(1)(b)(ii) of the Building
Standards Act was
obiter
and wrong.  This view made it possible for the Supreme Court of
Appeal not to follow this Court’s interpretation of
the
section.  This is a controversy that must be dealt with
head-on.  I have had the pleasure of reading the judgment
of my
colleague, Froneman J (the separate judgment).  He takes the
view that it is not necessary to grapple with this controversy.

To summarise, that is because of the true reach of section
7(1)(b)(ii) as interpreted in
Walele
and viewed in the light of the further unanimous clarification of
what is meant by “derogation of value” in
Camps Bay
Ratepayers
.
[78]
The separate judgment puts significant emphasis on paragraphs 38-40
of
Camps
Bay Ratepayers
.
I am adamant that the controversy must be resolved.
[47]
Camps Bay Ratepayers
reached
a crucial and categorical conclusion.  It is this:
“
(a)
Though the application of section 7(1)(a) of the Building [Standards]
Act arose in this matter, section 7(1)(b)(ii) did not.
(b)
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.”
[79]
[48]
This
means
Camps
Bay Ratepayers
is authority on the interpretation of section 7(1)(a) of the
Building Standards Act, including the meaning of “derogation
of
value” insofar as it relates to that section.  It is not
authority on the interpretation of section 7(1)(b)(ii).
The
relevance of “derogation of value” in section 7(1)(a), a
concept not referred to in that section, is to be found
in
Camps
Bay Ratepayers
.
[80]
In the words of Brand AJ:
“
Derogation
from market value . . . 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.”
[81]
[49]
What
this means is that, if the derogation of value the applicant
attributes to Pearl Star’s development falls under (b) of
the
quotation in the preceding paragraph, then section 7(1)(b)(ii) is
implicated and the interpretation of the section is squarely
before
this Court.  And that is an issue with which
Camps
Bay Ratepayers
never dealt.  Does the asserted derogation of value fall under
(b)?  If the alleged derogation flows from negative influences

that arise despite the fact that the new development accords with
legally imposed restrictions, then it does.
[82]
[50]
In what the applicant’s case refers
to as a “basket of amenities” that will be negatively
affected by the construction
of Pearl Star’s building,
reference is made, amongst others, to the following: the proposed
buildings will eliminate privacy
on the applicant’s property
because of the overlooking effect of one of Pearl Star’s
buildings; despite the fact that
in suburban terms one of the
buildings cannot be said to be too close to the applicant’s
property, it is directly at the
centre of the sea views enjoyed from
the applicant’s property and is thus “‘in your
face’ and overbearing”;
because of the narrow shape of
Pearl Star’s property, developments on it have to be very close
to the building lines and
the effect of this, when viewed from the
applicant’s property, will be most oppressive and overbearing;
the proximity of
one of Pearl Star’s buildings could have the
effect of radiating heat towards the applicant’s property; one
of the
buildings will restrict the access of natural light to the
applicant’s property; as Pearl Star’s buildings are to
house
numerous people on a permanent or temporary basis, these people
and staff will generate a certain degree of noise; and likewise,

because Pearl Star’s property is steep, cars accessing it will
generate considerable noise.
[51]
All
of this is said in the context of the legally permissible height of
six storeys.  Pearl Star’s buildings are only
three
storeys, well within the prescribed maximum height.  Also, none
of these complaints flows from allegations of contraventions
of any
legal prescripts.  On the authority of
Camps
Bay Ratepayers
,
these are allegations of derogation of value that fall under section
7(1)(b)(ii) of the Building Standards Act,
[83]
an issue that never formed part of the applicants’ case in
Camps
Bay Ratepayers
.
[84]
As derogation of value – in the context of section 7(1)(b)(ii)
– has been raised in the instant matter, the
Walele
–
True
Motives
controversy must be resolved by this Court.
[52]
In
Walele
,
this Court held that a local authority cannot approve plans –
that are otherwise compliant with the requirements of the
Building
Standards Act – unless it satisfies itself that the proposed
building will not trigger any of the disqualifying
factors referred
to in section 7(1)(b)(ii).
[85]
It said:
“
[T]he
decision-maker must be satisfied of two things before granting
approval.  The first is that he or she must be satisfied
that
there is compliance with the necessary legal requirements.
Secondly, he or she must also be satisfied that none of the

disqualifying factors in section 7(1)(b)(ii) will be triggered by the
erection of the building concerned.  . . .  This

interpretation is consistent with the obligation to promote the
spirit, purport and objects of the Bill of Rights.  It
demonstrates
that it is not only the landowner’s right of
ownership which must be taken into account, but also the rights of
owners of
neighbouring properties which may be adversely affected by
the erection of a building authorised by the approval of the plans in

circumstances where they were not afforded a hearing.  The
section, if construed in this way, strikes the right balance between

the landowner’s entitlement to exercise his or her right of
ownership over property and the right of owners of neighbouring

properties.  The interpretation promotes the property rights of
the landowner and those of its neighbours.”
[86]
[53]
On the other hand, in
True
Motives
the Supreme Court of Appeal held that a local authority is bound to
approve plans, unless it is positively satisfied that the proposed

building will probably, or in fact, trigger one of the disqualifying
factors referred to in section 7(1)(b)(ii).  If there
is doubt,
the building authority must approve the plans:
“
The
use of the conjunction ‘or’ after section 7(1)(b)(i)
makes it plain that the enquiry postulated by subparas (aa)
and (bb)
of section 7(1)(b)(ii) only arises if and when the local authority is
satisfied that the application in question complies
with the
requirements of the Building Standards Act and any other applicable
law.  Clearly, the legislature did not have the
factors set out
in those subparagraphs in mind when it spoke, in subsection 7(1)(a),
of compliance ‘with the requirements
of this Act’.
In other words, the application may otherwise comply with the
requirements of the Act and any applicable
law but nevertheless not
be susceptible to approval.  . . .  The refusal mandated by
section 7(1)(b)(ii) follows when
the local authority is satisfied
that the building will probably or in fact cause one of the
undesirable outcomes.
Section
7(1)(b)(ii) does not authorise a local authority to refuse to grant
its approval upon the strength of a mere possibility
that one of
those outcomes may eventuate.  Such an outcome must at the least
be ‘probable’.  The Act is not
to the effect that
the local authority may withhold approval because it is not satisfied
that the building will not cause one of
those outcomes
.”
[87]
(Emphasis added.)
[54]
The
Walele
–
True
Motives
controversy brings to the fore the important doctrine of precedent, a
core component of the rule of law,
[88]
without which deciding legal issues would be directionless and
hazardous.  Deviation from it is to invite legal chaos.
[89]
The doctrine is a means to an end.  This Court has previously
endorsed the important purpose it serves:
“
[The
doctrine of precedent] is widely recognized in developed legal
systems.  Hahlo and Kahn describe this deference of law
for
precedent as a manifestation of the general human tendency to have
respect for experience.  They explain why the doctrine
of
stare
decisis
is so important, saying:
‘
In
the legal system the calls of justice are paramount.  The
maintenance of certainty of the law and of equality before it,
the
satisfaction of legitimate expectations, entail a general duty of
judges to follow the legal rules in previous judicial decisions.

The individual litigant would feel himself unjustly treated if a past
ruling applicable to his case were not followed where the
material
facts were the same.  This authority given to past judgments is
called the doctrine of precedent.
.
. .
It
enables the citizen, if necessary with the aid of practising lawyers,
to plan his private and professional activities with some
degree of
assurance as to their legal effects; it prevents the dislocation of
rights, particularly contractual and proprietary
ones, created in the
belief of an existing rule of law; it cuts down the prospect of
litigation; it keeps the weaker judge along
right and rational paths,
drastically limiting the play allowed to partiality, caprice or
prejudice, thereby not only securing
justice in the instance but also
retaining public confidence in the judicial machine through like
being dealt with alike. . . .
Certainty, predictability,
reliability, equality, uniformity, convenience: these are the
principal advantages to be gained
by a legal system from the
principle of
stare
decisis
.’”
[90]
(Footnotes omitted.)
[55]
I cannot but also borrow from the eloquence
of Cameron JA:
“
The
doctrine of precedent, which requires courts to follow the decisions
of coordinate and higher courts in the judicial hierarchy,
is an
intrinsic feature of the rule of law, which is in turn foundational
to our Constitution.  Without precedent there would
be no
certainty, no predictability and no coherence.  The courts would
operate in a tangle of unknowable considerations, which
all too soon
would become vulnerable to whim and fancy.  Law would not rule.
The operation of precedent, and its proper
implementation, are
therefore vital constitutional questions.”
[91]
(Footnote omitted.)
[56]
The
doctrine of precedent decrees that only the
ratio
decidendi
[92]
of a judgment, and not
obiter
dicta
,
have binding effect.
[93]
The fact that
obiter
dicta
are not binding does not make it open to courts to free themselves
from the shackles of what they consider to be unwelcome authority
by
artificially characterising as
obiter
what is otherwise binding precedent.
[94]
Only
that which is truly
obiter
may not be followed.  But, depending on the source, even
obiter
dicta
may be of potent persuasive force and only departed from after due
and careful consideration
.
[95]
[57]
The
Walele
–
True
Motives
controversy raises a few issues.  The first is whether the
interpretation given by this Court in
Walele
is
obiter
.
[96]
Even if it is, it is highly persuasive, coming – as it does –
from the highest court in the hierarchy of courts.
[97]
But it is not binding.
[98]
The second is whether, if it is not
obiter
,
it is clearly wrong.  If it is not clearly wrong, this Court and
all others are bound by it:
[99]
stare
decisis
.
[100]
If it is clearly wrong but not
obiter
,
this Court – and it alone – is at liberty to depart from
it.
[101]
If a
statement of the law was part of the
ratio
decidendi
,
the question whether it was wrong does not arise insofar as courts
lower in the hierarchy to the court that pronounced it are

concerned.
[102]
Right
or wrong, courts lower in the hierarchy are bound by it.  The
words of Kriegler J, said in the context of interpretation
of
legislation and the development of common law in accordance with the
spirit, purport and objects of the Bill of Rights, are
quite
instructive and find application here:
“
[C]ourts
are bound to accept the authority and the binding force of applicable
decisions of higher tribunals. . . .  The [trial]
judge was
obliged to approach the case before him on the basis that [the
Supreme Court of Appeal’s] interpretation was correct,
however
much he may personally have had misgivings about it.  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.”
[103]
[58]
This
statement applied equally to the Supreme Court of Appeal in respect
of this Court’s decisions on constitutional matters.
Now
that this Court is the highest court on all matters,
[104]
the statement applies to all its decisions.
[59]
The third issue, which is closely linked to
the second, is: what is the proper interpretation to be given to
section 7(1)(b)(ii)?
One cannot reach a conclusion on the
second issue without dealing with the third.  Thus the second
and third issues will be
dealt with as one.
[60]
In
order to deal with these questions properly, after the hearing this
Court sought further written submissions from the parties
and written
submissions from all metropolitan municipalities.  The eThekwini
Municipality answered this call, and the Court
is indebted to
it.
[105]
Was
the interpretation of section 7(1)(b)(ii) in Walele obiter?
[61]
Literally,
obiter
dicta
are things said by the way or in passing by a court.
[106]
They are not pivotal to the determination of the issue or issues at
hand and are not binding precedent.  They are to
be contrasted
with the
ratio
decidendi
of a judgment, which is binding.  Regarding this concept
Schreiner JA in
Levinson
[107]
said:
“
It
may be that the contrast between a reason and the ratio depends
mainly on the meaning attached to those words in their context
by the
users. . . .  [W]here a single judgment is in question, the
reasons given in the judgment, properly interpreted, do
constitute
the
ratio
decidendi
,
originating or following a legal rule, provided (a) that they do not
appear from the judgment itself to have been merely subsidiary

reasons for following the main principle or principles, (b) that they
were not merely a course of reasoning on the facts . . .
and (c)
(which may cover (a)) that they were necessary for the decision, not
in the sense that it could not have been reached along
other lines,
but in the sense that along the lines actually followed in the
judgment the result would have been different but for
the
reasons.”
[108]
[62]
I
read
Walele
to have given two reasons for its conclusion that the provisions of
section 7(1) of the Building Standards Act had not been met.

The first is that, based on the majority interpretation of section
7(1)(b)(ii), the information
[109]
furnished to the decision-maker in terms of section 6 could not have
placed the decision-maker in a position to reach the level
of
satisfaction required by section 7(1)(b)(ii).  The second is
that the information placed before the decision-maker in terms
of
section 6 did not constitute a recommendation, which is a
jurisdictional fact for the exercise of the section 7(1) power.
Levinson
does not appear to have been concerned with multiple,
[110]
but central bases, for determining a dispute or an issue in a
dispute.  Therefore, one must be careful not to regard its
authority as fitting all scenarios.  It happens fairly
frequently that a court will give more than one basis for determining

an issue, each of which bases is dispositive.  Do the second and
subsequent bases become
obiter
purely because the first – standing all by itself – is
dispositive of the dispute; or vice versa?  I think not.

The answer must still lie in whether each of the many prongs of the
court’s reasoning is central to the resolution of the
issue
under consideration.
[111]
If the additional bases are central to the reasoning, not subsidiary
and not mere reasoning on the facts, they are as much
part of the
ratio
decidendi
as the first basis.  Not surprisingly, this Court has held that
“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
”
.
[112]
[63]
Brand AJ added:
“
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.”
[113]
[64]
Coming
to the issue at hand,
the
majority judgment in
Walele
first renders an interpretation of section 7(1)(b)(ii) of the
Building Standards Act.  Thereafter it deals with the facts
in
the light of its interpretation of the section, and it does the
latter in paragraphs 59 to 63.  At issue in the discussion
of
the facts are: the information
[114]
that was placed before the decision-maker; and its sufficiency (or
lack of it) for purposes of the proper exercise of the section

7(1)(b)(ii) power by the decision-maker – obviously, that
exercise of power having to be in accordance with the majority’s

interpretation of section 7(1)(b)(ii).  On this the majority
comes to the clear, categorical conclusion that “it cannot
be
said that the information, which the City admitted had been placed
before the decision-maker, constituted reasonable grounds
for the
latter to be satisfied [that the disqualifying factors were not
triggered]”.
[115]
At the beginning of the same paragraph the majority judgment says:
“
There
can be no doubt that [the documents that had been placed before the
decision maker] could not reasonably have satisfied
[him] that
none of the disqualifying factors would be triggered.  None of
these documents refer to those factors.  If
indeed the
decision-maker was so satisfied on the basis of these three
documents, his satisfaction was not based on reasonable
grounds.
The documents fall far short as a basis for forming a rational
opinion.”
[65]
And then in paragraph 63:
“
[T]he
reasonableness of the decision-maker’s satisfaction can be
determined with reference only to the information he had
before him
at the time he considered the building plans in question.  An
evaluation of such information reveals that it was
inadequate.
It follows that the decision-maker had failed to properly determine
that none of the disqualifying factors would
be triggered by the
erection of the block of flats.”
[66]
The
majority’s approach was this.  It first considered the
import and requisites of section 7(1)(b)(ii).  It then
looked at
the information that was before the decision maker and concluded
that, on that information, the decision-maker could
not have been in
a position to determine whether the requisites had been met.  To
me it does seem to have been necessary for
the Court to consider what
the requisites were to be able to conclude whether they had been
met.  That could only be done
by interpreting the section.
In short, the interpretation of section 7(1)(b)(ii) was central to
the conclusion that the majority
reaches: in light of the majority’s
interpretation, there was no proper exercise of the power conferred
by the section.
That had to lead to one outcome – the
success of the appeal – which, in the event, happened, albeit
with the additional
ground of lack of a recommendation.
[116]
[67]
Surely, the additional ground does not
detract from the centrality of the interpretation to the reasoning
(read
ratio
)
and outcome that the majority reached; nor does the fact that this
additional reasoning could – individually – equally
be
dispositive of the appeal.  Whatever the legal niceties on what
constitutes
obiter dicta
may
be, I find it rather difficult to comprehend how something so
central, not only to the reasoning, but to the outcome, can be
said
to be
obiter
.
[68]
Crucially, the
Walele
majority says:
“
[I]t
was submitted that section 7(1)(b)(ii) . . . enjoins the
decision-maker to be satisfied, prior to approving the plans, that

the erection of the building to which the plans apply will not
disfigure the area; be unsightly or objectionable; be dangerous
to
life or property; or derogate from the value of adjoining
properties.  The existence of any one of these factors, it was

contended, disqualifies the plans concerned from approval.  As
the consideration of these issues requires
a
proper interpretation of the relevant sections of the Building
Standards Act
,
it is convenient to commence with an overview of those
provisions”.
[117]
(Emphasis added.)
[69]
Surely, this evinces the centrality of the
interpretive exercise.  This exercise related to an issue that
was argued before
this Court.  In fact, upon a close look the
issue was itemised as one of the issues that fell to be determined.
The
issues are itemised in paragraph 22 of
Walele
.
One of them is that “the City failed to comply with mandatory
procedural requirements prescribed by the Building Standards
Act”.
Substantiating on this issue in paragraph 46, the judgment says that
two arguments were advanced, one of them
being the one I have quoted
in the preceding paragraph.  In the circumstances, the simple
point is, in paragraph 46 the issue
concerning the need for the
interpretation of section 7(1)(b)(ii) is captured pertinently.
The interpretive process was not
only central to this; it constituted
the issue.  How that issue fizzles out to a non-issue with the
result that a pronouncement
on it becomes
obiter
is not easy to comprehend.
[70]
What would the answer be if, after its
interpretation of section 7(1)(b)(ii) and application of the
interpretation to the facts,
the
Walele
majority had not gone on to decide the question of the
recommendation?  Would the reasoning on the interpretation still
have
been considered to be
obiter
?
I think not.  For the Court to be in a position to pronounce on
the sufficiency of the information, it would have had
to know what
exactly section 7(1)(b)(ii) requires.  The additional reason for
determining the appeal, namely, the lack of
a recommendation, cannot
alter this position.
[71]
In sum, the Court’s interpretation of
section 7(1)(b)(ii) in
Walele
was not
obiter
;
and
True Motives
erred in not following that interpretation.  This conclusion has
significant consequences.  That interpretation is binding
on
this Court unless it was clearly wrong.  Was it?
Was
the Walele interpretation of section 7(1)(b)(ii) “clearly
wrong”?
[72]
Whether
the reasoning of a court was wrong is not a matter of personal
preference, mere disagreement, misgivings, doubt, let alone
whim.
A court with authority to depart from precedent may only do so if it
is convinced that the previous decision was clearly
wrong.
[118]
The test is a stringent one.  And “mere lip service to the
doctrine of precedent is not enough; . . . deviation
from previous
decisions should not be undertaken lightly.”
[119]
[73]
The starting point, as correctly explained
in
Walele
,
is understanding the context in which section 7(1)(b)(ii) operates.
The long title of the Building Standards Act reads:
“[t]o
provide for the promotion of uniformity in the law relating to the
erection of buildings in the areas of jurisdiction
of local
authorities; for the prescribing of building standards; and for
matters connected therewith.”  Property development
may,
depending on scale, have multifarious effects.  It may pose
health hazards; it may expose people to the risk of physical
harm,
including loss of life and limb; it may create a nuisance to
occupiers of neighbouring properties; it may affect the aesthetics
of
the area; and it may devalue neighbouring properties.  It must
be because of all this and possibly more that approval of
plans and
supervision of construction are key to the realisation of what the
Building Standards Act is about.
[74]
What
one gleans from the preceding paragraph is that, in addition to the
possibility of harm to the owner and occupants of the property
to be
developed, a development may have adverse effects on the rights
[120]
of owners of neighbouring properties.  It is for this reason
that in
Walele
this Court decided that section 7 of the Building Standards Act,
which is at the heart of the approval process, should be construed
in
a manner that promotes the implicated rights consistently with the
obligation imposed on courts by section 39(2) of the
Constitution.
[121]
[75]
The majority in
Walele
correctly identifies key principles relating to the process of
exercising the power to approve building plans.
First,
the decision-maker must consider the building control officer’s
recommendation made in terms of section 6.  Secondly,
if she is
satisfied that the application for approval complies with the
requirements of the Building Standards Act and other applicable
law,
she must grant the approval.  Section 7(1)(b) provides that if
the decision-maker is not satisfied that the application
complies
with the necessary requirements, she shall refuse to grant approval.
If the decision-maker is satisfied that the
disqualifying
factors will in fact or probably be triggered, she “shall
refuse to grant [her] approval in respect thereof
and give written
reasons for such refusal”.
[76]
Whether this Court’s interpretation
of section 7(1)(b)(ii) in
Walele
is clearly wrong concerns the level of satisfaction that a local
authority must reach in exercising its power in terms of this

section.  It does not concern onus, that is, who it is that
bears the duty to satisfy the local authority on the disqualifying

factors.  The latter issue is not before us.
[77]
Shorn
of detail, the substance of the criticism against the majority
interpretation in
Walele
is
two-fold.  First, this interpretation is considered burdensome
to municipalities and impractical, in particular on the showing
of
derogation from the market value of neighbouring properties.
[122]
The view is that, because
Walele
insists that the decision-maker must be positively satisfied that the
disqualifying factors do not exist before approving plans,
this will
entail the engagement of, for example, valuers by the municipality
once there is a dispute on the relevant issue.
And this is
something municipalities can ill afford.  Second, the
Walele
majority is said to ignore the plain wording of section 7(1)(b)(ii).
That plain wording – continues the criticism
is to the
effect that a local authority must only refuse to grant approval of
plans if satisfied that the disqualifying factors
will in fact or
probably eventuate.  This is different from requiring the local
authority to approve plans only if it is satisfied
that the
disqualifying factors will not eventuate.
[123]
I next deal with these bases of criticism, one after the other.
Burdensomeness
[78]
The notion that
Walele
causes an undue burden on local authorities is exaggerated.
Starting with derogation of value, what
Camps
Bay Ratepayers
said is instructive:
“
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.
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.”
[124]
[79]
This
tells us that the determination of derogation of value should be a
matter of relative ease.  It gives a lie to the notion
that
whenever a dispute on derogation of value has been raised, the
decision-maker must engage a valuer in order to meet the
Walele
threshold of satisfaction in terms of section 7(1)(b)(ii) of the
Building Standards Act.
[125]
If derogation of value is raised in the context of an acceptance that
there has been compliance with restrictions imposed
by law, there
will be derogation of value as envisaged in section 7(1)(b)(ii) only
if “
the
new building . . . is, for example, so unattractive or intrusive that
it exceeds the legitimate expectations of the parties
to the
hypothetical sale”.
[126]
This must be easy to determine for any decision maker worth
their salt.  Unattractiveness and intrusiveness are
matters of
fact on which it should not be difficult to make a judgment call.
This is equally true of the other disqualifying
factors, such as
disfigurement of an area,
[127]
unsightliness or objectionableness,
[128]
and danger to life or property.
[129]
[80]
The
Building Standards Act requires a building control officer to have a
certain level of qualification.  Section 5(2) provides
that,
unless the Minister approves otherwise in writing, a person may be
appointed as a building control officer only if she has
the
qualifications prescribed by the national building regulations.
[130]
Of the qualifications and what a building control officer is required
to do, Heher JA said, correctly:
“
The
building control officer for which the Act provides is a [person]
likely to possess professional and practical experience in
at least
civil engineering, structural engineering, architecture, building
management, building science, building surveying or
quantity
surveying.  [She] will also have access to advice in relation to
by-laws and town-planning legislation applicable
within [her] local
authority area.  The primary facts of the proposed erection will
be apparent from the documents submitted
under section 4, and, if
they are not, [she] will seek clarification in writing, by discussion
with the applicant or his representative
or on the ground by physical
inspection.  If the evidence available to [her] justifies such
investigations [she] may consider
it appropriate to draw a
potentially affected neighbour into the process.  Thereafter
[she] will make a value judgment based
on the established facts and
probabilities, applying [her] experience, as to whether any
disadvantage will result to a neighbouring
property which would not
be known to or expected by informed parties in the purchase and sale
of that property.”
[131]
[81]
Based
on the value judgment,
[132]
the building control officer will make a recommendation to the local
authority in terms of section 6(1) of the Building Standards
Act.
The decision-maker, who – needless to say – must not
simply rubber stamp the building control officer’s

recommendation, must either approve or reject the plans.  On any
interpretation, the level of scrutiny by the decision-maker
will
depend on the facts of each case.  A proposed development may –
depending on, for example, the bulk, height, general
aesthetic
character and other characteristics – compare so favourably
with existing developments as to warrant approval of
its plans
without much effort.  Even in that instance, there must still be
a proper application of the mind to the issues
at hand.  On the
other extreme, a proposed development may be so out of character in
relation to what exists in the area that
the level of scrutiny may
have to be heightened.
[82]
In
instances where the decision-maker is not in a position to determine
an application for approval with relative ease, she is at
liberty to
interact with the suitably qualified functionary within the local
authority; namely, the building control officer.
[133]
There are no Chinese walls separating the two functionaries.  As
it was said in
Walele
,
“[a]s a specialist the building control officer is best suited
to advise the decision-maker about disqualifying factors”.
[134]
The building control officer may shed light on whatever issues on
which the decision-maker may require clarity.  Input
from a
building control officer may, depending on the circumstances, satisfy
the decision maker that none of the disqualifying
factors
exists.  Should it be warranted, an expert, like a valuer, may
have to be engaged.  This is a far cry from the
suggestion that
an expert may have to be appointed at every turn.
[135]
And contrary to some of the criticism,
Walele
makes no such suggestion.
[83]
Satisfaction
that the disqualifying features do not exist is determined on the
standard of preponderance of probabilities.
[136]
This is not about the mere
possibility
of the existence of these features.  Where there is a dispute,
the decision-maker must weigh the information placed before
her.
If satisfied that the disqualifying features do not exist, she must
approve the plans.  In the case of derogation
of value, the
clarification in
Camps
Bay Ratepayers
is of tremendous assistance.
[137]
[84]
The short point: the circumstances of each
case predominate.  And what
Camps
Bay Ratepayers
says further dispels any
notion that
municipalities must determine
the market value of adjoining properties each time they consider
building plans.  Regarding the
other disqualifying factors, it
cannot be all that difficult for a decision maker to make a
determination.  On these,
and on derogation of value,
clarification may be sought from the building control officer where
that becomes necessary.  An
expert may have to be appointed if,
after it all, that is still considered necessary; and there is
nothing the matter with that.
Surely, this will be in rare
instances.
[85]
One assumes that municipalities will play
their part and appoint as decision makers only people with an
aptitude to apply their
minds to applications properly and, where
necessary, engage building control officers meaningfully and be
capable of assimilating
feedback from them.  If municipalities
appoint people who are not suitably qualified, practical difficulties
are likely to
arise.  But then, those difficulties will most
likely be the result of the unsuitability of the incumbents, and not
the function
of the
Walele
interpretation.  With an unsuitable decision-maker in office,
even the
True Motives
approach is not immune from practical difficulties.
Disregard
of plain wording of section 7(1)(b)(ii)
[86]
Adverting
to the second basis of criticism of the
Walele
majority,
[138]
I do not
propose to render the “plain meaning” of the section.
Suffice it to say that what I set out above as
the
True
Motives
approach captures the essence of that meaning.  For me the
question is whether
Walele
is clearly wrong in not having adopted that meaning.  I simply
cannot say so.
[87]
Undeniably, the interpretation of statutory
provisions is about establishing their meaning.  This Court has
stressed that the
purpose of a statute is central to the interpretive
process and that, in considering the purpose, we must strive to
promote the
spirit, purport and objects of the Bill of Rights.
In
Goedgelegen
Moseneke DCJ opined that, when interpreting legislation—
“
we
are obliged to scrutinise its purpose.  As we do so, we must
seek to promote the spirit, purport and objects of the Bill
of
Rights.  We must prefer a generous construction over a merely
textual or legalistic one in order to afford claimants the
fullest
possible protection of their constitutional guarantees.”
[139]
[88]
We
will recall that the Building Standards Act aims to prescribe
building standards.
[140]
Prescribing building standards is not an end in itself.  As much
as it is about the rights of people seeking to develop
their
properties, it is also about the protection of the rights of owners
of neighbouring properties.
[141]
[89]
The
Walele
approach is less susceptible – if at all – to an overly
relaxed level of scrutiny insofar as the rights of owners of

neighbouring properties are concerned.  It better protects the
rights of these owners.  It is more consonant with the

provisions of section 39(2) of the Constitution.  Of course, the
rights of prospective property developers are also deserving
of
protection.  On the weighing up exercise proposed above,
informed as it is by
Camps
Bay Ratepayers
where derogation of value is in issue,
[142]
I do not see any likelihood of harm in this regard.  The
discussion of section 10 below bolsters the view that this
interpretation in fact does protect the rights of property developers
as well.
[90]
The overemphasis of the apparent meaning of
particular words in a statutory provision may overlook, not only the
need to interpret
the words in the light of the Constitution, but
also the overall context presented by the statute.  In
Bato
Star
Ngcobo J said:
“
I
am troubled therefore by an interpretative approach that pays too
much attention to the ordinary language of the words ‘have

regard to’.  That approach tends to isolate section 2(j)
and determine its meaning in the ordinary meaning of the words
‘have
regard to’.  It ‘ignores the colour given to the
language by the context’.  That context
is the
constitutional commitment to achieving equality, the foundational
policy of the Act to transform the industry consistent
with the
Constitution and the Act read as a whole.  The process of
interpreting the Act must recognise that its policy is
founded on the
need both to preserve marine resources and to transform the fishing
industry, and the Constitution’s goal
of creating a society
based on equality in which all people have equal access to economic
opportunities.”
[143]
(Footnote omitted.)
[91]
The
provisions of section 10 of the Building Standards Act
[144]
buttress the
Walele
approach.
I
read this section to apply to an opinion formed by the local
authority after approval of plans.  In the face of these
provisions,
it makes sense that at the stage of approval a
municipality should, as far as possible, satisfy itself that, post
approval, it
will not find itself having to invoke the provisions of
section 10.  To say otherwise would amount to a
compartmentalised
– as opposed to a contextualised –
interpretive process.  In fact, it is absurd that a local
authority may not
positively satisfy itself of the non-existence of
the disqualifying factors in section 7(1)(b)(ii) when approving
plans, only to
take the stringent measures provided for in section 10
when it later becomes satisfied of the existence of the corresponding
factors
set out in section 10.
[145]
The stringent measures include the outright halting of construction
that may have commenced already.  This would be
financially
ruinous to the person developing the property concerned.  If the
municipality satisfies itself of the non existence
of the
disqualifying factors at the stage of approval, the risk of financial
harm and other possible adverse effects is minimised.
On this
approach, section 10 may be invoked only in the rare instances where,
despite best efforts undertaken in terms of section
7(1)(b)(ii) and
in accordance with the
Walele
approach, the negative factors contained in section 10 still manifest
themselves.
[92]
On the contrary, interpreting section
7(1)(b)(ii) in the context of section 10 does not give rise to any
absurdity.  An interpretation
of the section that says plans
should be approved without the relatively higher level of scrutiny
that the
Walele
majority insists on, only to expose the property developer to the
possible halting of construction and all the other stringent
measures
that may be taken in terms of section 10, does not necessarily trump
one that is more likely to avert these possible negative

consequences.  The
True Motives
interpretation, which puts developers at a greater risk of the
stringent measures, can hardly be said to demonstrate sufficiently

that the
Walele
interpretation is clearly wrong.
[93]
The significance of section 10 is that some
of the factors it itemises correspond with those contained in section
7(1)(b)(ii).
Section 10(1)(a)(ii) corresponds with section
7(1)(b)(ii)(aa)(bbb).  And section 10(1)(a)(iv) corresponds with
section
7(1)(b)(ii)(aa)(ccc).
The fact that the sections do not correspond 100 per cent cannot
detract from the view I take.
[94]
It
is true that this Court has cautioned against straining the language
of a statutory provision in the quest to interpret it in
a manner
consonant with the Constitution.
[146]
Yes,
where that caution finds application, it must be heeded.  But
that caution was never intended to drive courts to cower
timorously
into a corner and not do that which the Constitution in section 39(2)
enjoins them to do in deserving cases.  Viewed
in the context of
section 10, this Court’s interpretation of section 7(1)(b)(ii)
in
Walele
cannot appropriately be said to be unduly strained.  On the
contrary, there is more than sufficient reason to say that the
Walele
meaning can be reasonably ascribed to the section.
[95]
I remain unconvinced that the
interpretation of section 7(1)(b)(ii) in the majority judgment in
Walele
is
clearly wrong.  That there is something to be said for the other
interpretation is not enough.  In the event, this
Court is bound
by
Walele
.
The interpretation contended for by
the applicant must
prevail.  But must he succeed on the claim
that there was an improper exercise of the section 7(1)(b)(ii) power?
Must
the applicant succeed on the facts?
[96]
I
think not.  First,
the
applicant’s
valuation
evidence was based on the 2005 plans.  Relying on those he
sought to prove derogation from the market value
of his property.
The 2005 plans differ materially from the 2006 ones, and they do so
on features that matter.  The 2006
plans addressed a previous
complaint relating to encroachment onto the side spaces: one
apartment block was moved 12 metres down
the slope.  This had a
significant, positive impact on the view that the applicant, whose
property is up the slope, enjoys
and – possibly – the
market value of his property, if it would have been affected at
all.
[147]
Second,
there is nothing to indicate that, based on what was before the
decision-maker, there was not enough to satisfy him
that the proposed
construction would not in fact or probably derogate from the market
value of the applicant’s property.
Third, it is necessary
to view issues relevant to derogation from market value in the light
of what this Court said in
Camps
Bay Ratepayers
.
[148]
[97]
Yet again, I do not see enough material to
fault the decision of Mr Van der Walt.  In the result, the
applicant must fail on
all his contentions.
Costs
[98]
The applicant has failed on all counts in
his bid to review the decision of the Municipality.  He also
made unsubstantiated
allegations of bias against the Municipality
which this Court views in a serious light.  This Court in
Affordable Medicines
articulated the following rule:
“
The
award of costs is a matter which is within the discretion of the
court considering the issue of costs.  It is a discretion
that
must be exercised judicially having regard to all the relevant
considerations.  One such consideration is the general
rule in
constitutional litigation that an unsuccessful litigant ought not to
be ordered to pay costs. . . .  There may be
circumstances that
justify departure from this rule such as where the litigation is
frivolous or vexatious.  There may be
conduct on the part of the
litigant that deserves censure by the court which may influence the
court to order an unsuccessful litigant
to pay costs.  The
ultimate goal is to do that which is just having regard to the facts
and circumstances of the case.”
[149]
[99]
The applicant comes very close to deserving
a costs order against him insofar as the Municipality’s costs
are concerned.
Although, as the judgment shows amply, his
conduct warrants censure, I stop just shy of making that
order.  What swayed me the other way was that a significant part
of
the judgment deals with a subject on which – on the law –
his contentions were meritorious; and that is the interpretation
of
section 7(1)(b)(ii) of the Building Standards Act.  There
should be no costs order in favour of the Municipality.
None of
these considerations apply to Pearl Star, a private entity.
Order
[100]
The following order is made:
1.
The late filing of the record and written
submissions by the applicant is condoned.
2.
Leave to appeal is granted.
3.
The appeal is dismissed.
4.
The applicant must pay the second
respondent’s costs in this Court.
FRONEMAN
J (Cameron J and Van der Westhuizen J concurring):
[101]
I
agree with the reasoning and outcome of the judgment of my brother,
Madlanga J (main judgment), except for one issue.  The
main
judgment characterises that issue as a conflict between this Court’s
decision in
Walele
and that of the Supreme Court of Appeal in
True
Motives
,
which must be dealt with head-on.
[150]
I disagree with that characterisation.  There is certainly
contestation concerning
Walele
’s
true import, but it is not primarily about the extent of the doctrine
of precedent or the parts of an appellate court’s
judgment that
are binding.  To characterise the issue as a
Walele
–
True
Motives
conflict is potentially divisive and unnecessarily so.
[102]
Its
potential for divisiveness is obvious.  Members of this Court
have expressed different views on the conflict whilst serving
in the
Supreme Court of Appeal.
[151]
Nobody can doubt that they did so on reasonably held and genuinely
contested views.  Judges reasonably differ from time
to time.
Unless there is a pressing need to resolve the conflict, it is time
to move on.  There is no pressing need
to resolve this conflict
other than by determining the proper reach of
Walele
.
This Court, in
Camps
Bay Ratepayers
,
made important findings about underlying aspects of the reasoning in
Walele
.
[152]
These have a major bearing on the extent of
Walele
’s
findings on section 7(1)(b)(ii) of the Building Standards Act.
The High Court did not give adequate recognition
to this.  In
addition, the questions of precedent and what parts of a judgment are
binding were not only adequately dealt
with in
Camps
Bay Ratepayers
,
but also provide no assistance in deciding the real issue before us,
namely the true import of
Walele
in the light of this Court’s subsequent unanimous decision in
Camps
Bay Ratepayers
.
[103]
The
supposed
Walele
–
True
Motives
conflict
should never have arisen in this case.  The High Court decided
the matter on the basis that this Court did not pronounce
on the
True
Motives
–
Walele
controversy in
Camps
Bay Ratepayers
and that it could follow the Supreme Court of Appeal’s approach
in
True
Motives
.
This is wrong.
Camps
Bay Ratepayers
is no authority for the proposition that
True
Motives
is still good law.  Although, on the facts, Brand AJ came to the
conclusion that the applicants did not bring their case within
the
ambit of section 7(1)(b) of the Building Standards Act,
[153]
in the course of coming to that conclusion he dealt with important
aspects that clarified
Walele
’s
impact.
True
Motives
was decided before
Camps
Bay Ratepayers
.
The High Court was thus bound to follow this Court’s later
clarification of
Walele
.
[104]
The
real issue before us is the true reach of section 7(1)(b)(ii) as
interpreted in
Walele
,
given
Camps
Bay Ratepayers
’
clarification of what is meant by “derogation from market
value” in section 7(1)(b)(ii).  Once that is
done, the
further contentious issue arises whether we should re-examine the
correctness of that outcome and depart from it or further
clarify
it.
[154]
This enquiry
does not, however, depend on an examination of the doctrine of
precedent and the distinction between the binding
and non-binding
parts of
Walele
.
The legal position in relation to those issues was dealt with fully
in
Camps
Bay Ratepayers
and is not necessary to revisit.
[105]
The
judgment in
Walele
[155]
relied in part on the Supreme Court of Appeal decision in
Paola
in finding that section 7(1)(b)(ii) requires that the decision-maker
must be satisfied that none of the section’s disqualifying

factors will be triggered before approving plans:
“
Accordingly
the decision-maker must be satisfied of two things before granting
approval.  The first is that he or she
must
be satisfied
that there is compliance with the necessary legal requirements.
Secondly, he or she
must
also be satisfied
that none of the disqualifying factors in section 7(1)(b)(ii) will be
triggered by the erection of the building concerned.
This
is so because any approval of plans facilitating the erection of a
building which devalues neighbouring properties, for example,
is
liable to be set aside on review.  An approval can be set aside
on this ground irrespective of whether or not the decision-maker
was
satisfied that none of the disqualifying factors would be triggered.
All that is needed for an applicant to succeed is
to prove to
the satisfaction of the reviewing court that the erection of the
building will reduce the value of his or her property.
The
legislature could not have intended to authorise an invalid exercise
of power.  In order to avoid this consequence,
the
decision-maker must at least be satisfied that none of the
invalidating factors exist before he or she grants approval.
”
[156]
(Footnotes omitted and emphasis added.)
[106]
This also buttressed the finding that
neighbours had no right to a hearing before approval:
“
On
this interpretation section 7 creates an adequate self-contained
protection which safeguards the rights of owners of neighbouring

properties.  As a result it becomes unnecessary for such owners
to be heard before the approval is granted.”
[157]
[107]
In
Camps Bay
Ratepayers
the applicants sought to
rely on precisely this ground – the derogation of value of
their properties – as a review
ground under
section 7(1)(b)(ii).  Their contention was rejected:
“
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.
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 . . . .
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.
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.
”
[158]
(Footnotes omitted and emphasis added.)
[108]
It
must also be remembered that all the disqualifying factors in
section 7(1)(b)(ii) – disfigurement, unsightliness,

objectionability, derogation of value and danger to life and property
– must “probably or in fact” be present
before the
decision-maker may refuse to grant her approval.
[159]
[109]
Camps Bay Ratepayers
makes
it clear that it is not necessary for a local authority to assess the
possible derogation of value of neighbouring properties
each time
before it approves building plans.  Only where the building will
probably or in fact
disfigure
the area, be unsightly or objectionable, or present a danger to life
and property, to the extent that the legitimate expectations
of
parties to a hypothetical sale will be exceeded, will the possibility
of a derogation of value of a neighbouring property come
to the
fore.  It requires little imagination to see that these will be
rare occurrences.
[110]
Even
where derogation of value is not the relevant disqualifying factor,
determining the probable or factual existence of disfigurement
to
areas, unsightliness and objectionability of buildings and danger to
life and property is a relatively simple task.  These
involve
value judgments that can easily be made on reasonable grounds and
will normally be difficult to challenge as being unreasonable.

And the effect of the
Walele
approach, namely that it is the obligation of the local authority to
ensure the absence of the disqualifying factors,
[160]
would, as clarified in
Camps
Bay
Ratepayers
,
rarely lead to an inability to assess their probable or factual
absence or presence.
[111]
Section
7(1)(b)(ii) obliges a decision-maker to make a finding whether each
of the triggering factors in the section probably or
in fact
exists.
[161]
If she
finds that they do probably or in fact exist, then she must refuse to
grant the application.  If she finds that
they do not probably
or in fact exist, she must grant the application.  The section
must not be construed to mean that if
the decision-maker is in doubt
on whether there was compliance with each of the subsections, she
must decline an application.
Instead, it must be interpreted to
mean that if the decision-maker is uncertain, she must herself
investigate the matter so as
to be satisfied that there was
compliance or that there was no compliance.
[162]
[112]
Having
determined the reach of
Walele
,
as clarified in
Camps
Bay Ratepayers
,
it becomes necessary to determine whether we should reconsider and
depart from or further clarify these earlier decisions.
We
stated in
Camps
Bay Ratepayers
that “[t]he 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.”
[163]
It can be argued that the paragraphs quoted above
[164]
from this Court’s unanimous judgment in
Camps
Bay Ratepayers
show that an important underlying reason for the interpretation of
section 7(1)(b)(ii) adopted in
Walele
– “any approval of plans facilitating the erection of a
building which devalues neighbouring properties, for example,
is
liable to be set aside on review”
[165]
– was overstated and thus requires reconsideration.
Aligned to that is the fact that the
Walele
interpretation is also alleged to run contrary to the plain meaning
of the section in its structured context.  I would not
go that
route.
[113]
Read
together with the important clarification of its ambit in
Camps
Bay Ratepayers
,
the decision in
Walele
does not have to lead to any great difficulty or disruption in the
practical application by local authorities of the provisions
of
section 7(1)(b)(ii).  This was one of the major concerns,
expressed in
True
Motives
,
about the effect of the original decision in
Walele
.
The other main concern was the alleged disregard of the plain meaning
of language.  I agree that we should be cautious
not to depart
from the plain meaning of language, but I am less confident that
Walele
itself
[166]
departed from
the plain meaning.  This Court should not shy away from
correcting its mistakes if they lead to injustice, but,
given the
clarification of
Walele
in
Camps
Bay Ratepayers
,
this does not arise here.
For
the Applicant: N D Lange instructed by Preston
Whyte
& Associates.
For
the First Respondent: A M Annandale SC instructed by
Seethal
Attorneys.
For
the Second Respondent: E S Crots and S Pudifin-Jones
instructed
by Louis Hansmeyer
Attorneys.
For
the Amicus Curiae: P J Olsen SC instructed by Messrs
Naidoo
Maharaj Inc.
[1]
The
events around which this litigation centres commenced more than a
decade ago.
[2]
The
first respondent.
[3]
The
second respondent.
[4]
The
applicant.
[5]
The
applicant is the registered owner of property described as the
remainder of Lot 75 Ramsgate situated at the South Coast in

KwaZulu-Natal.  The applicant’s property has a common
boundary with a property described as Lot 3371 owned by Pearl
Star.
The applicant’s property overlooks Lot 3371, with a 180 degree
sea view of the Indian Ocean.  Both properties
are
residential.  However, Lot 75 is zoned for use as a guest
lodge.
[6]
Because
of concurrent jurisdiction, sometimes litigation between the parties
would be in the KwaZulu-Natal High Court, Pietermaritzburg
and at
other times in the KwaZulu-Natal High Court, Durban.  For
convenience, hereafter I use “High Court” without

drawing any distinction between the two Courts.
[7]
103
of 1977 (Building Standards Act or Act).
[8]
Id,
long title.
[9]
In
terms of section 13 minor building work may be exempted from the
obligation of submitting plans for approval.
[10]
Section
4(1).  Section 4(4) criminalises non-compliance.
[11]
See
section 6, titled “Functions of building control officers”.
Section 15(1) empowers the building control
officer to enter any
building or land for purposes of the proper performance of his or
her functions.  Section 15(2)
criminalises the obstruction
or hindrance of a building control officer in the exercise of this
power.
[12]
Section
17(1)(b) and (7).
[13]
Section
6(1) provides:
“
A
building control officer shall—
(a)
make recommendations to the local authority in question, regarding
any plans, specifications, documents and information submitted
to
such local authority in accordance with section 4(3);
(b)
ensure that any instruction given in terms of this Act by the local
authority in question be carried out;
(c)
inspect the erection of a building, and any activities or matters
connected therewith, in respect of which approval referred
to in
section 4(1) was granted;
(d)
report to the local authority in question, regarding non-compliance
with any condition on which approval referred to in section
4(1) was
granted.”
[14]
For
ease of reference I refer to the factors in (aaa), (bbb), (ccc) and
(bb) as “disqualifying factors”.
[15]
27
of 1949.
[16]
Now
the Hibiscus Coast Municipality.
[17]
Planning
Scheme at clause 1.2.
[18]
Id
at clause 1.7.
[19]
Id
at Table 1a read with clause 4.2.6.
[20]
Id.
[21]
The
regulatory matrix at [7] shows that the Planning Scheme allows the
construction of buildings up to six storeys high (see clause
4.26).
Buildings over three storeys must be recessed away from the normal
side spaces by a specified distance for each
additional storey,
subject to relaxation or special consent.  See Table 1a of the
Planning Scheme.
[22]
Mr
Van der Walt is the Municipal Director for Development and
Planning.  He was the decision-maker in respect of all plans

submitted for approval by Pearl Star.  Unlike the building
control officer, a decision-maker is not specifically provided
for
in the Building Standards Act.  Rather, he or she is an
official to whom the municipal power to take decisions on

applications for approval of building plans is delegated by a
municipality; and this delegation is made in terms of section 28(4)

of the Building Standards Act.
[23]
The
applicant launched an appeal in terms of section 62(1) of the Local
Government: Municipal Systems Act 32 of 2000 (Systems
Act).
Section 62(1) provides:
“
A
person whose rights are affected by a decision taken by a political
structure, political office bearer, councillor or staff
member of a
municipality in terms of a power or duty delegated or sub-delegated
by a delegating authority to the political structure,
political
office bearer, councillor or staff member, may appeal against that
decision by giving written notice of the appeal
and reasons to the
municipal manager within 21 days of the date of the notification of
the decision.”
[24]
For
the definitions of basement and storey, see [8].
[25]
See
[7].
[26]
See
clause
9.2
of the Planning Scheme quoted at [9].
[27]
The
applicant had furnished Mr Van der Walt and Pearl Star with an
opinion from a property valuer that construction of the proposed

blocks of flats would diminish the value of his property by 20 to 30
per cent.
[28]
Walele
v City of Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC);
2008 (11) BCLR 1067
(CC)
(
Walele
)
at para 19.
[29]
City
of Cape Town v Reader and Others
[2008] ZASCA 130
;
2009 (1) SA 555
(SCA) (
Reader
)
at paras 30-1.
[30]
Above
n 23.
[31]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[2004]
ZASCA 48
;
2004 (6) SA 222
(SCA) (
Oudekraal
)
at para 26.  The Supreme Court of Appeal held:
“
U
ntil
the Administrator’s approval (and thus also the consequences
of the approval) is set aside by a court in proceedings
for judicial
review it exists in fact and it has legal consequences that cannot
simply be overlooked.  The proper functioning
of a modern State
would be considerably compromised if all administrative acts could
be given effect to or ignored depending
upon the view the subject
takes of the validity of the act in question.  No doubt it is
for this reason that our law has
always recognised that even an
unlawful administrative act is capable of producing legally valid
consequences for so long as
the unlawful act is not set aside.”
[32]
At
the hearing of the application to review the decision to refuse the
appeal counsel for the Municipality told the High Court
that,
because all the parties were under the mistaken belief that it was
open to the applicant to appeal, the Municipality would
not take the
point that proceedings for the review of the decision to approve the
2006 plans were out of time.  It was in
this context that the
High Court granted the applicant leave to launch proceedings for the
review of the 2007 approval.
[33]
An
application to the Supreme Court of Appeal for leave to appeal was
unsuccessful.
[34]
Rendering
them as intelligibly as possible, they are the issue of bias (see
section 6(2)(a)(iii) of the Promotion of Administrative
Justice Act
3 of 2000 (PAJA)); the usurpation argument which, in a sense, seems
to raise a
vires
(power) issue; and a challenge – apparently based on PAJA –
questioning the 2007 approval perceived to have been
granted
contrary to the provisions of applicable law (see section 6(2)(f)(i)
of PAJA).  Section 6(2)(a)(iii) and (f)(i)
of PAJA
provides:
“
(2)
A court or tribunal has the power to judicially review an
administrative action if—
(a)
the administrator who took it—
.
. .
(iii)
was biased or reasonably suspected of bias;
.
. .
(f)
the action itself—
(i)
contravenes a law or is not authorised by the empowering provision”.
[35]
Quoted
in full at [4].
[36]
True
Motives 84 (Pty) Ltd v Mahdi and Another
[2009] ZASCA 4
;
2009 (4) SA 153
(SCA);
2009 (7) BCLR 712
(SCA) (
True
Motives
)
at para 35.
[37]
Above
n 28.
[38]
The
interpretation of this section by this Court and the Supreme Court
of Appeal is dealt with later.
[39]
Section
39(2) of the Constitution provides that “[w]hen interpreting
any legislation . . . every court, tribunal or forum
must promote
the spirit, purport and objects of the Bill of Rights.”
[40]
Camps
Bay Ratepayers’ and Residents’ Association and Another v
Harrison and Another
[2010]
ZACC 19
;
2011 (4) SA 42
(CC);
2011 (2) BCLR 121
(CC) (
Camps
Bay Ratepayers
)
at para 27.
[41]
I
make a deduction from evidence – in
True
Motives
above n 36 at para 45 – which revealed that the City of
Johannesburg alone received 1 500 new applications per month in

2004.
[42]
In
Camps
Bay Ratepayers
above n 40 at para 27 this Court said 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” and that “[t]his could
hardly promote
sound and uniform public administration.”
[43]
In terms of this Court’s directions, the applicant was
required to file the record not later than 29 October 2013 and to

lodge written argument by 12 November 2013.
The
record was filed on 7 November 2013.  The written submissions
were filed on 25 November 2013, a
day
before the respondents’ written submissions were due to be
filed.
[44]
See
relevant factors itemised at [23].
[45]
Van
Wyk v Unitas Hospital and Another
[2007]
ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20 and
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC)
(
Brummer
)
at para 3.
[46]
Brummer
id.
[47]
Grootboom
v National Prosecuting Authority and Another
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC) at para
32.
[48]
Id
at para 23
and
Saloojee
and Another, NNO v Minister of Community Development
1965
(2) SA 135
(A) at 138E.
[49]
Saloojee
id at 140H-141B.  See also
Reinecke
v Incorporated General Insurances Ltd
1974
(2) SA 84
(A) at 92F where the Appellate Division held that
“[t]his Court is understandably loath to penalise a blameless
litigant
on account of his attorney’s negligence”.
[50]
Ferris
and Another v Firstrand Bank Limited and Another
[2013]
ZACC 46
;
2014 (3) SA 39
(CC),
2014 (3) BCLR 321
(CC) at para 11.
There
the applicants “blame[d] their late filing of the application
on their correspondent attorney”, this Court said
that “this
explanation is less than satisfactory.”
[51]
Saloojee
above n 48 at 141C-E.  See also
Universal
Product Network (Pty) Ltd v Mabaso and Others
[2003]
ZALC 12
; (2006) 27 ILJ 991 (LAC) at para 18.
[52]
Section
33(1) of the Constitution provides that “[e]veryone has the
right to administrative action that is lawful, reasonable
and
procedurally fair.”
[53]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999]
ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) (
SARFU
)
at para 45.  Although this was said in respect of complaints
against judges, it is apposite in the context of administrators
as
well.
[54]
S
v Roberts
1999
(4) SA 915
(SCA) at paras 32-4.  This case too concerned a
claim of bias against a judicial officer.  Yet again, I find
the test
suitable to administrators.
[55]
De
Lacy and Another v South African Post Office
[2011]
ZACC 17
;
2011 (9) BCLR 905
(CC) (
De
Lacy
)
at paras 67 and 72.
[56]
I
understand this to be a suggestion of actual, albeit “reactive”,
bias.
[57]
This,
of course, being a reliance on “reactive” perceived
bias.
[58]
De
Lacy
above
n 55 at para 72 and
SARFU
above n 53 at para 48.
[59]
See
[10]-[15].
[60]
Here
are the additional bases.  First, the applicant contended that
the decisions arrived at by Mr Van der Walt to approve
the building
plans were so wrong that he had to have been biased to make them.
Second, it so happened that the Municipality
had made a patent error
in its affidavits regarding who had approved the 2006 plans.
The affidavits initially said
it was a Mr Naidoo who had made the
approval (the 2007 approval).  The reality was that Mr Van der
Walt had made the approval.
The Municipality corrected this
error by means of evidence on affidavit.  The applicant claimed
that this evinced an “intent
to cover up” on the part of
the Municipality which, in context, supported the contention that Mr
Van der Walt was biased
against the applicant.
Third,
bias can be grounded on Mr Van der Walt allegedly entertaining a
visit from Pearl Star to nullify concerns that an updated

environmental report was necessary for purposes of the revised 2006
plans.
Fourth,
the applicant contended that the existing structure was not taken
into account for purposes of determining the plan submission
fee;
thus the fact that Pearl Star was charged a plan submission fee that
was less than what it ought to have paid is an apparent
indication
of a favourable disposition towards Pearl Star.  What
substantiation there is of these claims to demonstrate
bias is
baseless.  As I say, all must fail.
[61]
In
Glenister
v President of the Republic of South Africa and Others
[2011] ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC) at para
57, this Court stated:
“
Corruption
has become a scourge in our country and it poses a real danger to
our developing democracy.  It undermines the
ability of the
government to meet its commitment to fight poverty and to deliver on
other social and economic rights guaranteed
in our Bill of Rights.”
[62]
The
rule 53 record contained documents the decision-maker considered to
pass or fail the building plans.  It was produced
in terms of
rule 53 of the Uniform Rules of Court by the Municipality in the
review proceedings that are the subject of this
appeal.  In
relevant part, rule 53(1)(b) provides:
“
Save
where any law otherwise provides, all proceedings to bring under
review the decision or proceedings of any inferior court
and of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of notice
of motion
directed and delivered by the party seeking to review such decision
or proceedings to the magistrate, presiding officer
or chairman of
the court, tribunal or board or to the officer, as the case may be,
and to all other parties affected . . . calling
upon the magistrate,
presiding officer, chairman or officer, as the case may be, to
despatch, within fifteen days after receipt
of the notice of motion,
to the registrar the record of such proceedings sought to be
corrected or set aside, together with such
reasons as he is by law
required or desires to give or make, and to notify the applicant
that he has done so.”
[63]
Above
n 40 at para 34.
[64]
Above
n 36 at para 31.
[65]
See
[16].
[66]
High
Court judgment at para 69.
[67]
Id.
[68]
Id.
[69]
Camps
Bay Ratepayers
above n 40 at paras 14 and 34 and
Walele
above n 28 at paras 66, 70 and 72.
[70]
Walele
id at para 71.
[71]
Id
at para 72.
[72]
Id.
[73]
Id
at para 69.
[74]
Id
at para 70.
[75]
The
checklist or pro-forma was accompanied by: Pearl Star’s
application for approval of building plans; architectural compliance

certificate; appointment form for professional engineer; deed of
transfer; record of plans distribution; circulation comment
sheet:
Building Control; circulation comment sheet: Traffic Department;
letter from Dippenaar and Lapage to Pearl Star regarding
traffic
impact assessment of development; letter from Dippenaar and Lapage
to Evening Star Trading 10 regarding assessment of
internal roads of
proposed development on Lot 3371 Margate; circulation comment sheet:
Building Inspection; circulation comment
sheet: Health Department;
circulation comment sheet: Fire and Rescue Department; Municipal
Protection Services Fire Department:
Plan Evaluation Report;
circulation comment sheet: Maintenance; circulation comment sheet:
Town Planning; circulation comment
sheet: Environmental Department;
letter from KZN Agriculture and Environmental Affairs to Pearl Star
regarding opinion for applicability
of environmental impact
assessment regulations to Erf 3371; Environmental Management plan
for Erf 3371; Ugu District Municipality
plans approval form; Tax
Invoice Statement from Ugu District Municipality to Pearl Star;
Original Plan for Erf 3371 indicating
area of encroachment; letter
from Hudson Naude and Kirby to Susal Construction regarding extract
from cut and fill calculation
from Mr K McDonagh of Modelmaker
Systems; and a letter from Hudson Naude and Kirby to Pearl Star
enclosing copy of contour plan,
and Pearl Star plans.
[76]
Above
n 36.
[77]
Above
n 28.
[78]
Above
n 40.
[79]
Id
at para 47.
[80]
Id
at paras 38-40.
[81]
Id
at para 40.
[82]
Id.
[83]
Id.
To illustrate the distinction in practical terms, in
Camps
Bay Ratepayers
the derogation of value complained of was said to flow from an
“alleged contravention of legally imposed restrictions”,

which, in accordance with what this Court held at para 40, was a
section 7(1)(a) issue.  In para 41 the essence of the complaint

is explained thus: “the planned building would contravene the
height restrictions of the Zoning Scheme Regulations and
the setback
requirements of the title deed conditions.”  For a fuller
picture, see paras 41-3.
[84]
Id
at para 44.
[85]
Quoted
in full at [4].
[86]
Walele
above n 28 at para 55.  The ellipsis relates to what, in
context, is based on an earlier holding regarding the effect of
the
judgment in
Paola
v Jeeva and Others
[2003] ZASCA 100
;
2004 (1) SA 396
(SCA) (
Paola
).
For present purposes, I choose to eschew an indication of whether or
not I support this Court’s reliance on
Paola
in its interpretation of section 7(1)(b)(ii).  I do not find it
necessary to make a pronouncement either way on the matter.

Support similar to that found by the Supreme Court of Appeal in
Paola
is to be found in section 10 of the Building Standards Act.
See the discussion in this regard in [91]-[93].
[87]
True
Motives
above n 36 at paras 20-1.
[88]
The
rule of law is a founding value of the Constitution.  Section 1
provides that the Republic of South Africa is founded
on values that
include the supremacy of the Constitution and the rule of law.
This Court’s judgment in
Camps
Bay Ratepayers
confirms that the doctrine of precedent is a component of the rule
of law.  Above n 40 at para 28.
[89]
Camps
Bay Ratepayers
id.
[90]
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)
(
Walters
)
at para 57, quoting Hahlo and Khan
The
South African Legal System and its Background
(Juta and Co Ltd, Cape Town 1968).
[91]
True
Motives
above n 36 at para 100.
[92]
Defined
as the “[r]ationale or basis of deciding” in
Camps
Bay Ratepayers
above n 40 at para 30.
[93]
See
Jafta
v Minister of Law and Order and Others
[1991]
ZASCA 1
;
1991 (2) SA 286
(A) (
Jafta
)
at 292-3 and
R
v Crause
1959 (1) SA 272
(A) at 281C-D.
[94]
Camps
Bay Ratepayers
above n 40 at para 30.
[95]
Durban
City Council v Kempton Park (Pty) Ltd
1956
(1) SA 54
(N) (
Kempton
Park
)
at 59D-F and
Rood
v Wallach
1904 TS 187
(
Rood
)
at 195-6
.
[96]
What
is said
obiter
and
obiter
dicta
in a judgment are dealt with more fully in [61]-[71].
[97]
See
Kempton
Park
above
n 95 at 59D-F;
Smith
and Another v Mathey and Another
1926 OPD 31
at 36-7; and
Rood
above
n 95 at 195-6.  In
Kempton
Park
it was stated by Broome JP at 59D-F that:
“
I
am prepared to regard the passage as having no
status
other than that of an expression of opinion by one Judge of Appeal
concurred in by four others.  Even so, its persuasive
value
would be irresistible.  I am not prepared to dissent from it.”
(Emphasis in original.)
[98]
Pretoria
City Council v Levinson
1949
(3) SA 305
(A) at 317 (
Levinson
).
See also
Jafta
above n 93 at 292-3;
R
v Kaukakani
1947
(2) SA 807
(A) at 813; and
Petersen
v Jajbhay
1940
TPD 182
at 190.
[99]
Camps
Bay Ratepayers
above n 40 at para 28.
[100]
In
full the Latin maxim says
stare
decisis et non quieta movere
,
meaning “one stands by decisions and does not disturb settled
points”.
Walters
above n 90 at para 57.  See also
Media
24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd
[2011] ZASCA 117
;
2011 (5) SA 329
(SCA) (
Media
24
)
at paras 33-4.
[101]
Camps
Bay Ratepayers
above n 40 at para 28 and
Walters
above n 90 at paras 60-1.
[102]
Camps
Bay Ratepayers
id at para 30 and
Walters
id at para 61.
[103]
Walters
id at paras 60-1.
[104]
Section
167(3)(a) of the Constitution introduced by the Constitution
Seventeenth Amendment Act of 2012 which came into effect
on 23
August 2013.  The section reads:
“
The
Constitutional Court—
(a)
is the highest court of the Republic; and
(b)
may decide—
(i)
constitutional matters; and
(ii)
any other matter, if the Constitutional Court grants leave to appeal
on the grounds that the matter raises an arguable point
of law of
general public importance which ought to be considered by that
Court; and
(c)
makes the final decision whether a matter is within its
jurisdiction.”
Before
the amendment, the section read:
“
The
Constitutional Court—
(a)
is the highest court in all constitutional matters;
(b)
may decide only constitutional matters, and issues connected with
decisions on constitutional matters; and
(c)
makes the final decision whether a matter is a constitutional matter
or whether an issue is connected with a decision on a
constitutional
matter.”
[105]
In
paragraph 16 of its written submission, the eThekwini Municipality
submits:
(a)
If a municipality must be satisfied that none of the “undesirable
outcomes” will be triggered by the proposed
building that will
result in a significant increase in the number of refusals.
Moreover, this is not the test envisaged
in section 7(1)(b), which
is whether the municipality is satisfied that the undesirable
outcome will probably or in fact arise.
(b)
In the context of section 7 the word “satisfied” means
just that, not “reasonably satisfied”.
The
municipality must make the enquiry, at the end of which it is either
satisfied or not.  That this is what the legislature

contemplated is borne out by the way in which it changed the test
when dealing with the more esoteric concepts of disfigurement,

unsightliness or objectionableness of buildings, and derogation from
their value.
(c)
A high level of certainty or confidence is required in order to be
“satisfied” both with respect to the material
canvassed
in subsection (1)(a) and that canvassed in subsection (1)(b).
(d)
It would be extremely difficult in many cases for a municipality to
be “satisfied” that, for instance, the erection
of a
building
would not
derogate from the value of neighbouring
properties (or even that this would probably not occur).
(e)
If an approval can be set aside by a court merely on the ground that
as a matter of fact the proposed building will devalue
neighbouring
properties, then the decision on the “merits” of the
plans is ultimately that of the court, and not
of the municipality.
This creates a situation where appeal (as opposed to review) is
available as a remedy for someone
who objects to the approval of
building plans.  It would embroil municipalities in numerous
and expensive lawsuits involving,
presumably, expert evidence on the
merits of its decisions on the esoteric factors of section
7(1)(b)(ii).  The price to
be paid, insofar as the efficient
performance of a municipality’s duties is concerned, will be
particularly high.
[106]
Camps
Bay Ratepayers
above n 40 at para 30.  See also Hahlo and Kahn
The
South African Legal System and its Background
6
ed
(Juta & Co Ltd, Cape Town 1991) at 260 and
De
Kock NO and Others v Van Rooyen
[2004] ZASCA 136
;
2006 (6) BCLR 714
(SCA) at para 17.
[107]
Above
n 98 at 317.
[108]
Id.
This was referred to with approval in
MEC
for Education, Gauteng Province, and Other v Governing Body, Rivonia
Primary School and Others
[2013]
ZACC 34
;
2013 (6) SA 582
(CC);
2013 (12) BCLR 1365
(CC) at para 112.
[109]
At
this stage of its reasoning the
Walele
majority had not pronounced on whether this information constitutes
a recommendation for purposes of section 6.
[110]
“
Multiple”
is used to mean upwards of one.
[111]
See
Kempton
Park
above n 95 at 59D-E where Broome JP stated:
“
The
proposition which Mr Milne regards as
obiter
thus represents the learned Judge of Appeal's reason for his
decision of an issue raised on the appeal.  It may be, as Mr

Milne says, that the decision of the appeal itself would have been
the same even if that particular issue had been decided differently,

but I doubt whether that fact (if it is a fact) would entitle us to
regard the relevant portion of the judgment as
obiter
.”
See
also Hahlo and Kahn above n 106 at 267-8:
“
For
all the attempts at definition, however, the conclusion is
unavoidable that it ‘is impossible to draw a rigid line,
a
priori
, between
rationes
decidendi
and
obiter
dicta
’.  Say A claims
relief on alleged legal rules X and Y, and the court holds that
there is no rule X but that there
is a rule Y.  Now the
decision was founded on the upholding of rule Y.”
(Footnote omitted.)
The
authors then conclude with what to me appears to be a rhetorical
question: “But should not the finding that there is
no rule X
also be held to be part of the
ratio decidendi
?”
[112]
Camps
Bay Ratepayers
above n 40 at para 30.
[113]
Id.
[114]
Again,
“information” is used in a generic sense, and not in the
sense of information sufficient to constitute a recommendation
as
envisaged in section 6 of the Building Standards Act.
[115]
Walele
above n 28 at para 60.
[116]
On
the lack of a recommendation see [42]-[45].
[117]
At
para 46.
[118]
Camps
Bay Ratepayers
above n 40 at para 28.
[119]
Media
24
above
n 100 at para 34.
[120]
The
possible exposure to danger to life and limb is a threat to the
right to life and the right to security of the person (sections
11
and 12 of the Constitution respectively).  The other possible
negative effects implicate the right to property (section
25 of the
Constitution).
[121]
Walele
above
n 28 at para 52.  I must add that it will be clear later that
this does not relegate the rights of the owner of the
property
sought to be developed.
[122]
True
Motives
above
n 36 at paras 31 and 120-1.
[123]
Id
at paras 20-36.
[124]
Camps
Bay Ratepayers
above n 40 at paras 38-9.
[125]
This
notion comes from the judgment of Scott JA in
True
Motives
above n 36 at para 120.
[126]
Camps
Bay Ratepayers
above n 40 at para 40.
[127]
Section
7(1)(b)(ii)(aaa).
[128]
Section
7(1)(b)(ii)(bbb).
[129]
Section
7(1)(b)(ii)(bb).
[130]
In
terms of section 1 of the Building Standards Act, these are
regulations made under section 17(1), and not those made under

section 20.
[131]
True
Motives
above
n 36 at para 31.
[132]
Id.
[133]
The
Building Standards Act does not insist on any specific
qualifications in the case of a decision-maker.
[134]
Above
n 28 at para 70.
[135]
This
suggestion comes from
True
Motives
above n 36 at para 120.
[136]
See
the reference to “probably” in section 7(1)(b)(ii).
[137]
Above
n 40 at paras 30-40.
[138]
That
is, the
Walele
majority ignores the plain wording of section 7(1)(b)(ii).
[139]
Department
of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC)
(
Goedgelegen
)
at para 53.
[140]
See
[73] setting out the long title of the Building Standards Act.
[141]
In
[74] in particular n 120, I indicated that rights that may be
implicated are the right to life, the right to security of the

person and the right to property.
[142]
See
[78]-[79].
[143]
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 92.
In
S
v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at paras
9, 15 and 45-6, this Court stressed the importance of a contextual –
as opposed to a literal – interpretation
of the Constitution.
The views it expressed are equally true when it comes to the
need to interpret Acts of Parliament
with due regard to context.
[144]
At
[5].
[145]
See
[93] on the corresponding factors.  As noted in
SATAWU
and Another v Garvas and Others
[2012] ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8) BCLR 840
(CC) at para
3, our jurisprudence discourages statutory interpretation that gives
rise to absurdity:
“
This
Court has previously held that an interpretation of a statutory
provision that gives rise to an absurdity or irrationality
should be
avoided where there is another reasonable construction which may be
given to that provision.”
[146]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at
para 24.
[147]
The
construction of a building that obstructs the views enjoyed from
existing properties does not necessarily derogate from the
market
value of the existing properties.  See
Camps
Bay Ratepayers
above n 40 at paras 38-40 quoted at [48].  See also
True
Motives
above n 36 at para 30.
[148]
Above
n 40.
[149]
Affordable
Medicines Trust and Others v Minister of Health and Another
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para
138.
[150]
At
[46].
[151]
There
is no reference in the majority judgment in
Walele
to any
positive
satisfaction of the requirements in section 7(1)(b)(ii) of the
Building Standards Act.  The dispute about
positive
or
negative
satisfaction first arose in
True
Motives
above n 36.  For example, see paras 21 (majority judgment), 64,
69, 70 (minority judgment), 93 and 94 (concurring majority

judgment).
[152]
The
main judgment, at [47]-[48], is correct that
Camps
Bay Ratepayers
did
not directly decide the issue before it in terms of the application
of section 7(1)(b)(ii), but nevertheless acknowledges
that its
explanation of “derogation of value” at [78] and [84]
clarifies
Walele
.
In the main judgment’s substantive findings on the reach of
Walele
I find little difference with the views expressed in this judgment.
[153]
Camps
Bay Ratepayers
above
n 40 at para 47.
[154]
As
was done in another context in
Kubyana
v Standard Bank of South Africa Ltd
[2014] ZACC 1; 2014 (3) SA 56 (CC); 2014 (4) BCLR 400 (CC).
[155]
Walele
above n 28 at para 55 fn 68.
[156]
Id
at para 55.
[157]
Id
at para 56.
[158]
Camps
Bay Ratepayers
above n 40 at paras 38-40.
[159]
Section
7(1)(b)(ii) of the Building Standards
Act
provides:
“
If
a local authority, having considered a recommendation referred to in
section 6(1)(a)—
. .
.
(b)
. . .
(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 written reasons for such refusal.”
[160]
Camps
Bay Ratepayers
above n 40 at para 33.
[161]
Walele
above
n 28 at para 55: “[T]he decision-maker must at least be
satisfied that none of the invalidating factors exists before
he or
she grants approval.”
[162]
See
also [83].  As noted in
Camps
Bay Ratepayers
above n 40 at para 33,
Walele
imposes an obligation on the local authority to ensure the absence
of the disqualifying factors.
Walele
says nothing more than this.  The other implications ascribed
to it in that paragraph need to be qualified to that extent.
[163]
Camps
Bay Ratepayers
id at para 28.
[164]
At [107].
[165]
Walele
above n 28 at para 55.
[166]
In
contrast to the meanings ascribed to it by the majority and minority
judgments in
True
Motives
.