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[2013] ZAWCHC 166
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Capendale and Another v Municipality of Saldanha Bay and Others, Capendale v 12 Main St, Langebaan (Pty) Ltd and Others (6580/2012, 840/2012) [2013] ZAWCHC 166; [2014] 1 All SA 33 (WCC) (30 October 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
Case no: 6580/2012
(and Case no: 840/2012)
In the matter between:
ARTHUR EDWIN CAPENDALE
..........................................................................
First
Applicant
THE FIONA TRUST
........................................................................................
Second
Applicant
and
MUNICIPALITY OF SALDANHA BAY
...........................................................
First
Respondent
12 MAIN STREET, LANGEBAAN (PTY) LTD
...........................................
Second
Respondent
ABSA BANK LIMITED
..................................................................................
Third
Respondent
and
Case no: 840/2012
In the application of:
ARTHUR EDWIN CAPENDALE
..........................................................................
First
Applicant
MEL RICHTER
...............................................................................................
Second
Applicant
and
12 MAIN ST, LANGEBAAN (PTY) LTD
.........................................................
First
Respondent
MUNICIPALITY OF SALDANHA BAY
......................................................
Second
Respondent
ABSA BANK LIMITED
..................................................................................
Third
Respondent
_______________________________________________________
JUDGMENT :30 OCTOBER 2013
____________________________________________________________________
GAMBLE, J:
INTRODUCTION
This review application involves a dispute between neighbours about
that most sought after of features of a seaside property
– a
view of the water. The Second Respondent,12 Main Street, Langebaan
(Pty) Ltd, is a company effectively controlled by
Mr.Andries van der
Merwe, a builder from Malmesbury. For more than fifteen years, first
a family trust and later the Second Respondent
have owned Erf 4295
Langebaan on which is situated a double storey brick house. The
front of the house, which is located on the
eastern shore of the
Langebaan lagoon (undoubtedly one of the most picturesque places on
the Cape West Coast) has unimpeded views
of that vast expanse of
water. The rear of the house abuts onto Main Street, Langebaan. For
the sake of convenience I shall refer
to the trust and the Second
Respondent herein as “
van der Merwe
” given his
decisive involvement over the years in both.
The First Applicant (“Capendale”) owns Erf 836
Langebaan, the street address whereof is No. 10 Main Street,
Langebaan.
As the properties’ street numbers suggest,
Capendale’s single storey holiday house is situated across the
road from,
and behind,van der Merwe’s property.
The Second Applicant is the Fiona Trust,an entity effectively
controlled by Mr. Mel Richter, which for the sake of convenience
I
shall refer to as “
Richter
”. Richter owns Erf
4296 Langebaan whose street address is No. 9 Main Street, Langebaan.
Richter’s property is adjacent
to Van der Merwe’s
property and to the south of it, and it too has been improved with
the erection of a double storey holiday
home which enjoys similarly
spectacular views of the Lagoon to van der Merwe.
The First Respondent is the Municipality of Saldanha Bay, the local
authority responsible for the municipal administration of
the
Langebaan area. It has adopted a neutral attitude in the current
dispute, but has filed certain memoranda to explain its
position.
The Third Respondent is Absa Bank Limited which has been formally
cited because it holds a mortgage bond registered over van
der
Merwe’s property. No relief is sought against Absa which has
kept well clear of the fray.
The overall purpose of the litigation commenced by Capendale and
Richter against van der Merwe during January 2012 is to precluded
him from effectively erecting a third storey on his house. The
application is based on certain alleged statutory contraventions
by
van der Merwe and is motivated by the fact that their respective
views of the Lagoon will be impeded by such unlawful activity.
As is invariably the case in neighbourly disputes, the matter has a
long and fairly complicated history but the nub of the case
really
turns on a single issue: what the so-called “
natural ground
level
” of van der Merwe’s property is, since that
level ultimately determines the maximum height to which van der
Merwe
is permitted to build on his property. But first, I turn to
the history of the matter.
HISTORY OF DEVELOPMENT ON THE SUBJECT PROPERTY
At the beginning of 1998van der Merwe acquired (then through a
trust) what the parties have referred to as “
the subject
property
” on which there was an existing dwelling. I shall
assume a similar reference. During 1998 van der Merwe submitted
plans
to the Municipality for building permission to extend the
subject property by the addition of garages and other ground level
extensions. These plans were approved in October of that year.
A year later, on 15 October 1999, van der Merwe submitted plans for
a further extension to the property, this time to build what
was
dubbed “
a storage area
” on top of the house’s
existing flat roof. Just why one would wish to build a storage area
at that level with the
difficulties of access that this would
present when there were garage areas and the like at ground level,
was never fully explained
in the papers, but I leave the point there
for the meantime.
There were objections from 2neighbours,a Ms Watson and a
Mr.Laubscher, concerning the height of the proposed extension, and
pursuant thereto the Municipality rejected the October 1999 plans on
30 November 1999.
Van der Merwe was undeterred and somehowit transpired that on 30 May
2000 the Municipality’s Council met to consider the
plans
further. At that meeting the Council confirmed its earlier decision
to refuse the plans. It was, however, concerned about
the fact that
van der Merwe had commenced building works on the subject property
and accordingly referred the matter to its attorneys
for advice on
that issue. A short, three sentence opinion was furnished.
On 23 August 2000, and relying on the aforesaid opinion from the
attorneys, the Municipality approved van der Merwe’s plans
and
the storeroom was then built. Sometime thereafter Van der Merwe
began using the storeroom as a “
sunroom
”
(whatever that description may mean).
In February 2005 Capendale purchased the vacant Erf 836 on which his
house was later built. He was sufficiently concerned at
the time
about building lines and height restrictions that he made enquiries
from the Municipality whether there was the possibility
of the
subject property being further developed in such a way that the view
of the lagoon from his property might be obstructed.
On the strength
of certain positive assurances given to him by the Municipality,
Capendale decided to purchase the property.
In May 2010 van der Merwe submitted a new set of plans to the
Municipality this time for the construction of a lift to the storage
room, which was then described as “
a lounge with a
balcony
”. He required special consent in the form of a
departure application under sec 15 of the Land Use Planning
Ordinance of
1984 (“LUPO”) because of the
projectedheight of the new structure.
However, van der Merwe did not appear to wish to wait for the
processing of a departure application and submitted a further set
of
plans in June 2010. These plans were approved on 21 June 2010 by the
Municipality’s building control officer, notwithstanding
a
number of irregularities in relation thereto. Capendale was alerted
to building activities on the roof of van der Merwe’s
house
some three weeks later and he launched an urgent application in this
Court under case no. 17029/2010, pursuant wheretovan
der Merwe was
temporarily interdicted from proceeding with building operations.
Van der Merwe strenuously opposed the interim
relief and filed a
lengthy answering affidavit. However, he later withdrew his
opposition and on the extended return day of the
interdict (28
October 2010) the plans of June 2010 were set aside by agreement
between Capendaleand van der Merwe. Thereafter,
van der Merwe, of
his own volition, demolished the storage room built in terms of the
2000 plans.
Still van der Merwe had not given up the idea of effectively putting
up a third storey on the subject property andon 4 November
2010 he
yet again submitted a set of plans to the Municipality. Because of
height restrictions based on the alleged natural ground
level of the
subject property, the Municipality commissioned a professional study
to establish same. Capendale, aware of the
fact that new plans had
been put in, also participated in this exercise by putting in
affidavits from people with knowledge of
the history of the subject
property in an attempt to show that van der Merwe’s
allegations regarding the true state of
affairs in respect of the
natural ground level were wrong.
The investigation was a protracted exercise. While it was on-going,
van der Merwe wrote to the Municipality in May 2011 and,
on the
strength of a report from a land surveyor commissioned by him,
informed it that he would not be applying for a departure
in respect
of the November 2010 plans. He asked for those plans to be approved
and in so doing relied on an earlier heightdetermination
allegedly
made by the Municipality in respect of the August 2000 plans which
it had approved. Effectively, van der Merwe wanted
to “
piggy-back
”
the new plans on the old ones.
The Municipality did not give in to van der Merwe’s pressure,
and continued with its investigation. On 15 September 2011
it
convened a meeting at the Municipal Offices, attended by,
inter
alia
, Capendale, Richter, van der Merwe and various
representatives of the parties. At that meeting, the Municipality
gave an undertaking
to those present that all plans submitted to it
in respect of the subject property would be shown to Capendale and
Richter before
such plans were authorised. In addition, the
Municipality undertook to provide them with an opportunity to launch
an application
to review the plans of 2000 which Capendale and
Richter alleged exceeded the relevant height restrictions.
On 9 November 2011 the Municipality informed van der Merwe that the
plans for the “
sunroom
” had not been approved due
to the fact that they did not accord with the surface area (the
so-called “
footprint
”) approved in the 2000
plans, and further, because the height measurements on the plans
exceeded the height restrictions
relevant to the subject property.
On 28 November 2011 the Municipality told van der Merwe again that
the plans had not been approved and said that once the plans
had
been rectified it would take another fourteen days for approval.
On 7 December 2011 a further set of plans was submitted by van der
Merwe. These were allegedly passed with undue haste on 21
December
2011 at a time when most municipal officials were on leave and were
passed withoutCapendale and Richter having been
informed of either
the lodging of the application for approval, or of the approval
itself.
Upon telephonic enquiry by Capendale’s attorney on 12 January
2012, the Municipality’s legal department wrongly advised
that
no further plans had been submitted for further work on the roof
structure on the subject property. However, on 16 January
2012
Capendale noticed construction workers busy on the roof of the
subject property. An urgent meeting was convened with municipal
officials. At this meeting the Municipality’s Head of Legal
Affairs apologised that the promised undertaking by the Municipality
had not been honoured and claimed that he was not aware that the
plans had been approved in December 2011.
On 20 January 2012 Capendale and Richter approached this Court as a
matter of urgency under case no. 840/2012 and Davis J granted
an
interim interdict precluding further construction work on the
subject property, pending the final determination of a review
to set
aside the decision of the Municipality to approve van der Merwe’s
plans on 21 December 2011.
This review application was launched on 2 April 2012 and after an
order on 2 May 2012 by Fourie J that it should be consolidated
with
the interdict application, the matter was set down for hearing on 4
September 2012 with a timetable fixed for the exchange
of further
affidavits.
On 8 August 2012 the Judge President granted an agreed order that
the matter be removed from the roll on 4 August 2012 and re-enrolled
for 5 November 2012, with a revised timetable for the filing of
papers.On 26 October 2012 the Judge President granted a similar
order, this time setting the matter down for hearing on 28 January
2013.
At the hearing on that day, the Applicants were represented by
Advocates
L. Buikman
and
M. O’Sullivan
and van
der Merwe by
Adv. J.C. Heunis SC
. The Municipality did not
participate in the proceedings but its attorney kept a watchful eye
over the proceedings and was present
in Court throughout.
The matter did not conclude on 28 January 2013 and prior to it being
called the following day, Counsel for the parties requested
the
Court in chambers to postpone the matter until 8 April 2013 in order
that their clients could attempt to resolve their differences
amicably. This endeavour proved elusive and when the matter
continued
Ms O’Sullivan
appearedalone for the
Applicants.
At the conclusion of argument,
Ms. O’Sullivan
indicated
that she was considering moving an amendment to the Notice of Motion
which she later effected by forwarding a draft
order to the Court
and the other parties. On 15 April 2013 the Municipality gave notice
that it did not oppose the amendment.
On the same day
Ms.
O’Sullivan
filed a supplementary note and on 6 May 2013
Mr.Heunis SC
did likewise. The Court is indebted to Counsel
for their various written submissions and the bundles of authorities
which have
facilitated the preparation of the judgment.
THE RELIEF ULTIMATELY SOUGHT BY THE APPLICANTS
After the most recent amendment, the relief ultimately sought by
Capendale and Richter is as follows:
“
1. The
First Respondent’s decision on 21 December 2011 to approve
building plans submitted by the Second Respondent for alterations
to
the existing dwelling on Erf 4295, Langebaanis reviewed and set
aside.
2. The First Respondent’s decision on 23 August 2000
approving plans submitted by the Second Respondent which
authorisedthe
Second Respondent to erect a structure on the existing
dwelling on erf 4295 Langebaan which exceeded the permissible height
of
the Saldanha Bay zoning scheme regulations is reviewed and set
aside.
3. Directing that the First Respondent is to comply with its
obligations in terms of sec 39(1) of the Land use Planning
Ordinanceand
to enforce compliance by the Respondent with the height
restriction provisions of the Saldanha Bay zoning scheme regulations
in
respect of any structure erected on erf 4295 Langebaan, and not to
consider any document that places reliance on the affidavit of
Mr.
C.D. Redelinghuys dated 23 September 1998 in determining the height
restriction.
4. Ordering the First Respondent [to] pay the costs of this
application and that the Second Respondent to (
sic
) pay the
costs of the opposition thereof.”
The case for van der Merwe in respect of the amended relief is the
following:
34.1 He does not oppose the relief sought in prayer 1.
34.2 He opposes the relief sought in prayers 2 and 3.
34.4 As to costs, Van der Merwe points out that he did not oppose the
interdict application in January 2012 and concedes that the
Applicants are entitled to their costs on the basis of an unopposed
application. Regarding the costs in relation to the relief
conceded
under prayer 1, Van der Merwe says that these should be for the
account of the Municipality on an unopposed basis. Finally
he asks
that the Applicants pay the costs of his opposition to prayers 2 and
3.
As the proposed relief suggests, there are a number of statutory and
other regulatory instruments at play in this application.
These
iniclude:
31.1 The National Building Regulations and Building Standards Act,
103 of 1977 (“the NBRA”);
31.2 The Land Use Planning Ordinance (Cape) 15 of 1985 (“LUPO”);
31.3 The Municipality of Saldanha Bay Zoning Scheme of 1990 (“the
Scheme Regs’);
31.4 The Promotion of Administrative Justice Act 3 of 2000 (“PAJA”);
31.5 The National Building Regulations, variously published between
October 1990 and September 2011 (“The Building Regs’);
THE STATUTORY FRAMEWORK
The point of departure in this case is the NBRA, whose preamble
states that this Act is designed to “
provide for the
promotion of uniformity in the law relating to the erection of
buildings in the areas of jurisdiction of local
authorities
”
and for “
the prescribing of building standards
”.
In terms of sec 4(1) of the NBRA:
“
No
persons shall without the prior approval of the local authority,
erect any building in respect of which plans and specifications
are
to be drawn and submitted in terms of this Act.”
Given the definitions of “
building” and “erection
”
in sec 1 of the NBRA, it is common cause that the various extensions
which van der Merwe effectedon the roof of the subject
property (or
wished to effect thereto) fall within the ambit of sec 1 of the NBRA.
The structure of the NBRA requires such an application to be made in
writing on the prescribed forms and to be accompanied by
the
requisite plans and construction specification documents, etc. (sec
4). The plans are to be considered by the local authority’s
duly appointed building control officer (sec 5), who must then make
a recommendation to the local authority on the acceptability
thereof, or not. (sec 6)
The final approvement of any particular set of building plans lies
with the local authority itself. The NBRA provides as follows:
”
S7(1)
If a local authority, having considered a recommendation [of the
building control officer] referred to in s 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.”
The express reference in s7(1)(a) of the NBRA to “
any other
applicable law
” brings various of the Acts, Ordinance, and
Regulations referred to above into consideration when the approval
of any particular
set of building plans is considered.
Accordingly, the Municipality is bound to have regard, for example,
to the provisions of the Scheme Regs when considering whether
to
approve such a set of plans. In terms thereof the primary
consideration would be whether the building contemplated in the
plans complies with the requirements of the type of zone in which it
is to be erected. In respect of the subject property, it
falls into
the zone known as “
Residential Zone 1
”.
HEIGHT RESTRICTIONS
All properties within Residential Zone 1 in Langebaan are now
limited to a height restriction of 4 metres. In terms of the Amended
Scheme Regulations effected in March 2000 the following definitions
were added:
“
Height
”
means in relation to a building or a portion thereof: the vertical
distance of the highest point of such building or portion
above the
position where the building line intersects the highest point of the
natural ground level as certified by a professional
land surveyor by
means of a land surveying certificate, provided that: -
(i) where the roof of such building or portion is a sloping one,
the distance be measured to the ridge of the roof;
(ii) where a parapet or gable extends above the roof level, the
distance be measured to the highest point of the parapet or gable;
and
(iii) lift motor rooms, bulkheads over stairs, water tanks,
chimneys, turrets, open railings and other like features above the
general
roof level may be disregarded.”
Thefurther definitions in the amended s1 of the Scheme Regs which
are relevant to this case are:
39.1 “
Highest point of natural ground level
”
means “
the highest point of ground as certified by a
professional land surveyor within the building lines of the erf, by
means of a land
surveying certificate”
; and
39.2 “
Land surveying certificate
means a
certificate issued by a professional land surveyor.”
I should mention too that the Scheme Regs were amended on 17 March
2000 to expressly introduce these height limitations in Langebaan.
Under the previous Scheme Regs the height of building in Langebaan
was determined in accordance with the number of storeys permissible
in a particular zone. This definition apparently created problems
and the calculation of height above natural ground level was
introduced as the preferred mode of measurement.
It is trite that any building that does not
comply with the height restrictions imposed by the Scheme Regs is
unlawful unless
the owner has been granted a departure in terms of
s15 of LUPO
1
.
Such a departure will ordinarily only be considered by the relevant
MEC after a transparent,public participation process which
has been
duly advertised. As I have already said, van der Merwe has
persistently refused to lodge such an application.
The crux of the dispute in this case turns on how the height
restriction of 4 metres in respect of the subject property is to
be
calculated. In resolving that dispute the Court must consider what
the highest point of the natural ground level of the property
is,
and in doing so, must be alive to the fact that this may have been
manipulated, either by the present owner, or over time.
Somewhat
ironically, although large parts of Langebaan are situated at sea
level, or a few metres or so above, land surveyors
have, for the
sake of convenience, evidently made use of a so-called “
local
height
” of 50,0m in Langebaan for purposes of determining
the height of structures.Such height is said not to be related to
“
mean sea level
”, but is a predetermined height
(“
willekeurigehoogtestelsel
”).
THE REDELINGHUYS AFFIDAVIT
When van der Merwe submitted the first set of plans in 1998 to
effect alterations to the existing structure on the subject
property, he relied on a height certificate issued by a land
surveyor, Mr. S. Pinker, on 25 September 1998. This certificate
declared that Pinker had measured the highest point of the natural
ground level of the subject property as 49,78m and the floor
level
of the existing house as 49,71m. Just why these heights were below
the “
local height
” was never explained but
nothing turns on that.
The certificate was issued under cover of a letter dated 25
September 1998 in which Pinker stated that he had relied on an
affidavit dated 23 September 1998 by a former owner of the subject
property, a retired magistrate, Mr. C.D. Redelinghuys. Judging
by
his date of birth given in the affidavit, Redelinghuys would have
been at least 82 years old when he attested to it, the material
part
whereof is the following:
“
1. Ek
was virverskeiejareonderandere ‘n Landdros en
sedertdiensakeman, direkteur en besturendedirekteur van
verskeiesakeondernemings
en boerderybedrywighede.
2. Datek die eienaar was van erf 153 Langebaan. Die erf was
onbebou toe ekditaangekoop het. Ek het gedurende 1960 ‘n
woonhuisdaaropgebou.Daar
was ‘n duin op genoemdeerfwat ten
minste 1.50 meter hoër was as die vloervlak van die
woonhuiswatekgebou het. Hierdieduin
is platgewerkom ‘n
gelyktetekrywaarop die huisgebou is.
Ekglodatbogenoemdeu ‘n ideesal gee van die
oorspronklikegrondhoogte van die perseel.”
In his letter of 25 September 1998 Pinker claimed that he had added
an additional 1.5m (as per the Redelinghuys affidavit) to
the floor
level which he had determined as 49,71m, and arrived at a value of
51,21m for “
die hoogste punt op of binne die boulyne”
.
The consequence of this determination meant that Van der Merwe could
erect a structure on the subject property up to a maximum
height of
55,21m.
The Municipality did not accept the accuracy of the Redelinghuys
affidavit – in fact it disbelieved it – and on 30
November 1999 it rejected the plans and directed that van der Merwe
lodge a departure application on the following basis:
“
Dat
die aansoeker, A.J. van der Merwe…aansoekdoenom ‘n
afwyking van die hoogtebeperking, ResidensiëleSone 1 t.o.v.
die
nuwevoorgesteldeuitbreidingasook die bouwerk reeds
goedgekeuraangesiendaar min twyfelbestaandatMnr. C.D. Redelinghuys,
die
vorigeeienaar van die perseel, ‘n valseverklaringgemaak het
watbetref die natuurlikegrondhoogte van die eiendom en die geboue
reeds voltooialdusnie die hoogtebeperkinghandhaaf (
sic
).”
As stated earlier, at this time a neighbour, Ms Watson, had objected
to the building work and further had disputedRedelinghuys’
allegations regarding the former existence of a 1,5m dune on the
subject property. She had gone so far as to furnish the Municipality
with a set of photographs which allegedly suggested the
contrary.Mr.Laubscher, an architect by profession and also a
neighbour
had also objected and supported Watson’s view.
Once the amendment to the Scheme Regshad been promulgated in March
2000 the matter served before the Council again on 30 May
2000 when
the following was recorded in relation to its decision of 30
November 1999:
48.1 Van der Merwe had verbally indicated to the Municipality that he
refused to apply for any height departure on the subject
property;
48.2 The new Scheme Regs had the effect that the building on the
subject property had to conform to a 4m height restriction as
calculated from the natural ground level;
48.3 Van der Merwe had commenced building work in accordance with an
earlier approved plan in which the natural ground level had
been
adjusted by a land surveyor to accommodate the envisaged height of
the new building;
48.4 In light of the evidence in the form of the photographs
submitted earlier by Watson there was reason to doubt the accuracyof
the Redelinghuys affidavit, which was rejected by the Council as
false;
48.5 Rejection of the Redelinghuys affidavit meant that the earlier
plans which were approved on the strength thereof were based
on an
incorrect height determination.
The Council went on to make the following recommendations:
49.1 Van der Merwe be requested to apply afresh for a departure from
the permissible height restriction within 30 days;
49.2 That in the event that van der Merwe failed to take such steps
timeously, the Municipality’s attorneys were to be approached
to furnish a legal opinion regarding further steps to be taken
against van der Merwe.
As already stated, van der Merwe refused to apply for a departure
and the attorneys furnished the Municipality with a document
headed
“
Opinie
” on 10 August 2000. The full document
reads as follows:
“
Opinie
Hoogtebeperking op erf 4295, Langebaan
1. Die natuurlikehoogste punt is bepaalvolgens ‘n verklaring
van C.D. Redelinghuys en moet die hoogste punt van die woningbinne
4m
van die punt weessoosbepaal.
2. Die fotosgetoon se doel is virskryweronduidelik. Mnr.
Redelinghuys het sekerefeiteondereedbevestig en is die
hoogstenatuurlike
punt aldusbepaal.
3. Daar word aanbeveeldatdaarmeevolstaan word.
Getekente
Vredenburg
op hierdie
10de
dag van
Augustus
2000
…
(Geteken) I. Potgieter
Swemmer and Levin….”
It is euphemistic to call such a document a legal opinion. Not only
does the writer confess to not understanding the purpose
for the
referral of the matter to him (”
fotos…se doel
is…onduidelik
”) and therefore not having all of the
relevant facts before him, his recommendation has no reasoned basis
as one would
expect in an opinion in the form usually prepared by a
lawyer.
Importantly, it is to be borne in mind that the Council did not ask
the attorneys for an opinion in regard to the accuracy or
not of the
height determination in accordance with the Redelinghuys affidavit.
It is clear from the minutes of the Council meetings
of 29 November
1999 and 30 May 2000 that the Council was more than satisfied that
the Redelinghuys affidavit was false and that
the height
determination was wrong. What it wanted from its attorneys was
advice as to what further steps could/should be taken
against Van
der Merwe in the light of these findings.
Be that as it may, the matter came before the Council again on 23
August 2000 and, somewhat surprisingly, it slavishly followed
the
“
opinion
” of the attorneys and then purported to
approve the plans submitted in November 1999, allegedly having
satisfied itself
that they complied with all relevant legislation –
and sovan der Merwe eventually got his store room
cum
sun room
in 2000.
THE ISSUES CURRENTLY IN DISPUTE
When all is said and done, the relief sought by the Applicants which
is ultimately in dispute is fairly limited. Van der Merwe
and the
Municipality do not oppose the relief sought in prayer 1 of the
draft order. Accordingly, the plans for the extensions
to the
subject property passed so hastily by the Municipality on 21
December 2011 may be set aside.
The relief sought in prayer 3 of the draft order is opposed only by
van der Merwe. That prayer envisages a
mandamus
coupled with
an order in terms of s8 of PAJA. While the parties affected thereby
to not challenge the Court’s power to
issue such an order, van
der Merwe does take issue with the Applicants’ attack on the
accuracy of the Redelinghuys affidavit
and the facts underpinning
it. To this end extensive evidence was presented by both lay and
expert witnesses in support of the
allegation that there was indeed
once a dune on the subject property, or that there was likely to
have been such a dune.
The Applicantshave contested these allegations
and opinions and have put up their own version of events. To the
extent that there
are factual disputes on the papers,
Mr.Heunis
SC
correctly submitted that on the
application of
Placon-Evans
2
such disputes as were required to be resolved had
to be determined on the version put up by van der Merwe given that
the Applicants
had not sought a referral to oral evidence. Counsel
for the Applicants submitted that while prayers 2 and 3 envisaged a
measure
of inter-dependency, they could stand alone and it was
notionally possible that the Applicants could fail on prayer 2 but
succeed
on prayer 3, or vice versa.
Van der Merwe submits that the natural ground level of the subject
property was determined once and for all in August 2000 at
51,21m on
the strength of the Redelinghuys affidavit and that he can therefore
build up to 55,21m. The Applicants argue to the
contrary on a number
of bases. Firstly, they contend that the height determination at
that time was in relation to a specific
set of plans placed before
the Municipality, which plans encompassed an application for a
particular type of building approval
under s7(1)(a) of the NBRA. As
part of that process of approval of those plans, the natural ground
level of the subject property
had to be established in order to
determine whether the height of the proposed structure complied with
the 4m restriction imposed
by the Scheme Regs. The Applicants say
that the approval of the plans in August 2000 did not determine the
natural ground level
once and for all, and that this Court can
consider a different height.
Secondly, the Applicants have adduced evidence by a number of
experts in an endeavour to conclusively demonstrate that there
was
no dune on the subject property earlier as contended for by
Redelinghuys and, further, that if there was such a dune it was
not
permanent, nor could its height be reliably measured. The purpose of
this evidence is to show that Pinker’s height
certificate is
palpably inaccurate and unreliable.
Van der Merwe contends in the alternative to the “
once and
for all
” argument that the expert evidence put up in his
papers establishes conclusively that there was a dune on the subject
property
as contended for by Redelinghuys. Moreover, it is said that
the Pinker certificate complied materially with all the requirements
of the relevant legislation at the time and that as a certificate
issued by a land surveyor of his standing it is not open to
the
Court now to go behind it (even if it is shown now to be
demonstrably wrong), the argument being that this is an application
for review and not an appeal.
In addition to these arguments put up in relation to the merits, van
der Merwe takes a procedural point that there has been an
inordinate
delay in the lodging of the application for review and that for that
reason alone the relief sought in prayer 2 should
be refused.
DELAY AND THE APPLICATION OF PAJA
The present application involves issues of
administrative action
3
and
any such action which occurred after 30 November 2000 (the date of
commencement of PAJA) therefore falls to be adjudicated
otherwise in
terms of PAJA. It was common cause between the parties that because
the decision to pass the plans in August 2000
pre-dated the
commencement of PAJA, the time periods prescribed by that Act
4
did not apply to this matter and that that issue
fell to be determined under the common law. Accordingly, the
application for
review was required –
“
to be
instituted within a reasonable time and .. if..not, the Court has a
discretion as to whether or not to hear the matter”
5
In
Oudekraal 2
6
Navsa
JA explained the approach to be adopted in cases where there had
been a significant delay in the institution of an application
for
review:
“
[33]
The “delay rule” in relation to administrative review was
the sole basis advanced on behalf of OudekraalEstates
to contest the
application by the three respondents. In reviewing and considering
whether to set aside an administrative decision,
courts are imbued
with a discretion, in the exercise of which relief may be withheld on
the basis of an undue and unreasonable
delay causing prejudice to
other parties, notwithstanding substantive grounds being present for
the setting aside of the decision.
The application of the delay rule
would in a sense “validate” a nullity. This rule evolved
because, prior to the Promotion
of Administrative Justice Act 3 of
2000 (PAJA), no statutorily prescribed time limits existed within
which review proceedings had
to be brought. The rationale was an
acknowledgment of prejudice to interested parties that might flow
from an unreasonable delay
as well as the public interest in the
finality of administrative decisions, and acts.”
The learned judge endorsed the approach of the
Court
a quo
7
in
relation to delay in that matter which adopted a two-stage approach.
Firstly, the Court
a quo
considered whether there had been an unreasonable
delay in the institution of the application for review. In making
that determination
the Court looked,
inter
alia
, at the conduct of each of the
parties. Having determined that there was indeed an unreasonable
delay, the Court
a quo
proceeded
to the second leg of the enquiry
viz
.
whether it should exercise its discretion to condone the delay.
This two-step approach, Navsa JA pointed out, was
in accordance with the leading cases on delay, such as
Wolgroeiers
and
Setsokosane
8
.
The first step involved “
a value
judgment by the Court in relation to its view of the reasonableness
of the time that had elapsed in the light of all of
the
circumstances”.
9
Navsa
JA stressed that a Court must ensure that it does not equate the
value judgment implicit in the first step with the exercise
of the
discretion which forms the basis of the second step.
The approach which I intend to adopt then in this
matter is a bifurcated one. I will determine the delay point under
the common
law as informed by the Constitution, but for the rest the
application is to be adjudicated upon under PAJA. In so doing I am
guided by the
dictum
of
Wallis J (as he then was) in the
Sokhela
case
10
:
“
[82]
In our pre-constitutional jurisprudence Milne JA built upon the
foundation laid in
Traub’s
case
[1989] ZASCA 90
;
[1989 (4) SA 731
(A))] to draw a distinction between statutory
powers which, when exercised, affect equally members of the community
at large, and
those which, whilst possibly also having a general
impact, are calculated to cause particular prejudice to an individual
or particular
group of individuals [
South
African Roads Board v Johannesburg City Council
1991
(4) SA 1
(A)]. In the latter case a right to be heard would
ordinarily arise. This line of approach also favours the contentions
of the
applicants. Whilst I am not aware of any case decided prior to
1994 and dealing with a situation such as the present, I think that
an application of the law as it had then developed would have
resulted in the applicants being entitled to a hearing before their
appointments as board members could be terminated. Can it be said
that, in giving a constitutional right to just administrative
action,
that would no longer be the case? I am aware of concerns in academic
writings that the effect of the definition of administrative
action
in PAJA has been to narrow the scope for judicial review of exercises
of public power. In my view, however, such a construction
of the
concept of administrative action would be inconsistent with the
constitutional purpose of entrenching a right to just administrative
action. It would also be inconsistent with the principles of
transparency and accountability that underlie our public
administration…The
Constitutional Court has said that the
concept of administrative action in PAJA must be construed in
accordance with the constitutional
guarantee in s33 of the
Constitution, and that the principles of our commonlaw have been
‘subsumed’ under that provision
of the Constitution and
‘inform the content’ of our administrative law
[
Pharmaceutical
Manufacturers’ Association
caseinfra,].Before the Constituion our administrative law tended to
be fragmented and to some degree dependent upon a process of
classification that was increasingly seen to be artificial and
outmoded….In my view, the intention of the Constitution was
to
draw together the disparate threads of our administrative law, and
the circumstances in which the power of judicial review was
available, under the umbrella of a single, broad concept of
administrative action. In accordance with the generous construction
to be afforded constitutionally guaranteed rights,..conduct that
attracted the power of judicial review under our previous
dispensation
will ordinarily be regarded as constituting
administrative action under the present constitutional dispensation.
There will of
course be exceptions arising from the differences in
the structure of government and the status of differing levels of
government,
as highlighted by the
Fedsure
decision [1999(1) SA 374 (CC)], but, in general, it seems to me that,
where the power of judicial review was available under our
previous
dispensation, the courts will be slow to construe that conduct as
falling outside the ambit of administrative action under
the
Constitution and PAJA.” (Footnotes otherwise omitted)
I shall revert to the question of delay once I have considered the
merits of the review under sec 33 of the Constitution and
PAJA and
have had regard to the conduct of the parties and the extent and
import of any illegality that may arise therefrom.
THE LEGALITY OF THE DECISIONS OF THE MUNICIPALITY IN 1999 AND 2000
As set out above the Municipality was first required to assess plans
from Van der Merwe for alterations to the garage on the
subject
property in October 1998. These plans did not involve any height
restriction and were passed without any ado.
Then, in October 1999, the plans for the storage area were
submitted. These plans were contentious in that they brought the
permissible height of the building under the zoning scheme into
consideration. Van der Merwe relied on the certificate of Pinker
for
the determination of the natural ground level. Pinker’s
certificate in turn was based on the Redelinghuys affidavit,
and it
is clear that without the additional 1,5m afforded by the dune
referred to by Redelinghuys, the building would undoubtedly
exceed
the height restriction. In such event the plans could not be
approved unless a departure had been granted.
The Municipality’s relevant department
considered the application which thereafter served before the full
Council on 30
November 1999. The Council refused to approve the
plans on the basis that it did not accept the correctness of the
Redelinghuys
affidavit. This decision would have been reviewable at
the instance of van der Merwe
11
but he elected not to adopt this route, nor did
he consider the option proposed by the Municipality of a departure
application
feasible. Rather, it seems, he doggedly stuck to his
guns and relied on the integrity of the Pinker certificate.
It also appears from the papers that the matter served before the
Municipality’s Building Committee again in April 2000.
This
was after the aforementioned amendment to the Scheme Regulations had
been promulgated. Just how and why the matter served
before these
bodies in light of the unequivocal refusal of the plans by the
Municipality in November 1999 does not appear from
either the
Municipality’s record of proceedings nor from any of the
affidavits. Be that as it may, the subsequent Council
resolution of
30 May 2000 records that the amendment of the Scheme Regulations was
in accordance with what was anticipated and
that the
Municipality’sdecision of November 1999 was correct. It went
on to record in that resolution that it confirmed
its earlier
rejection of the Redelinghuys affidavit and its preference for the
evidence of Watson and Laubscher.
The upshot of the Municipality’s view of
the matter in May 2000 (and the matter was not then before the
Council for reconsideration
on a “
review
and rescind basis
”
)
12
was
that:
71.1 It had taken a decision on the application for plan approval in
November 1999;
71.2 That decision was based on the evidence of Watson and Laubscher
and not Redelinghuys;
71.3 Van der Merwe had commenced further construction work on the
subject property of the second phase of alterations using the
approved plans for phase 1 (October 1998);
71.4 Notwithstanding several directions from the Municipality that a
departure application was required for the phase 2 works,
he refused
to make one; and accordingly
71.5 It required advice from its attorneys as to how to deal with Van
der Merwe’s on-going transgression of the Scheme Regs
and the
NBRA by continuing with the phase 2 building works.
The Municipality has not filed an affidavit in these proceedings but
has furnished a short memorandum from the Municipal Manager
dated 3
May 2012 which accompanies the record of proceedings submitted for
the purposes of this review. To the extent that the
memorandum is
not evidence under oath it carries less weight than the affidavits
submitted by the other parties. In relation
to the decision of 23
August 2000 the Municipal Manager states the following:
“
1.
23
Augustus 2000 goedkeuring:
(i) Die Aansoeker se bouplan was gerugsteundeur‘n
beëdigdeverklaring vanMnr. C.D. Redelinghuysterbevestiging van
die
bestaan van ‘n duin op die erf met ‘n minimum hoogte
van 1.5m.
(ii) Die inhoud van hierdiebeëdigdeverklaring is oorweeg,
maar daar is besluitom die Raad se regsverteenwoordigerstenadervir
‘n
opinie ten einderegsekerheidtebekomoor die aanvaarding, al dannie van
C.D. Redelinghuys se beëdigdeverklaring.
(iii) ‘n Skriftelikeopinie is deurSwemmer en Levin (die Raad
se Regsverteenwoordigers)verskaf wataanbeveel het dat die
Munisipaliteit
die inhoud van C.D. Redelinghuys se beëdigde
verklaringkanaanvaar en daarbykanvolstaan.
(iv) Op 23 Augustus 2000 het die Raadbesluitdat die
bouplangoedgekeur word, aangesiendaar
aanalletoepaslikewetgewingvoldoen is.
(v) Die bouplan is vervolgensdeur die Munisipaliteit goedgekeur.
Die goedgekeurdebouplan is egterverlêen
konsedertdiennognieopgespoor
word nie en maakderhalweniedeeluit van
die rekord van verrigtingenie.”
A number of issues emerge from this memorandum:
73.1 Firstly, the Municipal Manager does not say in para (i) which of
Van der Merwe’s plans are being referred to. It would
seem,
however, as if he is dealing with the 1999 plans.
73.2 Then, the allegation in para (ii) is patently incorrect. As
demonstrated above, as far back as November 1999 the Municipality
unequivocally rejected the Redelinghuys affidavit as false. And, at
its meeting in May 2000 the Municipality confirmed that earlier
decision.
73.3 The minutes of the May meeting record that the basis of the
referral of the matter to the attorneys was for advice on steps
to be
taken against Van der Merwe for his insistence in building without
proper planning approval.
73.4 The minutes do not record that there was uncertainty regarding
the Redelinghuys Affidavit which necessitated legal certainty
or
advice (“
regsekerheid
”).
73.5 The Municipality has not produced any letter of instruction or
memorandum to the attorneys requesting the opinion and, accordingly,
the mandate to the attorneys is not known. However, any instruction
which may have requested advice as to whether the Municipality
could
(or should) accept the Redelinghuys affidavit would have been
irrelevant in light of the fact that that decision had already
been
made in November 1999. Furthermore, such an instruction was not
mandated by the Council if regard be had to the minutes of
its
meeting of 30 May 2000.
In any event, I am of the view that the memorandum has limited
evidential value. Not only is it not incorporated under oath in
any
affidavit, it stands in stark contrast factually to contemporaneous
documents which reflect the Municipality’s erstwhile
thinking
and decisions. As a purported recordal some twelve years after the
event, it is positively misleading. To the extent
that the
Municipality’s stance is that the memorandum reflects the
basis for its decision to approve the plans in August
2000, that
decision was patently irrational.
To the extent, further, that the ultimate
decision as to determination of the natural ground level was left up
to the Municipality’s
attorneys, there are further problems.
Firstly, there is no basis put before the Court for the delegation
of this decision to
an outside agency or body. Secondly, and if a
valid delegation is assumed, it is apparent that such outside agency
acted unprocedurally(and
hence unfairly and in conflict with sec 33
of the Constitution)in at least two important respects. In the first
place the attorney
did not have all of the relevant information or
at least sufficient information for purposes of such decision-making
before him
(“
die fotosgetoon is
virskryweronduidelik”
), and he
did not take reasonable steps to clarify what information may have
been outstanding. In the second place, the attorney
did not properly
apply the
audialteram
principle.
13
He
did not have regard to the evidence of people such as Watson and
Laubscher, but steadfastly relied on the Redelinghuys affidavit
where there was obviously a counter-veiling view.
When the Municipality took the decision to pass
the plans on 23 August 2000 it did so solely on the basis of the
attorneys’
opinion. In doing so it did not purport to review
and rescind its earlier decision of November 1999. Indeed, the
minutes of the
August 2000 meeting show that the Municipality gave
no consideration at all to the fact that it had already taken a
valid and
binding decision in November 1999, and that it was then
functus officio
.As
Professor Hoexter points out
14
:
“
In
very limited circumstances it may be possible to reopen a decision
even
after
it has been announced. An instance given is is where information
relevant to the decision is placed before an administrative body
immediately after it has pronounced its decision, i.e. before it has
adjourned and its members have dispersed. Ordinarily, however,
the
administrator will be
functus
officio
once a final decision has been made and will not be entitled to
revoke the decision in the absence of statutory authority to do
so.”
Rather, the Municipality approached the matter as if it was deciding
on the approval of the plans for the first time. And when
it made
that decision, the Municipality evidently ignored relevant facts
which had been placed before it both in November 1999
and May 2000 by
Watson and Laubscher, or, at the very least did not properly apply
its mind thereto.
Furthermore, I consider that in November 1999 the Municipality had
no choice but to turn down the plans. The provisions of sec
7(1)(a)
of the NBRA only permitted the Municipality to pass the plans if it
was “
satisfied that the application…[complied]…with
the requirements of…[the NBRA]..and any other applicable
law
.” In terms of sec 7(1)(b)(i), if it was “
not
so satisfied
” it was obliged to “
refuse to grant
its approval.. and give written reasons for such refusal
”.
In
True
Motives
15
Heher
JA described the approach to be adopted as follows:
“
The
refusal of approval under the S7(1)(a) is mandatory not only when the
local authority is satisfied that the plans do not comply
with the
Act and any other applicable law, but also when the local authority
remains in doubt. The plans may not be clear enough.
For instance, no
original ground levels may be shown on the drawings submitted for
approval, with the result that the local authority
is uncertain as to
whether a height restriction imposed with respect to original ground
levels is exceeded. In those circumstances
the local authority (a)
would not be satisfied that the plans breach the applicable law, but
equally (b) would not be satisfied
that the plans are in accordance
with the applicable law. The local authority would, therefore, have
to refuse to grant its approval
of the plans. Thus, the test imposed
by s7(1)(a) requires the loal authority to be positively satisfied
that the parameters of
the test laid down are met.”
The refusal of the plans in November 1999 was
entirely consistent with the approach suggested in
True
Motives
and the other cases referred
to. The express wording of the statute not only compelled the
Municipality to refuse to pass the
plans in November 1999 but it did
not give the Municipality any power to reconsider those self-same
plans later, thereby confirming
the
functus
officio
principle. It follows,
therefore, that the subsequent approval of the plans was not only
procedurally irregular but was also not
in accordance with the
principle of legality.It was, to use the language of the leading
case on administrative review in the
pre-PAJA constitutional era
16
,
singularly lacking in rationality and does not pass constitutional
scrutiny.
In all the circumstances, I am of the view that the decision of the
Municipality in August 2000 to approve the plans was an
administrative aberrationwhichdoes not meet the criteria for just
and fair administrative action as contemplated in s33 of the
Constitution. It follows that the decision falls to be set aside
subject to the considerations arising from the delay rule to
which I
shall refer in more detail hereunder.
RELIANCE ON THE REDELINGHUYS AFFIDAVIT
If I am persuaded that the Applicants’ delay is reasonable and
that the August 2000 approval of the plans falls to be set
aside,
there is still the question of the relief sought in prayer 3. In the
first part of the prayer, the relief seeks to instruct
the
Municipality to do what it is obliged to do under the relevant
legislation. It is not clear just why the Applicants require
an
injunction in that regard, but there can clearly be no objection to
such an order, and no such objection was raised by counsel.
The second aspect raised in prayer 3 is, however,
of greater significance. Since this relief was only formulated
shortly before
argument commenced originally in this matter, the
point was not addressed directly in the papers. The Applicants’
concern
is that when van der Merwe eventually submits a set of plans
in place of those approved in December 2011 (and which he accepts
fall to be set aside), he will once again rely on the Redelinghuys
affidavit as justification for the height determination in
respect
of such new plans.
17
The
Applicants ask that this issue be determined finally so that they do
not have to approach this Court again for the umpteenth
time. I
agree that certainty on this issue will be of benefit to all the
parties at this stage and accordingly I will deal with
it.
In argument
Ms. O’Sullivan
pointed out that Pinker drew
up his certificate in 1998 when the height determination of
Residential Zone 1 buildings in Langebaan
was different. To the
extent that a new regime for that determination was put in place by
the Amended Scheme Regs in March 2000,
it is quite possible that the
1998 certificate may no longer be of any application whatsoever.
However, the issue of the lawfulness
of the certificate on this
aspect was not expressly dealt with in the affidavits and does not
in any event affect the standing
of the Redelinghuys affidavit.
The Applicants’ papers were supported by an affidavit by Mr.
Gareth Williams, a duly qualified professional land surveyor
practising in Langebaan. At the time of deposing to his affidavit
(August 2010) Williams had five years’ experience as
such. In
a detailed affidavit of an expert nature, Williams criticized the
methodology employed by Pinker and suggested that
this did not meet
accepted professional land surveying practice at that time. He said
the following:
“
11.
When preparing a height certificate in order to determinethe highest
point of the natural ground level of anerf where the natural
ground
level had been manipulated, a land surveyor must measure sufficient
data in order to be able to determine a postulated highest
point of
the natural ground level. This will include taking various height
measurements on the property itself, various height
measurements on
the adjoining properties, taking into account the natural ground
levels of adjoining properties and any other contour
lines. One will
then use this information and measurements to postulate the natural
ground level of the property in question. This
was not done by Pinker
in respect of the alleged height of the pre-existing dune.
12. The aforesaid method adopted by Pinker does, in my opinion,
not constitute proper land surveying practice with respect [to the]
alleged height of the pre-existing dune. The deponent to the
affidavit does not rely on any land surveying measurements or data
with respect to [the] dune. It is, with respect, impossible for the
deponent to determine with any degree of accuracy with the
naked eye
what the height of the alleged dune was before being worked down;
what the height of the alleged dune was after being
worked down and
what the height of the floor level of the existing building was in
relation to the height of the alleged pre-existing
dune. This could
only have been determined with any precision if detailed proper land
surveying measurements were taken and methods
were followed to
support the allegation contained in the purported affidavit.
13. Furthermore, great uncertainty arises from the purported
affidavit regarding:
13.1 How the deponent could, with any certainty, determine the
height of the dune above the current floor level having regard to
the
following:
13.1.1 The deponent was already 83 years [old] when deposing to
the affidavit;
13.1.2 The dune was worked down 38 years prior to him deposing to
the affidavit; and
13.1.3 After working down the dune to provide a level area upon
which to build the house, how the deponent could determine that the
pre-existing dune was 1,5 meters above the newly constructed floor
level without using proper land surveying methods and equipment
and
techniques.
14. Therefore, based on the documents provided to me, I am of the
opinion that the maximum height restriction plane of the subject
property, at best for First Respondent is 53,78 m (49,78m as per the
1998 certificate plus a further 4 meters).”
The answering papers filed on behalf of van der Merwe include an
affidavit by Mr.Bernardus van Koersveld, a registered surveyor.
In
paragraphs 14 and 15 of this affidavit, van Koersveld answers the
allegations made by Williams in paragraphs 11 and 12 of
his
affidavit as follows:
14. At paragraph 11
14.1. I agree with the deponent that when a land surveyor prepares
a height certificate in order to determine the highest point of
the
natural ground level of an erf where the natural ground level had
been manipulated, a land surveyor must measure sufficient
data in
order to be able to determine a postulated highest point of the
natural ground level.
14.2. I agree that this will normally include the taking of
various height measurements on the property itself as well as taking
into account the natural ground levels of adjoining properties and
any other contour lines. However, I disagree with the deponent’s
affidavit that it would also necessarily include the taking of
various height measurements on adjoining properties.
14.3. In certain instances where there may be evidence that the
adjoining properties is (
sic
) clearly not on the same contour
lines, one may well find it necessary to take height measurements on
those adjoining properties
itself. As this specific erf is on the
beach front of Langebaan and there are no topographical anomalies,
one would normally not
take height measurements on the adjoining
properpties.
14.4. In my opinion Mr. Pinker acted as any other prudent land
surveyor would have done in similar circumstances. I agree that in
an
instance where information and measurements were taken on adjoining
properties and to the extent that it is relevant, a land
surveyor may
well have used this information and measurements to postulate the
natural ground level of the property in question.
However, I am
satisfied that adequate measurements and considerations were taken
into account by Pinker to come to his conclusion.
15 At para 12
15.1. I admit that Mr. Pinker did not use any land surveying
practice with respect to the alleged height of the pre-existing dune
as it was not required from him to give a professional opinion
regarding the height of the pre-existing dune. As stated earlier
in
my affidavit, Mr. Pinker specifically pointed out in his report on
the height certificate that he merely added the 1,5m relating
to the
pre-existing dune. It is evident from Mr.Redelinghuys’
affidavit that he did not rely on any land surveying measurements
or
data with respect to the dune. I would point out, however, that
Mr.Redelinghuys did not attempt to provide an exact measurement,
but
stated that the dune was at least 1,5m higher than the floor level of
the existing building and that Mr. Pinker conservatively
added 1,5m,
nothing more.
15.2. Whereas I agree that one cannot accurately determine with
the naked eye what the height of a dune is before it is worked down,
one can most certainly say that it was higher than a specified
height.”
Attached to the founding affidavit is an unsigned affidavit by Mr.
Gavin Lloyd, a professional land surveyor with 32 years’
experience (as of December 2010). The document was intended to be
properly commissioned but appears not to have been. It therefore
carries less weight than the other evidence under oath but it was
not sought to be struck out by van der Merwe. It therefore
falls to
be considered along with the other evidentiary material before the
Court.
In this document Lloyd points out that whereas Williams is a duly
registered professional land surveyor, van Koersveld is not
–
he works as a “
registered surveyor
”, something
which the latter confirms in his affidavit. I presume that the
distinction in qualifications adverted to by
Lloyd is intended to
affect the standing of the individuals concerned regarding what is
an acceptable degree of professional
competence (or to use the
colloquialism, “
best practice
”).
It is apparent from the aforegoing that reliance by Pinker on the
Redelinghuys affidavit was not considered to be “
best
practice
” from a professional land surveying point of
view. And, whatever the “
best practice
” may be,
one only has to consider the Lloyd document in the context of the
case and, in particular, the welter of professional
opinions
regarding the likelihood or not of the existence of a dune on the
subject property to appreciate the risks inherent
in reliance on the
affidavit.
Firstly, and with the greatest respectto Mr.Geldenhuys and others of
his age, the affidavit was made by a person in his senior
years
(82). The question that immediately springs to mind is how accurate
Mr.Redelinghuys’s memory was at the time. Common
experience
tells one that adults of any age, when called upon to remember
events a decade or more before, may well struggle to
recollect
detail with the requisite degree of accuracy. And, in respect of
older persons, common experience also informs one
that some senior
citizens’ memories are remarkably intact, at, say, 80, while
others may have fallen foul of the ravages
of time at an earlier
age.
Next, one would ask how the height of the alleged dune was assessed
at “
at least a meter and a half
”? Was it perhaps
2m high, or was it 1,8m or even 1,3m? The height of the alleged dune
is critical to the calculation of
the maximum permissible height of
van der Merwe’s house and there can be no question of any
leeway or inaccuracy in that
regard.
Turning to the alleged dune itself, the affidavit does not convey
any idea of the extent of the surface area of the dune on the
subject property which is said to measure 1037 square meters. Did it
cover the entire extent of the erf, or was it a mound in
one corner?
An important aspect not traversed in the affidavit is one which
emerges from a number of the expert reports filed: was the dune
seasonally affected by the prevailing winds – the southeaster
in the summer and the northwester in the winter? And, if
it was so
affected, did its shape vary as to height and/or locality (the
phrase “
footprint
” is used by the parties in the
affidavits)? In other words, did the dune shift from summer to
winter, and if so, did it
move outside of the building lines on the
subject property?
Finally, with reference to what other level on the erf was the
measurement of 1,5m taken? This question is important because
there
may have been dips, hollows and mounds on the erf.
Given the fact that van Koersveld accepts in paragraph 15.1 of his
affidavit (and to which reference has been made above) that
Pinker
failed to apply the requisite land surveying practice to determine
the height of the dune, little more need be said on
the topic. One
is left, however, with the uncomfortable feeling that a professional
person has sought to accommodate the needs
of his client by making
his calculations “
in reverse
”,as it were i.e. by
commencing with the desired height of the structure and working
backwards to establish whether there
was any way in which the
obvious ground level could be augmented to legitimise the structure.
That having been said, I am satisfied
that reliance on the affidavit
of Redelinghuys was impermissible in the circumstances. To the
extent that van der Merwe may seek
to rely thereon in the future
(and there is every reason to believe that he will do so in the
absence of any undertaking to the
contrary), it is necessary to
preclude him from doing so. An order in terms of prayer 3 will be
the most effective and efficient
way of doing so.
THE NATURAL GROUND LEVEL OF THE SUBJECT PROPERTY
The provisions of the Amended Scheme Regs contain the aforementioned
definitions of the highest point of the natural ground level
of
erven in Langebaan and, in the context of a structure to be erected
on such an erf, the height thereof depending on the zonation
of the
particular property.
The Scheme Regs, like any other statutory
instrument or contract, fall to be interpreted in accordance with
the approach mandated
by the Supreme Court of Appeal in the
Natal
Pension Fund
case
18
.
In a scholarly summation of the relevant authorities, both local and
abroad, Wallis JA observed that:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible, each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A sensible meaning
is to be preferred to one that leads to an insensible or
unbusinesslike result or undermines the apparent purpose
of the
document. Judges must be alert to, and guard againist, the temptation
to substitute what they regard as reasonable, sensible
or
businesslike for the words actually used….The inevitable point
of departure is the language of the provision itself,
read in context
and having regard to the purpose of the provision and the background
to the preparation and production of the document.”
What then do the amended Scheme Regs contemplate in regard to a land
surveyingcertificate to be issued (if necessary) in regard
to plans
still to be submitted by van der Merwe? First of all the certificate
must be issued by a professional land surveyor
duly registered in
terms of the Professional and Technical Surveyors’ Act 40 of
1984. As with similar documents vetted
by other professional persons
(for example, bills of quantity or corporate financial statements),
the certificate must be issued
in accordance with the standard of
professional practice customarily attributable to such a person.
There is no definition in the Land Survey Act, 8 of 1977, pertaining
to a “
land surveying certificate
”, and so one
must interpret the term in the context in which it is found in the
Scheme Regs with due regard to the factors
mentioned above in the
Natal Pension Funds
case. The definition of the “
highest
point of [the] natural ground level”
in the Scheme Regs is
cast in terms which suggest that the height is to be measured from
the level of the ground which the surveyor
presently finds on the
property to be measured. There is no instruction in the definition
that it should be measured at some
other (earlier) time. Application
of that approach suggests that the natural ground level of the
subject property presently is
49,78m. Indeed that was the view of
Pinker in 1998. The maximum permissible height of any structure
thereon would therefore be
53,78m.
It appears from the affidavit of Williams that,
amongst professional land surveyors, there is a practice of applying
a different
method of measurement when the ground has been
“
manipulated
”
.
By that I understand him to mean that some form of earthworks have
taken place on the original level of the property which has
either
been raised or lowered as a consequence thereof.In this context the
focus of the height determination exercise falls on
the word
“
natural
”
,
so as to reflect the original level of the ground on the erf before
the intervention of human hand.
19
And, of course, it is not the human hand alone
which may have affected the height positively or negatively. One has
in mind here
a vacant plot which is severely eroded by flood water
or an unusually high tide on the one hand, and by the dumping of
fill,
rubble or sand on the other.
The wording of the definition of “
highest point of natural
ground level
” refers however not to “
natural
ground
” or “
the original ground level”
but
simply to “
ground
”. It seems to me then that the
level from which the 4m building height is to be measured is
therefore left to the professional
judgment of the land surveyor.
In the absence of clear and unequivocal evidence to the contrary,
one would have to assume in the instant case that the present
ground
level of the subject property is indeed the natural ground level.
The plethora of expert reports, fascinating as they
are, do not
assist one in determining conclusively whether there was previously
a dune on the subject erf itself (as opposed
to the area generally
surrounding that erf). Nor do they assist one in determining when
such dune was there, where on the erf
it was located and how it came
to be there. (Was it, for instance, caused by the unlawful removal
by a lazy, local builder of
sand for another building site?)
Finally, as I have already said, estimation of the height of such
dune is absolutely critical
– there can be no room for
estimation since even a couple of centimeters could affect the
calculation.
DELAY REVISITED
Having satisfied myself that the Applicants are otherwise entitled
to the full extent of the relief sought in the draft order,
I return
to the question of delay.
The relevant facts are that Capendale first saw the subject property
in 2005 when he bought the neighbouring vacant erf on which
his
house was later built. It is not disputed that he made enquiries
from the Municipality about extensions to the subject property
which
at that stage incorporated only the store room put up by van der
Merwe persuant to the August 2000 plan approval. Capendale
would
have had no reason at that stage to enquire whether the storage room
was lawfully there or not. Any right-thinking citizen
would be
entitled to assume that the Municipality had done its work properly
and that the structure had been approved as lawful.
In any event, the store room was demolished in 2010 in preparation
for the next phase of van der Merwe’s attempts to move
up to a
third level. It was only then that Capendale’s attention was
drawn to the possibility that van der Merwe’s
attempts may
have been unlawful. What the papers show is that Capendale did not
adopt a supine position. On the contrary, he
actively engaged in the
procedural steps which were aimed at protecting his rights, and he
participated in the initial phases
of the administrative decision
ultimately taken by the Municipality. This participation led to him
successfully challenging van
der Merwe’s efforts twice and
procuring the dismissal of two sets of subsequent plans.
When the Municipality failed to honour its undertaking to him in
December 2011 and passed the most recent set of plans, Capendale
approached this Court urgently for an interdict a second time, under
case no. 840/2012. The order then granted by Davis J on
20 January
2012 was for a
rule nisi
returnable on 5 March 2012, and
included the contemplation of review proceedings in relation to the
August 2000 approval within
30 days of the return date of the
rule
nisi
. The delay therefore is effectively a period of about 18
months i.e. from mid 2010 (when according to Capendale’s
affidavit
in case no. 840/2012, he became aware of the illegality of
the 2000 plan approval) until January 2012 when the first steps were
taken to embark on review proceedings.
In his celebrated judgment in
Camps
Bay Ratepayers
20
Griesel
J restated the approach to delay in pre-PAJA review applications
with his customary clarity. Of importance to the present
discussion
is the following:
“
3.
When considering what a reasonable time is to launch proceedings, one
has to have regard to the reasonable time required to take
all
reasonable steps prior to and in order to initiate those review
proceedings. Such steps include steps taken to ascertain the
terms
and effect of the decision sought to be reviewed; to ascertain the
reasons for the decision; to consider and take advice
from lawyers
and other experts where it is reasonable to do so; to make
representations where it is reasonable to do so; to attempt
to
negotiate an acceptable compromise before resorting to litigation; to
obtain copies of relevant documents; to consult with possible
deponents and to obtain affidavits from them; to obtain real evidence
where applicable; to obtain and place the attorney in funds;
to
prepare the necessary papers and to lodge and serve those papers.”
To these factors mentioned by Griesel J, I would only add the
following.If the less costly route of engagement in the public
participation
process can potentially achieve the same result that a
review ultimately may, parties cannot be blamed for following those
less
costly avenues before proceeding down the wide highway of High
Court litigation, a highway upon which well-healed lawyers gladly
drive in their expensive motor cars. Indeed, that principle is now
very effectively captured in s7 of PAJA, which mandates exhaustion
of
all internal remedies before the commencement of review proceedings.
As Griesel J points out, what amounts to a reasonable time (or
conversely an unreasonable delay) for the institution of review
proceedings, depends entirely on the facts of each case and the
length of time is not necessarily decisive. As the facts of this
case demonstrate, there was an on-going game of cat-and-mouse
between two neighbours and entry onto the aforementioned highway
was
an avenue of last resort.
In the circumstances, I am satisfied that there has not been an
unreasonable delay in the institution of the review proceedings
herein. That being so, it is not necessary to consider the second
leg of the
Oudekraal2
test.
COSTS
Finally, I turn to the issue of costs, which includes the costs of
the interdict application in case no. 840/2012 which stood
over for
later determination. That application was necessitated by the fact
that the Municipality did not stand by its undertaking
to Capendale
and that planning approval subsequently took place before he had
been shown a set of the latest plans. In such circumstances,
it
seems fair to me to order the Municipality alone to bear Capendale’s
costs.
As far as the review application itself is concerned (case no.
6580/2012), it is apparent that, but for the unlawful decision
of
the Municipality in August 2000 and its persistent reliance over the
years on the Pinker certificate, the review would not
have been
necessary. The Municipality has, however, not sought to defend its
decisions other than to put up the memorandum by
the Municipal
Manager to which reference has already been made. Van der Merwe has,
however, staunchly supported the Municipality’s
decision and
it is only fair that he should bear the costs of opposition to the
application.
ORDER
In the circumstances I make the following order:
(1) The decision of the Municipality of Saldanha Bay on 21 December
2011 to approve building plans submitted by 12 Main Street,
Langebaan(Pty) Ltd for alterations to the existing dwelling on erf
4295 Langebaan is reviewed and set aside;
(2) The decision of the Municipality of Saldanha Bay on 23 August
2000 approving plans submitted by 12 Main Street, Langebaan (Pty)
Ltd
and which authorised 12 Main Street, Langebaan (Pty) Ltd to erect a
structure on the existing dwelling on erf 4295 Langebaan
which
exceeded the permissible height of the Saldanha Bay zoning scheme
regulations is reviewed and set aside;
(3) The Municipality of Saldanha Bay is hereby directed to comply
with its obligations in terms of s39(1) of the Land Use Planning
Ordinance (Western Cape), 15 of 1985 and to enforce compliance by 12
Main Street, Langebaan (Pty) Ltd with the height restriction
provisions of the Saldanha Bay zoning scheme regulations in respect
of any structure erected on erf 4295 Langebaan, and not to
consider
any document that places reliance on the affidavit of Mr. C.D.
Redelinghuys dated 23 September 1998 in determining the
height
restriction;
(4) The Municipality of Saldanha Bay is to bear the costs in case no.
840/2012, and the costs of the application alone in case
no.
6580/2012; and
(5) 12 Main Street, Langebaan (Pty) Ltd is to bear the costs of
opposition in case no. 6580/2012.
________________
GAMBLE, J
FOR APPLICANT
:
Adv. l. Buikman (SC) and
Adv. M. O’Sullivan
INSTRUCTED
BY
:
Geldenhuys Attorneys
FOR
RESPONDENT
:
Adv. J.C. Heunis (SC)
INSTRUCTED
BY
:
Du
Plessis Mostert Attorneys
DATES
OF HEARINGS
: 28
and 29 January 2013; 8 April 2013
DATE
OF JUDGMENT
:
30 October 2013
1
S15(1)(a)
An owner of land may apply in writing to the town clerk…
(i) For an alteration of the land use restrictions
applicable to a particular zone in terms of the scheme regulations
concerned.
2
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
3
See
for example
Paola v Jeeva NO and Others
[2003] ZASCA 100
;
2004 (1) SA 396
(SCA);
Walele v City of Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC);
Camps Bay Residents’ and Ratepayers’
Association and Anotherv Harrison and Another
2011 (4) SA 42
(CC);
JDJ Properties
, infra.
4
See
secs 6 and 8 of PAJA
5
Y
uen
v Minister of Home Affairs
1998 (1) SA
958
(C) at 968H-969B.
6
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2010 (1) SA 333
(SCA) at 343 para 33
7
Van
Reenen and Yekiso JJ; CPD case no. 8112/04, 9 October 2007.
8
WolgroeiersAfslaers
(Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A);
SetsokosaneBusdiens (Edms) Bpk v Voorsitter,
NasionaleVervoerkommissie en ‘n Ander
1986 (2) SA 57
(A)
9
346H
10
Sokhela
and Others v MEC for Agriculture and Environmental Affairs (KZN) and
Others
2010 (5) SA 574
(KZP) at 615 para 82.
11
J.D.J.
Properties v Umngeni Local Municipality
[2012] ZASCA 186
(29
November 2012)
12
See
the comments of Prof.Hoexter in para 76
infra
13
Muller
and Others v Chairman, Ministers’ Council, House of
Representatives, and Others
1992 (2) SA 508
(C) at 516H-524J
14
Hoexter:
Administrative Law in South Africa at 248.
15
True
Motives84 (Pty) Ltd v Mahdi and Another
2009 (4) SA 153
(SCA) at
para 19 - See also
Walele v City of Cape Town
supra
and
Camps Bay Ratepayers’ and Residents’ Association v
Harrison
supra
.
16
Pharmaceutical
Manufacturers Association of SAand Another
:
in re ex
parte
President of the Republic of South Africa
[2000] ZACC 1
;
2000 (2)
SA 674
(CC) at 708-9.
17
Van
der Merwe has not undertaken not to rely henceforth on the Pinker
certificate, or the crucial document which underpins it,
the
Redelinghuys affidavit.
18
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA
593
(SCA) at para 17-26.
19
“
Natural
”
is defined in the Concise Oxford English Dictionary as
,
inter alia
,
“
existing
in or derived from nature; not made, caused by, or processed by
humankind.”
20
Camps
Bay Ratepayers’ and Residents’ Association and Others v
Minister of Planning, Culture and Administration, Western
Cape and
Others
2001 (4) SA 294
(C) at 306F-307H