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[2013] ZAWCHC 181
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Badenhorst and Another v Retief and Another (13145/13) [2013] ZAWCHC 181 (5 December 2013)
REPUBLIC
OF SOUTH AFRICA
N
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 13145/13
DATE:
05 DECEMBER 2013
In
the matter between:
FRANS
HENDRIK
BADENHORST
...............................................................
First
Applicant
RENEE
FREYA
BADENHORST
..............................................................
Second
Applicant
And
PAUL
JOHANNES DERRICK
RETIEF
...................................................
First
Respondent
THE
CITY OF CAPE
TOWN
................................................................
Second
Respondent
Before:
The Hon. Mr Justice Binns-Ward
JUDGMENT
DELIVERED: 5 December 2013
BINNS-WARD
J:
[1]
The applicants and the first respondent are the owners of two
residential properties in Welgemoed, Bellville, Western Cape.
Welgemoed lies within the municipal area of the municipality of the
City of Cape Town, which has been cited as the second respondent
in
the application.
[2]
The first respondent is engaged in effecting building extensions to
the dwelling house on his property. The first respondent’s
property lies directly across Hofmeyr Street from the applicants’
property. The situation of the dwelling houses on the
two properties
relative to each other is depicted in a number of photographs that
are attached to the papers. A large window
to be provided on the
upper storey of the building extension on the first respondent’s
property will provide an outlook in
the direction of the applicants’
property. The applicants allege that the effect will be to detract
from the privacy hitherto
enjoyed by their property and consequently
derogate from the value of their property.
[3]
The second respondent, as the responsible local authority, is charged
with the duty to deal with applications in terms of s
4 of the
National Building Regulations and Building Standards Act 103 of 1977
(‘the Building Act’) for authority to
build. It approved
the building plans for the extensions on the first respondent’s
property. It had been required to consider
and determine the
application for building plan approval according to the requirements
of s 7 of the Building Act.
[4]
Section 7 of the Building Act provides as follows in relevant part:
Approval
by local authorities in respect of erection of buildings
(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..
[5]
The applicants contend that the second respondent’s approval of
the building plan application was in contravention of
s
7(1)(b)(ii)(bbb) and (ccc) of the Building Act. They have instituted
proceedings for the review and setting aside of the building
plan
approval. The review application has been set down for hearing at
the end of February 2014, in just under three months’
time.
They sought interim interdictal relief prohibiting the first
respondent from carrying on with any building activity on his
property pending the determination of the review. The application
for interim relief came before Blignault J as the duty judge
dealing
with urgent applications in the Third Division. The learned judge
ordered that a rule nisi operating as interim interdict
should issue.
The proceedings before me at this stage are the extended return day
of that rule. The first respondent opposes
the confirmation of the
rule, and moves for it to be discharged with costs. The applicants
seek the confirmation of the rule.
[6]
The requirements that an applicant for interim interdictory relief
must satisfy are well established. They are (a) the existence
of a
prima facie right, even if it is open to some doubt; (b) a reasonable
apprehension by the applicant of irreparable and imminent
harm to the
right if an interdict is not granted; (c) the balance of convenience
must favour the granting of the interdict and
(d) the applicant must
have no other effective remedy. See e.g. National Treasury and
Others v Opposition to Urban Tolling Alliance
and Others
2012 (6) SA
223
(CC), at para 41, where Moseneke DCJ restated the requirements
with reference to the locus classicus decisions on point in Setlogelo
v Setlogelo
1914 AD 221
and Webster v Mitchell
1948 (1) SA 1186
(W).
(The latter judgment should, of course, be read with Gool v Minister
of Justice and Another
1955 (2) SA 682
(C) at 688 - cf. e.g. Simon NO
v Air Operations of Europe AB
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA), at 228G-H.)
[7]
The existence and relative certainty of the ‘right’ in
issue in a case like this is determined with reference to
the
prospects of success that the applicant appears to enjoy in the
pending review proceedings; cf. Ladychin Investments (Pty)
Ltd v
South African National Roads Agency Ltd and Others
2001 (3) SA 344
(N); Transnet Bpk h/a Coach Express en 'n Ander v Voorsitter,
Nasionale Vervoerkommissie, en Andere
1995 (3) SA 844
(T) and Camps
Bay Residents and Ratepayers Association and Others v Augoustides and
Others
2009 (6) SA 190
(WCC), at para 10. The court has to assess
those prospects, as best it can, on the probabilities as they appear
on the papers
before it.
[8]
In my assessment, the outcome of the review is going to be heavily
influenced, if not determined, by the effect of the applicable
provisions of s 7 of the Building Act. The proper construction and
effect of s 7 of the Building Act has been contentious. It
has given
rise to conflicting judgments from the Constitutional Court (Walele v
City of Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC)
(2008 (11) BCLR
1067
) and the Supreme Court of Appeal (‘SCA’) (True
Motives 84 (Pty) Ltd v Mahdi and Another
2009 (4) SA 153
(SCA)
(2009
(7) BCLR 712).
The applicants’ position in the pending review
application would be stronger if the approach adopted in the majority
judgment
in Walele (especially at para 55) were to be applied. A
much less sanguine view of their prospects of success is justified,
however,
if the SCA’s construction of the statutory provisions
prevails.
[9]
In Walele loc cit, the majority in the Constitutional Court held:
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 s
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 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. 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.
(footnotes
omitted)
[10]
In True Motives the majority in the SCA held that the aforementioned
part of the judgment in Walele had not formed part of
the ratio
decidendi of the judgment and accordingly was not binding upon it.
It also found that the majority in the Constitutional
Court had
wrongly construed the provisions of s 7(1)(b)(ii) of the Building
Act. The most relevant part of the majority judgment
in True Motives
(per Heher JA) is at para 20-24:
[20]
The use of the conjunction 'or' after s 7(1)(b)(i) makes it plain
that the enquiry postulated by subparas (aa) and (bb) of
s
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 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 s 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.
[21]
The refusal mandated by s 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.
[22]
The requirements of s 7(1)(b)(ii) are as follows:
(a)
If the local authority is satisfied (ie, as with ss 7(1)(a), capable
of reaching a positive conclusion) that the building will,
for
instance, disfigure the area, it must refuse to grant its approval.
This involves being satisfied that the outcome is certain.
(b)
If the local authority is satisfied that the building will probably
havea detrimental effect specified in subparas (aa) or (bb)
it must
refuse its approval.
(c)
If the local authority is not satisfied on either of the aforegoing
then the refusal of the building plans is not mandated or
indeed
allowed by s 7(1)(b)(ii). The decision-maker must then act on its
positive finding with respect to the requirements of
s 7(1)(a).
[23]
I agree with the amicus that on the aforegoing analysis a local
authority may entertain some level of concern about whether
a
proposed building will disfigure the neighbourhood or derogate from
the value of neighbouring properties (and so on), but that
concern
may not be at a high enough level for it to be satisfied that the
undesirable outcome is probable. If that is the state
of its mind (or
that of its authorised decision-maker) with respect to these issues,
the local authority must approve the plan.
[24]
When one has regard to the nature of the circumstances which may
compel a refusal of building plans under s 7(1)(b)(ii) one
sees that
they are very much matters of opinion, matters upon which reasonable
persons may disagree. They are not as clear-cut
as, for instance, the
distance a building is set back from a street. Recognising this, the
legislature introduced the concept of
a 'probability' that the
building would be of a certain type or have a certain effect…..
[11]
The applicants’ counsel submitted that this court should follow
the judgment in Walele. He sought support for this argument
in the
dicta of Brand AJ in the more recent unanimous judgment of the
Constitutional Court in Camps Bay Ratepayers' & Residents'
Association v Harrison
2011 (4) SA 42
(CC) (201
1 (2) BCLR 121)
at
para 28-30, where the learned judge rehearsed the doctrine of stare
decisis and reiterated the importance, by virtue of rule
of law
considerations, that courts lower in the hierarchy of the judicial
system should take care to respect it. What was said
in that regard
in Harrison was uttered in the context of the conflict between the
judgments in Walele and True Motive. It is notable,
however, that
the Constitutional Court did not go so far as to hold that the SCA
had deviated from the doctrine in deciding True
Motives. On the
contrary, Harrison was decided on the proper construction of s
7(1)(a) of the Building Act, and the applicant’s
endeavour in
that case to draw s 7(1)(b) into the argument was rejected. Harrison
thus does not constitute authority for the propositions
that the
majority judgment in True Motives was given in disregard of the stare
decisis principle or that the SCA’s construction
of s 7(1)(b)
was incorrect. In circumstances I am of the view that the stare
decisis principle requires this court to follow the
majority judgment
in True Motives.
[12]
Reference to Harrison is nevertheless useful because at para 34 of
the judgment Brand AJ succinctly restated the currently
relevant
difference between the judgments in Walele and True Motives:
Crucial
for the evaluation of the applicants' contentions rooted in s 7(1) is
the appreciation that the difference between the judgment
of this
court in Walele and the Supreme Court of Appeal in True Motives is
strictly confined to the interpretation of s 7(1)(b)(ii).
What the
difference comes down to is this: according to Walele the local
authority cannot approve plans unless it positively satisfies
itself
that the proposed building will not trigger any of the disqualifying
factors referred to in s 7(1)(b)(ii). If in doubt,
the local
authority must consequently refuse to approve the plans. According to
True Motives, on the other hand, a local authority
is bound to
approve plans, unless it is satisfied that the proposed building will
probably, or in fact, trigger one of the disqualifying
factors
referred to in s 7(1)(b)(ii). If in doubt, the building authority
must consequently approve the plans.
(footnotes
omitted)
[13]
It follows that in order to succeed in the review application the
applicants will have to show either that the relevant functionary
acting on behalf of the second respondent in approving plans did not
apply his mind at all, or that, having applied his mind, his
decision
was one that no reasonable functionary in his position could have
made, having regard to the provisions of s 7(1)(b)(ii)(bbb)
and (ccc)
of the Building Act. As the SCA has observed, the issues concerned
entail subjective judgment and one person’s
view may
legitimately differ from another’s. The applicants will have
to show on the second of the aforementioned hypotheses
that no
reasonable person could but have concluded on the facts that there
was a high probability that the proposed building extension
on the
first respondent’s property, and in particular its overlooking
feature, would derogate from the value of neighbouring
properties.
[14]
In making the assessment the functionary would have to bear in mind
that the meaning of ‘value’ in the context
of s 7 of the
Building Act is ‘market value’. Market value is
something different from price. Market value denotes
what the
notional reasonable and adequately informed purchaser would be
willing to pay for the res vendita. As explained in True
Motives at
para 30:
Market
value' is the price that an informed willing buyer would pay to an
informed willing seller for the property, having regard
to all its
potential at the time of sale, both realised and unrealised. One
important modifier of such potential, in the present
context, derives
from the existing controls on the property laid down in the
town-planning scheme and the title deed conditions.
Informed parties
would acquaint themselves with the zoning and the permissible limits
of height, coverage, bulk, building lines,
etc, all of which
influence the utility of the property, and, therefore, its inherent
value. Of course, potential for changing
any of these aspects may
also be apparent in appropriate market conditions. But such
conditions may also influence the likelihood
that a property will or
will not be exploited to the limits of its potential. From all this
it is obvious that the hypothetical
informed buyer and seller will
always be aware of inherent advantages and disadvantages flowing from
the lawful exercise of rights
and will build them into market price
according to how they assess the likelihood that they will occur. The
extent of such influence
is of course an objective question and the
subjective reaction of a particular party is only relevant to the
extent that it finds
a meaningful echo in the mind of the
hypothetical willing buyer or seller. Aesthetics, intrusion,
overshadowing and invasion of
privacy are all examples of
disadvantages which flow to a greater or lesser extent from the
lawful development of a property to
a potential which exceeds its
existing use. In every case involving assessment of value under s
7(1)(b) the local authority is
entitled and, indeed, obliged to take
into account adverse aspects of this nature where the informed
willing buyer and seller would
factor them into their purchase price.
That is done in order to arrive at market value. But derogation from
market value only commences
when the influence of such aspects
exceeds the contemplation of the hypothetical informed parties.
It
is thus readily conceivable that a property might realise a price
higher than its market value because in reality there are likely
to
be buyers who will be ready to purchase it having regard to the
property’s current advantageous characteristics without
sufficiently taking into account the potential for them to be
adversely affected by surrounding development. The valuations put
in
by the applicants seemed to me to be directed at the price that could
be realised for the property rather than its market value
properly
considered.
[15]
There is no suggestion in the current case that the building
extensions on the first respondent’s property do not comply
with the applicable constraints on development in terms of the
building regulations and zoning scheme provisions. The building
is
across the road from the applicants’ property and it is not
evident to me that an overlooking window having the effect
depicted
in the photographic evidence on the papers would be of such an effect
that it could not reasonably be expected ever to
arise. In the
circumstances, applying the construction of s 7(1)(b)(ii) of the
Building Act pronounced by the majority of the
SCA in True Motive, I
seriously doubt that the applicants will be able to show that a
person in the relevant functionary’s
position could not
reasonably not have had a high enough level of concern about the
effect of the proposed extensions on the market
value of their
property. I also have no doubt at all that the applicants are
unlikely to be able to show that the official with
delegated
authority to approve the building plan application did not apply his
mind at all. The evidence shows that the functionary
was aware of
the applicants’ complaint, invited their submissions and
engaged with the first applicant directly.
[16]
The applicants’ counsel sought to counter the effect of the
aforegoing line of reasoning by arguing that there was no
contradiction of the applicants’ averments in the supporting
papers that the functionary had not applied his mind and could
not
reasonably but have been sufficiently certain of the probable
derogation from the market value of the applicants’ property
that would follow upon the erection of a structure in accordance with
the first respondent’s building plans. He was correct
to say
that there was no affidavit from the functionary contradicting the
averments. This was because the City of Cape Town, understandably,
did not involve itself in the purely private question of interim
interdictal relief. The City is, however, opposing the review
application. But quite aside from those considerations, the court is
enjoined in deciding an application like the current one
to have
regard to the probabilities as they appear on the papers. The
reasoning which the applicants’ counsel sought to
counter in
the manner described is predicated on the outcome of such assessment
of the probabilities on the basis of the objective
factors mentioned,
which are not in dispute. Averments picked out from the supporting
affidavit in isolation cannot override the
effect of the inherent
probabilities ascertainable on the papers read as a whole.
[17]
But even were I persuaded to take a less dubious view of the
applicants’ prospects in the review application, it seems
to me
that the balance of convenience weighs against the applicants. The
only objectionable feature is the overlooking window.
If the review
succeeds and the building plans are set aside, it seems unlikely that
the first respondent would be required to
demolish the structure.
Amending plans providing for the window feature to be removed and
bricked up would suffice to remedy the
position. The inconvenience
occasioned by preventing the first respondent from completing the
building seems to me to outweigh
that would be occasioned by
requiring the applicants to tolerate the window until the review is
decided.
[18]
In the result the rule falls to be discharged and the application for
interim interdictal relief dismissed with costs. The
first
respondent’s counsel argued that the application had been an
abuse of process and in her heads of argument sought a
punitive costs
order. I have not been persuaded as to the merit of this argument
and costs will be allowed on the usual basis
as between party and
party.
[19]
The following order is made:
1. The
rule nisi issued on 14 August 2013 is discharged.
2. The
application for interim interdictal relief is refused.
3. The
applicants are ordered to pay the first respondent’s costs of
suit in the application as between party and party.
A.G.
BINNS-WARD
Judge
of the High Court
Date
of hearing: 5 December 2013
Date
of judgment: 5 December 2013
Before: Binns-Ward
J
Applicants’
counsel: Wesley Vos
First
Respondent’s counsel: Claire Riley
Applicants’
attorneys: AHB Attorneys, Still Bay
Walkers
Attorneys, Cape Town
First
Respondent’s attorneys: Francois Du Toit Attorney, Bellville
A
Batchelor & Associates, Cape Town