Baronetcy Estate Homeowners Association v Abdulahi (17258/2019 ; 8985/2022) [2026] ZAWCHC 422 (18 August 2026)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy



IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT

Case no: 17258/2019
Reportable
In the matter between:

BARONETCY ESTATE HOMEOWNERS ASSOCIATION Applicant

and

MOHAMED ABDULAHI Respondent

and
Case no: 8985/2022

In the matter between:

BARONETCY ESTATE HOMEOWNERS ASSOCIATION Applicant

and

MOHAMED ABDULAHI Respondent

Heard: 29 January 2026
Further submissions: 19 March 2026
Delivered: 18 August 2026

Summary: Homeowners association — application for demolition of portion
of dwelling exceeding height restriction in architectural rules — claim for
specific performance — whether court should exercise discretion to refuse —
cost of compliance disproportionate to harm — City issued final occupation
certificate - demolition refused. Municipal Planning By -law, 2015 — s
62(1)(b)(i) — design guidelines of a HOA may not introduce more restrictive
rules than those provided in the development management scheme — whether
section 142 preserves an association whose constitution was approved under
LUPO - restriction not declared void but held unenforceable against the
respondent in these proceedings as a matter of public policy.
Conduct rules — daily fine for occupation of dwelling without occupancy
clearance certificate issued by the association — whether fine exigible where
occupier holds an occupation certificate issued by the City — interpretation —
held not — Conventional Penalties Act 15 of 1962, section 3 — reduction of
penalty out of proportion to prejudice suffered — principles restated.


ORDER

The following order shall issue:

1. The application under case number 17258/2019 (the demolition
application) is dismissed.

2. The application under case number 8985/2022 (the penalties application)
is dismissed.

2. The applicant is ordered to pay the respondent's costs in both applications,
including the costs reserved in the application for consolidation
determined by Mangcu-Lockwood J on 5 August 2024, costs of counsel to
be taxed on Scale B.

3. The costs occasioned by the applicant in respect of its claim for arrear
levies shall be borne by the respondent.


JUDGMENT


HOLDERNESS J

[1] Before this Court for determination are two separate applications. In the
first, the applicant, Baronetcy Estate Homeowners Association (the applicant),
seeks the demolition of the portion of the roof of the dwelling of the respondent,
Mr. Mohamed Abdulahi (the respondent), which it alleges fails to comply with
its Architectural Rules or guidelines (the demolition application). In the second,
the applicant seeks payment of penalties raised against the respondent for what

it alleges to be his unlawful occupation of the property (the penalties
application).

[2] The applicant manages Baronetcy Estate in Parow, Western Cape,
consisting of 298 residential erven (the Estate), and, as part of its mandate,
enforces the rules applicable to the functioning of the Estate, including its
Architectural Rules. The respondent is the owner of Erf 2[...], also known as
3[...] D[...] Crescent, Baronetcy Estate (the property), and of two further erven
within the Estate.

[3] The demolition application was launched on 1 October 2019 and the
penalties application on 30 May 2022. On 5 August 2024 , Justice Mangcu -
Lockwood granted an order consolidating the two applications in terms of
Uniform Rule 11, with costs to be costs in the cause.

[4] The respondent brought a conditional counter -application in the penalties
application to review and set aside the applicant’s refusal to consider his
application to relax the applicable height restriction. That counter -application
was withdrawn, the respondent’s case being that it had been rendered moot by
the January 2024 affidavit of the Estate architect, Mr . Pieter Syfret. I need not
deal with it any further.

[5] The applications are both opposed. Mr. De Wet and Mr . Brink appeared
for the applicant in the demolition and penalties applications respectively. Mr .
Bothma, together with Mr . Matiso, appeared for the respondent in both
applications.

[6] Both applications are brought on motion, and in both the applicant seeks
final relief. In the demolition application it seeks an order for specific
performance in the form of the demolition of part of the respondent's dwelling.
In the penalties application it seeks payment of a liquidated sum. The affidavits
nevertheless disclose disputes of fact on a number of matters which are material
to the relief sought, which fall to be determined in accordance with the well-
established principles set forth in Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd.1

[7] The rule was restated in National Director of Public Prosecutions v
Zuma, where Harms DP observed that motion proceedings, unless concerned
with interim relief, are all about the resolution of legal issues based on common
cause facts, and that unless the circumstances are special they cannot be used to
resolve factual issues because they are not designed to determine probabilities.2

[8] The material facts in this matter are, for the most part, common cause. In
respect of the disputed facts, where the respondent has seriously and
unambiguously addressed the fact in issue, I am obliged to accept his version,
save where his allegation or denial is so far -fetched or clearly untenable that I
would be justified in rejecting it on the papers.

[9] The averments by the respondent are neither far -fetched, nor untenable,
nor was it suggested in argument that any of them can be described as such.

Factual background

1 Plascon-Evans Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at
634E–635C, per Corbett JA, Miller and Nicholas JJA and Galgut and Howard AJJA concurring. The passage
considers and qualifies the formulation in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957
(4) SA 234 (C) at 235E–G.
2 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 26.

[10] The Estate was created after subdivisional approval was granted by the
City of Cape Town ( the City) in terms of the now repealed Land Use Planning
Ordinance 15 of 1985 (LUPO). The applicant was established as a homeowners’
association in terms of section 29 of LUPO.3

[11] The applicant’s constitution annexed to the founding affidavit (the
Constitution) is described, on the cover page thereof as being ‘APPROVED 11
NOVEMBER 2008’ and as being subject to a ‘Second amendment: August
2017’. In paragraph 2 of the Constitution , the ‘Architectural Rules’ are defined
as follows: ‘(previously known as the architectural guidelines) prescribing the
architectural requirements for Dwellings in the Estate, as approved by the City
of Cape Town and as amended from time to time’.4

[12] Clause 5.2 of the Constitution provides that upon registration of
ownership of an Erf in the name of a purchaser, membership of the Association
by such purchaser shall be automatic and obligatory , and Members shall be
obliged to comply with the provisions of this Constitution and Rules.

[13] The respondent purchased the property on 4 May 2015. Ownership of the
property was registered in his name on 23 June 2015. On 29 June 2015, the City
of Cape Town Municipal Planning By -law, 2015 (the By -law) was
promulgated.5 It repealed LUPO and came into effect on 1 July 2015.6


3 Section 29(2) of LUPO provides: ‘A home owners’ association coming into being by virtue of the provisions
of subsection (1) ... shall be a body corporate; shall have a constitution which ... has as its object the control over
and maintenance of buildings, services and amenities arising from the sub -division concerned ... and shall have
as its members the owners of land units arising from the sub -division concerned, who shall be jointly liable for
expenditure incurred in connection with the association.’
4 ‘Rules’ are defined as ‘The Conduct Rules, Building Contractor Rules, Architectural Rules and such other sets

of rules as the Association may determine from time to time.’
5 The By-law was approved on 25 March 2015 and promulgated on 29 June 2015.
6 In terms of section 77 of the Western Cape Land Use Planning Act (LUPA).

[14] The applicant states in its founding affidavit that the applicable rules
‘relate to the enforcement of the Estate’s Architectural Rules ’. It thereafter
refers to the conduct rules, and annexes as a copy of the ‘applicable rules’ , the
“Baronetcy Estate Conduct Rules” , first issued on 25 April 2019 (the 2019
Conduct Rules). The 2019 Conduct Rules incorporate ‘Architectural Guidelines’
which are thereafter referred to as the Architectural Rules, at para 2.5 thereof.

[15] The Architectural Rules were annexed to the Constitution and did not
form a separate annexure to the applicant’s founding affidavit. However, it
appears from the cover page thereof, that the Architectural Rules were effective
from 1 September 2016 (the 2016 Architectural Rules).

[16] Clause 14 of the 2016 Architectural Rules sets out the applicable height
restrictions in the Estate. Clause 14.3 provides:

‘14.3 No portion of any building will be higher than 7.5m above the Natural
Ground Level (NGL) at any point, measured directly vertical to the higher point or or
alternatively the grade line.’

[17] The 2016 Architectural Rules do not define what a grade line is or how it
is to be measured.

[18] Placing reliance on the dictionary definition of a ‘grade line’ ,7 and a
professional land surveyors’ report and diagram attached thereto ,8 the
respondent contends that based on the applicant’s own wording in clause 14.3 of

7 The Merriam Websters Dictionary defines a ‘grade line as ‘the longitudinal reference line or slope to which a
highway or railway is built’. Mc -Graw-Hill Dictionary defines it as a line usually marked with stakes or
monuments, each having an elevation referred to a common datum (point), by measurements or computation
from such elevations and stakes, a grade is established between the terminal points.’
8 From which it appears that the respondent’s property has two slopes, one a steep slope of 38 degrees and one
of 8 degrees.

the Architectural Rules, the measurement from the grade line puts his building
in compliance.

[19] The applicant alleges that the building that the respondent constructed on
the property:

‘7.1 Exceeds the 7.5 metre maximum height restriction prescribed by the
Architectural Rules.

7.2 Exceeds the building lines recorded in the approved building plans. For
instance, the approved height of Roof C was 163,375 metres while the actual height
that was built for Roof C was 163,75, thereby exceeding by 375mm; and

7.3 Was not done in accordance with the approved plans.’

[20] The respondent, in answer, states that he purchased the property and
commenced construction in 2015, and highlights that the 2019 Conduct Rules
relied upon came into effect years after his plans were approved and
construction commenced.

[21] The applicant, in reply, states, somewhat unhelpfully, that: ‘[t]he contents
of these paragraphs is irrelevant. If the Respondent wanted to amend its
approved building plans, then he should have followed the procedure that is set
out in the rules. The Respondent and his builder were aware of this ’. It omits to
deal with the issue pertinently raised, that the 2019 rules cannot retrospectively
apply to the approval of plans and the construction of the respondent’s dwelling
in 2015.

[22] The respondent submitted his building plans to the applicant on 8
September 2015. The applicant’s Estate architect, Mr. Pieter Syfret (Mr. Syfret),
approved the respondent’s plans on 21 October 2015 . The applicant approved
the plans on 23 October 2015. The respondent commenced construction shortly
thereafter.

[23] In its founding affidavit , the applicant relies on an email which it sent to
the respondent dated 29 January 2016, recording that ‘ the respondent started
with construction on the property without the necessary plan approval from the
City. This caused the Applicant to threaten to impose a fine on the
Respondent…Eventually the City approved the respondent’s plan and the
applicant confirmed, in writing, that the Respondent could proceed with the
construction on the property’.

[24] In reply, Mr . Syfret stated that prior to September 2016, relaxation
applications were handled by requests per e -mail and a site inspection, with the
plan, on the relevant erf, with the architect. He averred that the respondent
should have proactively applied for an amendment of his plans before
commencing the casting of the first floor slab, as required by the architectural
guidelines and rules.

[25] Mr. Syfret referred to the architectural guidelines of November 2008,
which according to him, are the last ‘City certified architectural guidelines’
specifically clause 7.2.2 which provides that:

‘Designers are expected to respect view lines of neighbours where roofs will block
views. The association will enforce the use of flat roofs where this will assist in
keeping view lines open. Top floors will have their FFL to highest point of roof
restricted to 3.5 metres.’

[26] Mr. Syfret annexed ‘Draft Architectural Guidelines for Phase 9’ to his
affidavit. He describes them as being identical to the 2016 guidelines. Clause
7.2.2 of the 2008 guidelines provides that:

‘No portion of any building will be higher than 7.5m above the natural level at that
point. Note: Natural Ground Levels (NGL) are considered as the levels documented
on the current Site Development Plan at the time of the sale of the Erf.
Note: The Association may, on application, approve a departure from its above
requirement where a difficult sloping site requires a special relaxation.’

[27] Mr. Syfret acknowledged that the previous Estate architect approved the
house with the roof at the level that exceeded the height restriction, and that he
only became aware thereof when the height certificate was sent to him.

[28] It is not clear from the record when the building reached roof height. The
firm constructing the roof slab, Quickslab Precast Concrete Decking, in an
email dated 4 May 2017, informed the respondent’s contractor, Mr . Tony Di
Leva (Mr. Di Leva), that the depth of a reinforced concrete support beam above
the entertainment area had to be increased to keep within safety factors. This
resulted in an increase in the height of a small portion of the northwest corner of
the flat concrete roof.

[29] Mr. Di Leva liaised with the applicant’s on -site engineer, Mr. Syfret, and
held numerous site meetings with him regarding the increase, in the belief that it
remained in accordance with the 2016 Architectural Rules.

[30] On 20 March 2017 , the applicant requested that the respondent submit a
height certificate for the completed dwelling. Mr . Di Leva submitted the
requested certificate on 29 March 2017. Shortly thereafter, on 4 May 2017, Mr .
Orlandi advised the respondent of the increase in beam depth to 800mm.

[31] According to the evidence of the respondent, Mr . Di Leva attempted on a
number of occasions to explain to Mr . Syfret that he had used the natural
gradient height line ,9 on which basis the average roof height was 65mm below
the applicable restriction ,10 but Mr. Syfret insisted that the NGL be used and
directed the respondent to apply for relaxation of the requirement in clause
14.3.11

[32] Acting on such direction, the respondent applied for relaxation of the
height requirement for the already -built roof, including rider plans and a
photograph of the completed corner, which showed that a small portion of the
roof (according to the respondent, 6.76% of the entire roof area on the furthest
northwest corner exceeds the vertical line by 375mm). An updated height
certificate, together with an NGL survey map, was submitted to the applicant on
3 May 2017.

[33] The respondent’s immediate neighbour, Mr. Waseem Pillay, the owner of
Erf 2[...]2 (Mr. Pillay), inspected the respondent’s approved plans before
designing his own house so as to minimise its impact upon him.


9 That is, directly below the midpoint between roof slab corners.
10 As appears from the report of land surveyor Jacques Rossouw of Cape Geomatics, annexed to the
respondent’s answering affidavit.
11 Clause 14.3 of the 2016 Architectural Rules permitted use of either the Natural Ground Level or the grade
line.

[34] In a letter dated 26 May 2017, Mr . Pillay objected to the issue of a height
certificate to the respondent, recording that the increased height directly
impacted his view and the value of his property. He averred that had he known
the dwelling would be 375mm higher than provided for in the respondent’s
approved plans, he would have designed his own house accordingly. Another
one of the respondent’s neighbours, Mr . Sardine, by contrast, consented to the
relaxation.

[35] The respondent, while admitting that a small portion of the roof exceeds
the maximum height restriction by 375mm, asserts that this does not impair the
view of any other property on the Estate.

[36] Construction of the respondent’s house was completed on 26 June 2017.
On 5 July 2017 , the applicant informed the respondent that it would not issue
him an occupancy certificate, by implication refusing his request for a
relaxation (by 375mm) of the height restriction applicable within the Estate.

[37] The Constitution was amended for a second time in August 2017 and, on
18 September 2017, the applicant advised the respondent that it had resolved to
compile a policy for the amendment of height restrictions. On 20 September
2017, the respondent applied to the City for relaxation of the height restriction,
Mr. Pillay being invited to make representations.

[38] The City’s official conducted an in loco inspection at Mr . Pillay’s house
on 8 November 2017, in the presence of, among others, the other City officials
and Mr. Syfret. The City’s Building Inspector, Mr . Claude Muller, confirmed

that Mr. Pillay’s view was unobstructed and that the small area in question had
no impact on his property, which the applicant does not gainsay.

[39] The applicant only enacted a Height Relaxation Policy on 22 November
2017.

[40] On 30 November 2017 , the applicant’s committee resolved not to issue
the respondent an occupancy certificate. On the same day , the City issued him a
temporary occupancy certificate. On 1 December 2017 , the respondent
informed the applicant that he would take occupation that month. In response ,
the applicant informed him on 15 February 2018 that should he do so without
the requisite occupancy certificate, it would impose a fine of R700 per day.

[41] On 12 March 2018 , Mr. Orlandi wrote to the City on the applicant’s
behalf, strongly objecting to it entertaining the application without the
applicant’s notification, recording that no application for relaxation had been
received from the respondent in terms of the applicable rule, and accusing the
City of acting unlawfully in accepting drawings before they had been endorsed
by the applicant’s committee. Mr . Syfret requested that the City reject the
application and threatened legal action should it fail to do so.

[42] The applicant’s opposition was to no avail. The City’s Municipal
Planning Tribunal (MPT) approved the respondent’s application for amendment
of the height restriction on 16 April 2018. Mr . Pillay’s subsequent appeal was
dismissed by the City on 2 August 2018, and on 4 September 2018 the City
issued the respondent a final occupation certificate.

[43] On 25 April 2019 , the applicant adopted the 2019 Conduct Rules (the
2019 Conduct Rules), 12 which post -date both the approval of the respondent’s
plans and the construction of his dwelling by some years, and which post -date
his occupation of the dwelling in December 2017 by approximately sixteen
months.

[44] The demolition application was instituted on 1 October 2019. Shortly
thereafter, on 11 October 2019, the respondent’s attorney, Mr. Ahmen, proposed
to the applicant’s attorney, Mr. Graham, that the matter be referred to mediation,
and requested an inspection in loco of Mr . Pillay’s property. These requests
were, for reasons that do not appear from the record, declined.

[45] In a letter dated 5 August 2019, the respondent’s attorney of record, Mr .
Max Ahmen of Ahmen and Hamman Attorneys (Mr . Ahmen) raised an
allegation of capricious and discriminatory decision -making on the part of the
applicant, recording that between 8 August 2017 and 24 July 2018 the applicant
had approved numerous applications for relaxation of the Architectural Rules, in
some cases before, during and after construction, without any instruction to
demolish.13 In the same letter, on the respondent’s behalf, Mr . Ahmen withdrew
the earlier contention that the City was entitled to override the provisions of the
Constitution.

[46] On 17 August 2021, after the applicant delivered its replying affidavit, it
invited the respondent again to submit an application for the approval of new
building plans.


12 Annexed to its founding affidavit as “BE3”.
13 Copies of the relevant minutes of meetings of the applicant were annexed to the respondent’s answering
affidavit.

[47] In an affidavit by Mr . Sean Stuttaford, the chairman of the managing
committee, deposed to on 21 December 2023, it appears that the demolition
application was set down for argument before Nuku J on 25 August 2021. After
considering what is described as ‘some argument’ , Nuku J postponed the
application sine die for the respondent to enter into discussions with Mr. Pillay
regarding his objection to endeavour to resolve the impasse, and to formally
apply for an amendment to the approved building plans with applicant,
hopefully with the approval of Mr. Pillay.

[48] On 13 October 2021, the respondent submitted a formal application to the
applicant for relaxation of the height restriction. The applicant approved that
application subject to the respondent obtaining Mr . Pillay’s consent and paying
certain fines.

[49] The respondent appealed only the aspect of the decision that related to the
payment of certain fines. T he applicant upheld the appeal on 14 February 2022,
granting relaxation subject only to Mr . Pillay’s consent being obtained. On 30
May 2022, the applicant instituted the penalties application.

[50] On 13 January 2026 , Mr. Ilarion Orlandi, the portfolio manager for the
applicant (Mr. Orlandi), deposed to an affidavit stating that during the course of
preparation of the applicant’s heads of argument in this matter, it became
evident that the incorrect 2019 Conduct Rules had been annexed to the founding
affidavit. He annexed the 2016 Conduct Rules which he stated is, in relevant
part, identical to the 2019 Conduct Rules, in particular clause 2.5.6 which, in
both documents, provides that:

‘A fine of R700,00 per day will be issued until occupancy clearance certificate is
issued by the COMMITTEE if the dwelling was occupied.’

[51] Mr. Orlandi further attached a copy of the minutes of the Committee
Meeting of the applicant held on 16 February 2016 at which the 2016 Conduct
Rules were formally adopted. He sought leave for this further affidavit to be
admitted.’

[52] The respondent opposed the filing of this further affidavit. For reasons set
out below, the affidavit does little to assist in the determination of the matter.
Inasmuch as it does place the correct version of the 2016 Conduct Rules before
the court, it is admitted. I pause to mention that it could not however only have
come to the applicant’s attention that the incorrect document was annexed
during the course of preparation of its heads of argument, as this oversight was
pointedly raised by the respondent in its answering affidavit, deposed to on 6
July 2020.

The applicant’s submissions
[53] I turn now to consider the submissions advanced on behalf of the
applicant in both the demolition and the penalties applications.

[54] In the demolition application, t he applicant’s claim is one for specific
performance, in accordance with the well -established principle that a party to a
binding agreement who is ready and willing to perform his own obligations is
prima facie entitled to demand performance of the other party’s reciprocal
obligations.

[55] At the outset , it bears mentioning that Mr. De Wet fairly conceded that
there is no precedent for demolition at the behest of the applicant in
circumstances such as these, particularly where the City granted a deviation,
approved the respondent’s plans, and issued temporary and final occupancy
certificates.

[56] The applicant , however, emphasised that when the respondent chose to
build his house while simply ignoring the obligations imposed on him by the
2016 Conduct Rules and Architectural Rules, including seeking the views of his
neighbour and building only in accordance with approved plans, he did so at his
peril.

[57] Regarding the exercise of the court’s discretion, the applicant highlighted
that the applicable case law deals with where the party seeking enforcement has
the option of claiming damages, and that the applicant does not have such an
option available to it as it is not suffering monetary damages. It contended that
the respondent’s position is entirely self -created, as he knew when the ground
floor was built that his plans were not compliant, and should have engaged with
the Estate architect before proceeding.

[58] The applicant placed emphasis on the fact that by purchasing a property
in the Estate, the respondent voluntarily submitted to the applicant’s rules, citing
the following passage by Ponnan JA in Mount Edgecombe Country Club Estate
Management Association II (RF) NPC v Singh and Others (Mount
Edgecombe):14


14 Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh and Others [2019]
ZASCA 30; 2019 (4) SA 471 (SCA) (Mount Edgecombe).

‘When the respondents chose to purchase property within the estate and become
members of this Association, they agreed to be bound by its rules. The relationship
between the Association and the respondents is thus contractual in nature. The
conduct rules, and the restrictions imposed by them, are private ones, entered into
voluntarily when an owner elects to buy property within the estate. By agreement, the
owners of property within the estate acknowledge that they and their invitees are only
entitled to use the roads laid out within the estate subject to the conduct rules.’15

[59] Over a century ago, in Farmers’ Co-operative Society v Berry,16 Innes JA
held that the right to specific performance is beyond doubt, subject only to the
court’s discretion and save for where performance is impossible, and that the
election whether to claim performance or damages lies with the injured party,
subject to such discretion.

[60] The court’s discretion must, of course, be exercised judicially. It is not
circumscribed by any fixed rules, and each case must be judged according to its
own facts and circumstances.17

[61] In Ethekwini Municipality v Cooperativa Muratori and Cementisti - CMC
di Ravenna Societa Cooperativa,18 the Supreme Court of Appeal (the SCA)
affirmed that in deciding whether to order specific performance, the court has a
true or strict discretion, that is a choice between permissible alternatives, and
that specific performance will not be granted where compliance with the order
will be impossible to enforce, 19 will be unduly onerous and lead to undue

15 Id para 19.
16 Farmers’ Co-operative Society (Reg) v Berry 1912 AD 343.
17 Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) ( Haynes) at 378G; as well as Benson v SA
Mutual Life Assurance Society [1985] ZASCA 114;1986 (1) SA 776 (A) at 782F-783C.
18 Ethekwini Municipality v Cooperativa Muratori and Cementisti - CMC di Ravenna Societa Cooperative
[2023] ZASCA 95; 2023 (6) SA 384 (SCA) paras 37 and 38.

[2023] ZASCA 95; 2023 (6) SA 384 (SCA) paras 37 and 38.
19 Murray & Roberts Ltd v Alstom S&E Africa (Pty) Ltd [2019] ZAGPJHC 300; 2020 (1) SA 204 (GJ) para 12.

hardship or where the order may lead to a lengthy dispute as to what its
obligations are.20

[62] On the issue of undue hardship, the applicant contended that as the cost
which the respondent would have to incur to comply with his approved plans is
less than 20% of the value of his property, and the fact that he is clearly a man
of means who owns three properties in the Estate, ordering him to perform
would not operate unduly harshly against him.


[63] Turning now to the applicant’s submissions advanced in the penalties
application, Mr. Brink on behalf of the applicant submitted that any uncertainty
as to retrospectivity of the 2016 Conduct Rules had been resolved by the
affidavit of Mr. Orlandi, and that, properly interpreted, clause 2.5.6 of the 2016
Conduct Rules sanctions the imposition of the penalty, irrespective of the
respondent’s possession of a City occupation certificate, as clause 2.5.5
subordinates the City’s certificate to that of the applicant’s.

[64] Mr. Brink contended further that clauses 2.5.7 to 2.5.9 demonstrate that
the certification regime is concerned only with the applicant’s own
requirements.

[65] The applicant’s stance was that section 62(1)(b)(i) of the By-law does not
apply to its rules, as section 142 thereof preserved the Constitution approved
under LUPO prior to the By -law’s commencement, and that any other
interpretation may be ‘constitutionally suspect’.

[66] On the question of whether the penalties imposed by the applicant fall to
be reduced under section 3 of the Conventional Penalties Act 15 of 1962 (the
Penalties Act), the applicant submitted that the respondent’s own conduct, in
particular that he did not apply to regularise the building work until directed to
do so by Nuku J, and that he came to court with unclean hands, rendered the
penalty proportionate, and that this Court should have regard to the hardship
said to have been suffered by Mr. Pillay and to the respondent’s evident means.

The respondent’s submissions
[67] In respect of the demolition application, the respondent resisted the relief
sought on three bases. Firstly, that the deviation was authorised by a caveat in
the approved building plans, which prioritised structural integrity over
architectural design, and that the deviation, which was necessitated by a safety -
related instruction from the structural engineer rather than any deliberate
departure by the respondent, did not constitute a breach at all.

[68] Secondly, that the applicant had, in principle, approved the deviation
subject only to Mr. Pillay’s consent, as recorded in the minute of 3 March 2022,
and that Mr. Pillay’s failure to challenge the City’s final decision approving the
height relaxation and issuing the respondent with a final certificate of
occupation, amounted to acquiescence in it.

[69] Thirdly, that this was an appropriate case for the exercise of this Court’s
discretion against specific performance, having regard to the minor and de
minimis nature of the deviation, its structural origin, the City’s approval of the

relaxation, a remedial cost exceeding R1,4 million, and Mr . Pillay’s asserted
obstructiveness.
[70] In respect of the penalties application, the respondent submitted that the
2019 Conduct Rules could not be invoked retrospectively to conduct predating
their adoption in April 2019, and that on a proper construction of clauses 2.5.5
and 2.5.6 of the 2016 Conduct Rules, which the applicant ultimately sought to
rely on, no penalty was exigible where a City occupation certificate had been
obtained, as clause 2.5.5 expressly sanctions occupation on that basis and
subordinates the applicant’s own certificate to the City’s.

[71] Moreover, the respondent contended that this was an appropriate case for
the application of section 3 of the Penalties Act, the applicant having failed to
establish any financial prejudice and the penalty claimed being grossly
disproportionate to any prejudice shown.
[72] The respondent submitted further, an argument this Court considers
logically anterior to those above, that the applicant’s 2016 Architectural Rules
were themselves unenforceable under section 62(1)( b)(i) of the By -law, being
more restrictive than the DMS, and that section 142 of the By -law, properly
construed, did not exempt the applicant from that provision merely because its
Constitution had first been approved under LUPO, particularly since the 2016
Architectural Guidelines were adopted only after the By-law’s commencement.

The validity of the Architectural Rules under the By-law

[73] Having concluded that, in my discretion the demolition application must
fail, it is not strictly necessary to decide whether the 2016 Architectural Rules
are valid. This issue was, however, fully argued and addressed in further written
submissions delivered after the hearing. It is an issue of general importance in

my view, and it may fall to be determined should my decision not to order
specific performance not survive scrutiny by a higher court. It is addressed on
this alternative basis and does not go to the root of the reasons for the order I
make in the demolition application.

[74] It bears mentioning that the applicant’s rules by all accounts have been
amended more than once, and the parties have not always been consistent
regarding which version is relied upon.

[75] The applicant in its founding affidavit relied upon the 2019 Conduct
Rules which it annexed. It is now common cause that those rules cannot govern
conduct predating their adoption, 21 and the applicant does not contend they
should operate retroactively. The applicant now relies on the 2016 Conduct
Rules and the 2016 Architectural Rules, as stated in the January 2026 affidavit
of Mr. Orlandi.

[76] The chronology of events is important. The respondent submitted his
plans to the applicant on 8 September 2015. They were approved by Mr . Syfret
on 21 October 2015 and by the applicant on 23 October 2015. Construction
commenced shortly thereafter, the precise date is unclear.

[77] The 2016 Architectural Rules appear to have been adopted on 1
September 2016 and therefore cannot govern the initial approval of the
respondent’s plans by the applicant. It is self -evident that the power of an
association to amend its rules from time to time binds members going forward.


21 On 25 April 2019.

[78] It follows that the rules governing the approval of the respondent’s plans
in October 2015 were the Architectural Guidelines adopted on 11 November
2008 (the 2008 guidelines).

[79] One of the confounding issues in this application is the unsatisfactory
state of the papers, in particular with regard to the 2008 guidelines.

[80] Mr. Syfret describes the 2008 guidelines as the last guidelines certified by
the City, and cites clause 7.2.2 firstly as providing that designers are to respect
the view lines of neighbours where roofs will block views and elsewhere
attributing a different provision to clause 7.2.2, namely that no portion of any
building will be higher than 7.5 metres above the natural level at that point, and
that NGLs are those documented on the Site Development Plan (SDP) at the
time of sale of the erf. He furthermore states that the applicant may on
application approve a departure from that requirement where a difficult sloping
site requires a special relaxation.22

[81] These distinctions are significant, as they determine whether the question
of validity arises at all. If the 2008 Guidelines restricted building heights to 7.5
metres, it would follow that the restriction upon which the applicant places
reliance was not introduced by the 2016 Architectural Rules but was contained
in an instrument in force before the commencement of the By-law.

[82] It bears mentioning that the applicant’s complaint is not that the plans
ought not to have been approved, but rather that the respondent did not build in

22 In terms of Draft Architectural Guidelines for Phase 9 , which Mr. Syfret describes as ‘identical’ to the 2016
Guidelines.

accordance with the approved plans, and that the completed roof exceeds the
restriction in clause 14.3 of the 2016 Architectural Rules by 375 mm.

[83] The evidence regarding when the building reached a height which
exceeded the height restriction threshold is also unsatisfactory. On a conspectus
of the evidence, it appears that construction commenced in 2015 (shortly after
the plans were approved) and that the roof slab was built only in 2017, that is
after the 2016 Architectural Rules were in effect.

[84] The applicant requested a height certificate for the completed dwelling on
20 March 2017. The certificate was delivered by Mr . Di Leva on 29 March
2017. An updated height certificate together with a NGL survey was delivered
on 3 May 2017 and construction was completed on 26 June 2017.

[85] It appears on the evidence before me that whatever the precise date upon
which the roof slab was cast, it cannot have preceded the commencement of the
2016 Architectural Rules on 1 September 2016.

[86] Arising from the foregoing, the rules appear to govern the conduct by the
respondent of which the applicant complains, and it is upon clause 14.3 of those
rules that the applicant’s case is founded. It is therefore the validity of the 2016
Architectural Rules which falls to be considered.

[87] Section 62(1)( b)(i) of the By -law provides that the constitution of an
owners’ association may provide for the control, administration and
management of design guidelines for buildings and landscaping on land units
arising from a subdivision, provided that design guidelines may not introduce

more restrictive development rules or land uses than provided in the
development management scheme.

[88] The restriction imposed by the guideline must be considered together
with and compared to the parameter which the DMS permits for the land unit or
property in question. The design guideline restriction is common cause. Clause
14.3 of the 2016 Architectural Rules provides that no portion of any building
will be higher than 7.5 metres above the natural ground level at any point,
measured directly vertical to the higher point, or alternatively the grade line.

[89] The second is supplied by the By -law itself. The property falls within
Single Residential Zoning 1. The development management scheme, which is
Schedule 3 to the By -law,23 fixes the maximum height of a building in that
zoning by reference to the area of the land unit, measured from base level to the
wall plate and to the top of the roof. 24 For a land unit of the extent of the
property, the maximum height to the top of the roof is 11 metres.25

[90] The comparison is therefore between a Scheme which permits 11 metres
to the top of the roof above base level, and a guideline which permits 7.5 metres
to any point of the building above natural ground level or the grade line. 26 The
difference between the two figures is 3.5 metres, and nothing on the record

23 Section 22 of the By-law: the DMS is the scheme in Schedule 3.
24 Item 22(c) of Schedule 3 to the By -law, read with the table of floor factor, floor space, height and building
lines in Single Residential Zoning 1. [Wording to be confirmed against the gazetted Schedule. The datum was
expressed as base level at the material time and was substituted by existing ground level with effect from 3
February 2020.]
25 See also the summary of zonings and development rules in Chapter 4 of the Scheme. The operative provision
is item 22(c). The summary was substituted with effect from 1 July 2016 and from 3 February 2020 and was

deleted and replaced with effect from 1 October 2025.
26 Two of the three variables differ. The datum is not the same, base level and natural ground level being distinct
measures; and the point at which the measurement ends is not the same, the Scheme measuring to the top of the
roof and the guideline to any point of the building. The comparison is not one of like with like, but nor is the
margin between the two narrow or negligible.

suggests that a difference of that order is attributable to the datum or to the
measuring point rather than to the substance of the restriction. Indeed, the
guideline is the stricter in method as well as in magnitude, since it constrains
every point of the building rather than the highest point only.

[91] The 2016 Architectural Rules accordingly introduce a more restrictive
development rule than that provided in the DMS and appear to fall within the
prohibition in the proviso to section 62(1)(b)(i).

[92] The applicant relies on section 142, which preserves an approval in force
under a law repealed by the Land Use Planning Act, in casu LUPO, and regards
it as having been issued in accordance with the By -law subject to the conditions
under which it was issued. 27 Its Constitution having been approved under
LUPO, it contends that section 62(1)( b)(i) has no application to it, and that any
other interpretation would be constitutionally suspect.

[93] I am not persuaded that this is indeed correct. Section 61(10) provides
that a homeowners’ association established in terms of a previous planning law
and existing at the commencement of the By -law is deemed to be an owners’
association established in terms of it. 28 Sections 2(1) and 2(2) provide that the
By-law applies to all land within the City and binds every owner and user of
land.

[94] Historical and newly -established associations are accordingly placed on
an equal footing going forward. In the present matter , the respondent became a

27 Section 142(1). The subsection was substituted by the Municipal Planning Amendment By -law, 2025 with
effect from 1 October 2025.
28 Section 61(10). ‘Planning law’ is defined in section 1 as the Townships Ordinance 33 of 1934 or LUPO,
whichever is applicable.

member of the applicant upon registration of transfer on 23 June 2015, a little
over a week before the By -law took effect on 1 July 2015. However, the rule
which he is said to have breached was made some fourteen months after the By -
law took effect.

[95] Section 142 is a savings provision preserving the continued force of a
pre-existing approval. In my considered view , it does not authorise an
association thereafter to amend its rules and adopt new and more restrictive
guidelines, as the applicant did in 2016, free of the limits which the By -law had
by then imposed on such rule-making.

[96] Mr. Brink submitted that section 62(4), which makes certification a
condition of the effectiveness of an amendment concerning a section 62(1)( a)
matter, is inapplicable because the 2016 amendments concerned the conduct
rules rather than the Constitution itself. The submission is correct as far as it
goes, but it does not assist the applicant.

[97] The certification regime in the By -law is limited. Section 62(2) obliges
the City to certify that a constitution complies with subsection (1)( a) only, and
section 62(4) makes certification a condition of effectiveness only for an
amendment concerning a subsection (1)(a) matter.29 Design guidelines appear in
subsection (1)( b). The By -law therefore does not provide for certification for
design guidelines at all. It follows that they are neither certified nor certifiable.

[98] It follows that nothing turns, for the purposes of section 62(1)( b)(i), upon
the averment by the applicant that its 2016 Architectural Guidelines have been

29 Sections 62(2) and 62(4) of the By-law.

submitted to the City but not yet certified, nor upon Mr . Syfret’s description of
the 2008 guidelines as the last City-certified guidelines.

[99] The prohibition operates upon the content of a guideline, whether or not
the rules in which it is set out are certified, certifiable or neither. The absence of
the City’s approval is, however, of potential significance in another regard, to
which I now turn.

[100] Clause 2 of the Constitution defines the Architectural Rules, previously
known as the Architectural Guidelines, as those prescribing the architectural
requirements for dwellings in the Estate, as approved by the City and as
amended from time to time.30

[101] The obligation which clause 5.2 imposes upon a member upon
registration of ownership is an obligation to comply with the Constitution and
the Rules, and the Rules are defined by reference to the same clause.31

[102] The question which then arises is whether a member is obliged to observe
rules imposed by the applicant which the City has not approved or certified. Mr .
Syfret’s evidence is that the guidelines of November 2008 are the last which the
City certified, and the applicant averred that the 2016 Architectural Guidelines
were submitted for certification but have not been certified.

[103] On that evidence , it would be open to the respondent to contend that the
2016 Architectural Rules are not Architectural Rules as the applicant’s own

30 Clause 2 of the Constitution. ‘Rules’ are defined in the same clause as the Conduct Rules, Building Contractor
Rules, Architectural Rules and such other sets of rules as the Association may determine from time to time.
31 Clause 5.2 of the Constitution.

Constitution defines them, and that clause 5.2 does not attach to them at all.
That contention, were it sound, would dispose of the applicant’s reliance on
clause 14.3 without recourse to the By -law. This was not addressed in argument
and I accordingly take it no further.

[104] The respondent’s argument encounters a difficulty of its own, arising
from the definitions. ‘Development rule’ is defined in the By-law as a provision,
restriction or condition in the DMS which sets out the permissible extent of the
land use in terms of a zoning, and ‘land use’ by reference to the same Scheme. 32
Read with those definitions substituted, the proviso would forbid design
guidelines from introducing provisions of the Scheme, which a private
instrument could never do.

[105] The definitions are, however, prefaced by the words ‘unless the context
indicates otherwise’, and in my view the context does so indicate. The proviso
closes with ‘than provided in the development management scheme’. This
makes sense only if the proviso contemplates that a guideline may contain a
restriction of the same character as a development rule, and forbids its being
stricter than that of the Scheme. A construction which deprives express words of
their function is one which the unitary approach propounded in Natal Joint
Municipal Pension Fund v Endumeni Municipality (Endumeni)33 counsels
against.

[106] I am conscious of the fact that design codes in private estates are
commonly stricter than the DMS. That is frequently their purpose. If the proviso
means what I have suggested that it means, the private rules imposed by Home

32 Section 1 of the By-law, definitions of ‘development rule’ and ‘land use’.
33 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) paras 18 and 19.

Owners’ Associations ( HOAs) are, to the extent that they are more restrictive
than the DMS, potentially unenforceable.

[107] This consequence has a far -reaching effect, but it is the consequence of a
choice which the City appears to have made deliberately. Municipal planning is
an exclusive municipal executive competence under section 156(1) of the
Constitution read with Part B of Schedule 4, which the City exercised through
the promulgation of the By-law.

[108] The By -law includes the Scheme, which fixes the development
parameters for every land unit in the City. An interpretation permitting a private
association to impose, by amendment of its own rules, a more restrictive land -
use regime than the Scheme would substantially undermine that scheme of
municipal control.

[109] Another municipality in this Province has expressly provided that design
guidelines may introduce more restrictive development rules than the zoning
scheme.34 That the City chose the opposite formulation is, in my view,
significant.

[110] The applicant relied heavily on the SCA decision of Mount Edgecombe,
and in particular on the finding that it cannot be said that ordaining a lower
speed limit within an estate than that prescribed by national legislation goes
beyond promoting, advancing and protecting the interests of members or is
unreasonable, and that there was no conflict between the National Road Traffic
Act 93 of 1996 (the NRTA) and the association’s rules because the consensual

34 Stellenbosch Municipal Land Use Planning By -law, 2022, which provides that design guidelines may
introduce more restrictive development rules than the rules provided for in the zoning scheme . This is of course
a more recent By-law of a different municipality and carries no interpretive authority over the By-law.

limit of 40 km/h was lower than the statutory limit of 60 km/h, the mischief at
which the NRTA was aimed being achieved a fortiori.35

[111] The argument is that the present case is the same. A stricter private rule
regarding the maximum building height in the Estate serves the purpose of the
public one and cannot conflict with it. This is a persuasive submission, which I
now turn to consider.

[112] To my mind, the answer lies in the difference between the two statutory
schemes. The NRTA does not regulate homeowners’ associations. It fixes a
public speed limit and says nothing what soever about the content of an estate’s
conduct rules. To my mind , that is why the SCA held that the rules had no
public law content, that the association was not purporting to carry out any
function under the NRTA, and that the position might have been different had it
sought to appropriate powers thereunder.36

[113] The By-law stands on a different footing. Sections 61, 62 and 63 regulate
owners’ associations as such. Section 61(10) deems a pre-existing association to
have been established under the By -law. Section 62(1) prescribes what its
constitution must and may provide for. Sections 62(2) and 62(4) subject part of
that content to municipal certification. Lastly, section 62(7) obliges the
association to enforce its constitution.

[114] The City has thus expressly encroached upon what an estate’s rules may
contain. An association making design guidelines under the By -law is not, as in

35Mount Edgecombe paras 22 and 25.
36 Id paras 21 and 25.

Mount Edgecombe , operating in a sphere which the legislation leaves
untouched.

[115] In my view and for these reasons , this matter is clearly distinguishable
from Mount Edgecombe. Section 62(1)( b)(i) forecloses it by expressly
providing that the association’s design guidelines may not introduce more
restrictive development rules than the Scheme. 37

[116] There remains the question of consequence, which was not addressed in
argument. It bears emphasising that as this issue is not ultimately dispositive of
the order which I intend making, the parties will not be prejudiced by not
having an opportunity to make submissions in this regard.

[117] A contravention of a statutory prohibition does not invariably render void
that which contravenes it. In Cool Ideas 1186 CC v Hubbard ,38 the
Constitutional Court held that the building contract there in question remained
valid, the prohibitions being directed not at the validity of construction contracts
but at the entitlement of an unregistered builder to receive payment. 39 The
enquiry is directed not at whether a prohibition exists but at what it is aimed at,
determined purposively and in the context of the instrument as a whole.

[118] Factors which in my view weigh against declaring the rules in question a
nullity are, firstly, that section 62(1)(b)(i) does not create an offence, nor does it
make an express provision as to invalidity .40 Secondly, a declaration that the

37 Id para 28, substituted order.
38 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC) (Cool Ideas).
39 Id at paras 47 and 51, per Majiedt AJ. The contrary view of Jafta J at para 102 was that of a judgment
concurring in the order only.
40 Id paras 53, 54, 57, 58 and 60.

restriction is void would operate beyond these parties and affect the other 297
members of the Estate, none of whom is before me, nor is the City.

[119] Section 63 is triggered only by a failure to meet an obligation under
section 61(5)(d) or section 62(1)( a)(ii), or by an association ceasing to function
effectively.41 Neither appears to contemplate the adoption of an over -restrictive
design guideline. There is no provision for certification for a subsection (1) (b)
matter, and no offence is created.

[120] On a purely regulatory reading , the proviso would carry no sanction
whatsoever and would be reduced to exhortation.

[121] The course which accommodates both considerations is to approach the
matter as one of enforcement rather than of validity. In Cool Ideas , the main
judgment, having accepted the prohibition, did not treat the consequence as
automatic. The apex court held that it will often be contrary to public policy for
a court to enforce an award at odds with a statutory prohibition, but that it will
not always be so, and that the force of the prohibition must be weighed against
countervailing considerations.42

[122] That is the enquiry which Beadica 231 CC and Others v Trustees for the
time being of the Oregon Trust and Others 43 enjoins courts to undertake: firstly,
whether the term itself is so unreasonable as to be contrary to public policy; and

41 Section 63 of the By-law.
42Cool Ideas paras 57 and 58.
43 Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others [2020] ZACC 13;
2020 (5) SA 247 (CC) (Beadica).

secondly, whether the term being unobjectionable, its enforcement in the
particular circumstances would be contrary to public policy.44

[123] I do not find it necessary to strike down the restriction, nor do I intend
doing so. On a consideration of the evidence and all the relevant considerations
in this matter, I am of the view that it would be contrary to public policy for this
Court to enforce, by an order for the demolition of part of a dwelling, a height
restriction which section 62(1)( b)(i) of the By -law appears to forbid an owners’
association to introduce.

[124] Public policy is informed by the values of the Constitution, and the value
engaged here is the exclusive function of municipal planning vesting in the City.
Enforcement would give the imprimatur of this Court to conduct which the City,
acting within its exclusive competence, has legislated against. My conclusion in
this regard is confined to the enforcement of the restriction against the
respondent in these proceedings. I do not make any finding whether the 2008
Architectural Guidelines, had the applicant relied upon them, would have been
subject to section 62(1)( b)(i), nor upon the question raised but not decided
regarding the effect of the rules not having been approved or certified by the
City, neither having been argued before me.

The enforceability of the rules notwithstanding municipal approval
[125] Assuming the 2016 Architectural Rules to be valid, I turn to whether the
City’s approval of the relaxation, and the issue of final occupation certification,
answers the applicant’s claim that the respondent remains in breach of his
obligations to it.

44 Beadica paras 36, 37 and 58, applying Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC).

[126] As a starting premise, I accept that the applicant’s rules are contractually
binding upon the respondent and are, in principle, enforceable independently of,
and irrespective of, any relaxation granted by the City. The relationship between
a HOA and an owner of property within the estate it manages is contractual in
nature,45 and by electing to purchase property within the Estate the respondent
voluntarily submitted to the applicant’s Constitution and rules, including those
governing height, and agreed to adhere to the applicant’s architectural and other
guidelines.46

[127] The SCA in Mount Edgecombe held that once it is accepted that such
rules are private ones, an argument that the association is thereby usurping the
functions of the recognised authorities, or contravening the provisions of the
relevant statute, cannot be sustained.47

[128] It follows that the fact that the City has approved the amendment
application and issued a final occupation certificate to the respondent does not
override his independent contractual obligation to the applicant, whose rules
may, and frequently do, go further than what the City requires. Indeed, this is
generally the very basis upon which owners in an estate bind themselves
together. An owner may accordingly comply with the City’s requirements and
yet fall foul of the applicant’s own, more stringent, rules.


45 GJ Pienaar and JG Horn Sectional Titles and Other Fragmented Property Schemes 2 ed (2020) at 516 and the
authorities there cited.
46 Pienaar and Horn at 51: The directors or trustees of a homeowners’ association are usually empowered to
make rules, regulations and architectural guidelines binding on all members.
47 Mount Edgecombe para 21. The reference there is to a different statute, but the principle applies analogously.

[129] Compliance with the former is not, by itself, an answer to the applicant’s
claim. Section 39(2)(a) of the By-law expressly provides that an approval under
the By-law does not release anyone from the duty to comply with a requirement
in the constitution of an owners’ association. That is express support for the
conclusion reached here.

[130] This much was, in the end, common cause, the respondent having
withdrawn, through Mr. Ahmen’s letter of 5 August 2019, the earlier contention
that the City was entitled to override the Constitution, subject always, of course,
to the anterior question of validity addressed above.

[131] The applicant’s claim is one for specific performance in the form of an
order compelling the respondent to demolish a portion of the building
constructed by him which exceeds the approved plans and the height restriction
in the 2016 Architectural Rules. It is common cause that the height of the
building does not comply with the approved plans. The applicant contends that
not merely a corner of the roof, but the entire roof slab, exceeds the restriction
by 375mm.

[132] The applicant’s claim rests on the well -established principle that a party
to a binding agreement who is ready and willing to perform his own obligations
is prima facie entitled to demand performance of the other party’s reciprocal
obligations. This position was confirmed by the Appellate Division in Benson v
SA Mutual Life Assurance Society ,48 where the court held that although a court
will, as far as possible, give effect to a plaintiff’s election to claim specific
performance, it has a discretion in a fitting case to refuse to order it and leave
the plaintiff to claim and prove damages.

48 Benson v SA Mutual Life Assurance Society [1985] ZASCA 114; [1986] 2 All SA 30 (A).

[133] That discretion, although it must be exercised judicially, is not confined
to specific types of case s, nor circumscribed by rigid rules, and each case must
be judged in the light of its own circumstances. 49 This passage has been cited
with approval in this division in the context of determining whether it would be
inequitable to hold a party to strict performance of his contract.50

[134] Specific performance will not, however, be granted where compliance
with an order will be impossible to enforce,51 or will be unduly onerous and lead
to undue hardship, or where the order may generate a lengthy dispute as to the
extent of the obligation it imposes.

[135] Of further relevance is the fact that the demolition sought, properly
characterised, is a contractual or private -law remedy rather than a statutory
remedy of the kind contemplated in section 21 of the National Building
Regulations and Building Standards Act 103 of 1977 (the National Building
Act).

[136] This Court is accordingly not compelled to order demolition once non -
compliance is established but retains a true discretion as to the form and extent
of relief, including refusing demolition altogether. It is notable that the applicant
did not suggest otherwise, nor did it ask in the alternative for a lesser remedy . It
seeks an order of demolition of the entire roof slab.


49 Id at 782D–F, where Hefer JA referred to Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) and
cited what De Villiers AJA had said at 378 of that decision.
50 Santos Professional Football Club (Pty) Ltd v Igesund and Another 2003 (5) SA 73 (C) at 80–81.
51 Murray & Roberts Ltd v Alstom S&E Africa (Pty) Ltd [2019] ZAGPJHC 300; 2020 (1) SA 204 (GJ) para 12.

[137] The SCA in BSB International Link CC v Readam South Africa (Pty) Ltd
and Another 52 aptly described the remedy of demolition as ‘draconian’. 53 That
matter was not decided under section 21 of the National Building Act. It was
litigated as a private, neighbour-law claim, the Court holding that section 21 had
no bearing on it. The Court said:

‘In a case such as this a court is possessed of a broad general discretion to be
exercised after affording due consideration to all the relevant circumstances.
Obviously, before granting a partial demolition order a court would have to be
satisfied that the illegality complained of is capable of being addressed by such an
order and that it is practically possible to do so. Depending on the circumstances, this
may require evidence to be given by experts such as engineers and architects to ensure
that the structural integrity and safety of the building are not compromised when
partially demolished.’54

[138] There is no expert evidence before me regarding the effect a partial or
total demolition of the roof would have on the structural integrity and safety of
the respondent’s dwelling, which I consider a relevant factor in the exercise of
my discretion. Further relevant considerations include the degree and cause of
non-compliance, any disproportion between the cost of compliance and the
harm sought to be averted, the conduct of the parties, including conduct
inconsistent with enforcement, delay, and whether an alternative remedy such as
damages would adequately vindicate the applicant’s rights.

[139] A highly relevant factor, pertaining to the City’s approval of the height
relaxation, is that neither the applicant nor Mr . Pillay took any step,

52BSB International Link CC v Readam South Africa (Pty) Ltd and Another [2016] ZASCA 58; 2016 (4) SA 83
(SCA) (BSB).
53BSB para 27.
54 BSB para 29.

notwithstanding their evident unwillingness to consent, to set aside the City’s
contrary and final decision.

[140] The applicant contends that not merely a corner of the roof, but the entire
roof slab, exceeds the restriction by 375mm. The respondent’s evidence is that
the excess affects a small portion of the roof at the furthest north -western
corner, constituting 6,76 per cent of the entire roof area, and that it arose from
the increase in the depth of a single reinforced concrete support beam above the
entertainment area.

[141] The respondent’s evidence is supported by the report of the land surveyor
annexed to his answering affidavit and by the photograph of the completed
corner which accompanied his application for relaxation. This material dispute
cannot be resolved on these papers. It is accordingly the respondent’s version
which I am bound to accept, and it is upon that version that the deviation falls to
be characterised.

[142] The same approach governs several of the further facts upon which I rely.
The respondent’s clear and unambiguous evidence is that the increase in the
depth of the beam was required by the firm constructing the roof slab in order to
keep within safety factors and was not a deliberate departure by him from his
approved plans. This appears from the email of 4 May 2017.

[143] The respondent averred that Mr. Di Leva liaised with Mr. Syfret and held
site meetings with him concerning the increase, and that the cost of the remedial
work exceeds R1,4 million. No contrary valuation or estimate was put up by the
applicant.

[144] A further material fact which emerged from the respondent’s evidence is
that the increased height does not impair the view or the use and enjoyment of
any other property in the Estate. This is fortified by the finding of the City’s
building inspector, Mr. Muller, following the inspection in loco of 8 November
2017, which the applicant does not gainsay.

[145] The applicant enjoined the court, in addition, to have regard to the
hardship said to have been suffered by Mr . Pillay. Mr. Pillay is not a party to
these proceedings. What is before me is his letter of objection of 26 May 2017
and the fact of his unsuccessful appeal to the City. To the extent that the
applicant’s assertion of hardship goes beyond that material and is disputed by
the respondent, it is not a matter upon which I am able to make a finding in the
applicant’s favour on motion.

[146] Having carefully considered the facts of this matter, and in particular that
the deviation is so minor as to aptly be described as de minimis , that the
respondent increased the height contrary to the approved plans on account of
safety and structural integrity concerns rather than in blatant disregard of the
applicant’s rules, and the marked disproportion between the remedy sought and
the harm it seeks to address, the remedial cost exceeding R1,4 million (now
significantly more undoubtedly), I am not inclined to exercise my discretion in
favour of ordering the demolition sought.

[147] A further relevant consideration is that the City approved the relaxation
and dismissed Mr. Pillay’s appeal. While I accept that this is not determinative
of the contractual question between the parties, it is nonetheless a material

factor militating against the draconian remedy of demolition. It is further
apposite that the applicant’s own architectural committee resolved on appeal to
approve the relaxation subject only to Mr . Pillay’s consent, in which
circumstances it hardly seems appropriate to impose the harshest sanction
available.

[148] Finally, the applicant delayed in launching the demolition application
until 2019, in respect of a house which, to its knowledge, had been occupied by
the respondent since 2017 . T his too weighs against the order sought, even
allowing for the applicant’s efforts in the interim to resolve the dispute.

[149] I have considered the argument advanced on the applicant’s behalf that
the respondent’s conduct ought not to be countenanced, in particular, that he
provided an outdated height certificate, sought to by -pass the applicant by
applying to the City directly, and that Mr . Pillay’s consent was in fact never
obtained, together with the submission that the respondent’s position is entirely
self-created, and the submission that this Court should not become ‘supine and
spineless in the face of a litigant who has defied his obligations ’.55 I am not
persuaded, however, that these factors, properly weighed against the
considerations set out above, justify the order sought, particularly where the
applicant did not ask, in the alternative, for any lesser remedy.

[150] For these reasons, the demolition application must fail. There is no reason
why costs should not follow the result.

Evaluation - the penalties application

55See Industrial & Mercantile Corporation v Anastassiou Brothers 1973 (2) SA 601 (W) at 609.

[151] For purposes of the penalties application, it is undisputed that the
respondent took occupation of the property during December 2017 without a
certificate of occupancy having been issued by the applicant.

[152] Regarding the applicant’s claim for outstanding levies, the respondent
tendered payment in full of the arrear levies claimed a few days before the
hearing. The applicant contends that it remains entitled to costs in respect of that
relief.

[153] The applicant claims penalties levied against the respondent at the rate of
R700 per day, amounting to R3 695 843,28, together with interest at 26% per
annum, compounded and debited monthly in arrears to date of payment. 56 The
penalty of R700 per day equates to approximately R21,000 per month, which is
more than ten times the ordinary levy of R2,000 per month

[154] The applicant initially also sought payment of arrear levies, but the
respondent tendered payment of the full amount outstanding a few days before
the hearing. The applicant contends that it remains entitled to its costs in respect
of that relief.

[155] The applicant relies on the powers conferred on its committee by clause
14 of the Constitution, which vests the management and administration of the
applicant in the committee, empowered to exercise all the applicant’s powers

56 Calculated at 18 November 2025, the date on which the certificate of balance was signed by Mr Orlandi, the
applicant’s portfolio manager. The notice of motion claims the lesser sum of R1 229 226,63, the balance being
sought under the rubric of further and/or alternative relief. The figures do not appear to tie up. 3 314 days at
R700 is R2 319 800. Occupation from December 2017 to the date of the certificate of balance on 18 November
2025 is some 2 900 days. The composition of R3 695 843,28, and how much of it is interest is unclear. In terms
of the notice of motion the applicant claims R1 229 226,63. An award of some three times the sum claimed will

not ordinarily rest on a general prayer for alternative relief. Paragraph 115 presents the figure of about R21 000
a month as a compounding rate, whereas footnote 51 derives it from the daily penalty.

and, without limiting the generality of that power, to ‘propose revisions to and
enforce the Constitution and Rules’ (clause 14.2).

[156] Clause 2.5.5 of the 2016 Conduct Rules provides: ‘[n]obody may move
into a dwelling without an occupation certificate issued by the City of Cape
Town. The City of Cape Town will not issue an occupation certificate unless the
COMMITTEE has issued an occupancy clearance certificate which is to be
handed in with all other documents required by the City of Cape Town’.

[157] Clause 2.5.6 provides that:

‘A fine of R700,00 per day will be issued until an occupancy clearance certificate is
issued by the COMMITTEE if the dwelling is occupied.’

[158] A materially identical clause 2.5.5 of the 2019 Conduct Rules was relied
upon in the applicant’s founding papers.

[159] The question that remains is whether clause 2.5.6 permits the imposition
of the daily penalty notwithstanding the respondent’s possession of a City
occupation certificate. On the applicant’s construction, the penalty is payable
irrespective of the City certificate, for so long as the applicant’s own clearance
certificate has not been issued . On the respondent’s construction, occupation on
the strength of a City certificate is expressly sanctioned by clause 2.5.5, and the
fine attaches only to occupation without one.

[160] On the applicant’s construction the requirement in clause 2.5.5 that the
City will not issue its certificate unless the committee has issued clearance
makes the committee’s certificate a precondition of the City’s, with the result

that clause 2.5.6 ties the fine to the committee’s certificate alone. That
contention falls to be tested against the language, context and purpose of the
clauses read together.

[161] This falls to be resolved on the well -known unitary approach to
interpretation set out in Endumeni,57 where Wallis JA held that interpretation is a
single, integrated exercise. A court must consider the language of the provision,
the context in which it appears, and its apparent purpose together from the
outset. Courts no longer read the text in isolation first and only resort to context
if ambiguity arises.

[162] As Mr. Bothma submitted, correctly in my view, the interpretive exercise
requires this Court to determine whether, notwithstanding that occupation is
permitted upon possession of a City occupation certificate, the applicant is
nevertheless entitled to impose penalty levies on account of its own clearance
certificate not having been issued.
[163] Applying the unitary approach, I prefer the respondent’s construction.
The opening sentence of clause 2.5.5 is the prohibitory statement: ‘ [n]obody
may move into a dwelling without an occupation certificate issued by the City
of Cape Town’. The corollary of that prohibition is that occupation is permitted
upon receipt of such a certificate.

[164] The fact that the applicant will not issue its own certificate does not
detract from the permission thereby granted. This reading is borne out by
context. In clause 2.5.5 , the applicant subordinates its own certificate to that of
the City, such that a member is not permitted to occupy a dwelling on the

57 At paras 18 and 19.

strength of an HOA certificate alone, whereas occupation is explicitly
sanctioned on the strength of a City certificate.

[165] It is also borne out on a purposive interpretation. The evident object of
the clause is to avoid unlawful occupation of dwellings, and it must have been
apparent to the drafters that a City occupation certificate is the relevant
prerequisite for occupation.

[166] The applicant’s contrary construction, that clause 2.5.6 applies
irrespective of whether the City has issued a certificate, sits uneasily with that
same subordination in clause 2.5.5 and would produce the unbusinesslike result
that occupation lawfully sanctioned by the local authority nonetheless triggers
an open -ended and, on the facts of this matter, very substantial and unlimited
daily penalty.

[167] I have carefully considered the applicant’s contextual argument, drawn
from clauses 2.5.7 to 2.5.9 (dealing with external finishes and landscaping), that
its issuing of occupation certificates addresses only its own requirements and is
indifferent to the City’s separate concerns . However, that argument does not in
my view displace the correct and more contextually coherent reading of clause
2.5.5 itself.

[168] I am further of the view that the temporary certificate of 30 November
2017 meets the requirement imposed in terms of clause 2.5.5 for the period
from the date the respondent took occupation to 4 September 2018. The final
occupation certificate issued by the City on 4 September 2018 covers the
balance of the period claimed. It follows that the respondent held an occupation

certificate issued by the City throughout the period in respect of which the
penalty is claimed.

[169] The penalties application accordingly falls to be dismissed.

[170] Bearing in mind the jurisprudence of our appellate courts namely that,
even if a single issue may dispose of a matter, it is desirable for a court to
determine all of the issues before it, I shall consider the issue of whether the
penalty, if exigible, would fall to be reduced in terms of section 3 of the
Penalties Act, and if so, to what extent.58

[171] Section 1(1) of the Penalties Act provides that a stipulation whereby a
person is, in respect of an act or omission in conflict with a contractual
obligation, liable to pay a sum of money or to deliver or perform anything for
the benefit of a creditor, either by way of penalty or as liquidated damages, shall
be capable of being enforced in any competent court. 59 Section 1 accordingly
affirms pacta sunt servanda , and reduction under section 3 is an equitable
exception to it.

[172] Section 3 provides:

‘If upon the hearing of a claim for a penalty, it appears to the court that such penalty is
out of proportion to the prejudice suffered by the creditor by reason of the act or
omission in respect of which the penalty was stipulated, the court may reduce the

58 S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) [2002]
ZACC 22; 2002 (6) SA 642 (CC) para 21; Maharaj and Others v Mandag Centre of Investigative Journalism
NPC and Others [2017] ZASCA 138; 2018 (1) SA 471 (SCA) para 26; Minister of Home Affairs and Others v
Somali Association of South Africa and Another [2015] ZASCA 35; 2015 (3) SA 545 (SCA) para 18.
59 Section 1(1) of the Conventional Penalties Act 15 of 1962. Steinberg v Lazard [2005] ZAGPHC 363; 20/03/01
(18 February 2005) at p 6.

penalty to such extent as it may consider equitable in the circumstances: Provided that
in determining the extent of such prejudice the court shall take into consideration not
only the creditor's proprietary interest, but every other rightful interest which may be
affected by the act or omission in question.’

[173] It is well established that the penalty claimed is a penalty stipulation as
contemplated in section 1 of the Penalties Act, and that reliance on section 3
need not be specially pleaded, this Court being entitled to raise it mero motu
where it appears e x facie the pleadings, provided the issue is fully canvassed in
evidence and argument. 60 It is likewise well established that financial damages
are not the sole criterion of prejudice.

[174] The onus rests on the debtor, here, the respondent, to prove that the
penalty is out of proportion to the prejudice suffered.61

[175] The facts upon which the reduction rests are not in dispute. The applicant
does not assert that it has suffered any financial prejudice. The rate at which the
penalty was levied, the amount of the ordinary monthly levy, the number of
erven in the Estate, the date upon which the respondent took occupation, the
dates upon which the City issued its temporary and final occupation certificates,
and the fact that the arrear levies have now been paid in full, are all either
common cause or appear from the applicant’s own papers.

[176] Moreover, the onus under section 3 may be discharged without the
respondent as the debtor leading evidence at all. The nature of this matter, and
those facts or circumstances which are not in dispute, or which may safely be

60 Plumbago Financial Services (Pty) Ltd t/a Toshiba Rentals v Janap Joseph t/a Project Finance [2007]
ZAWCHC 35; 2008 (3) SA 47 (C) (Plumbago) para 18.
61 Steinberg v Lazard [2006] ZASCA 55; 2006 (5) SA 42 (SCA) para 7.

inferred, may themselves reveal a disproportion entitling a court to decline to
award the full amount claimed.62 That is the position in casu.

[177] This Court has a discretion, conferred by the Penalties Act, to reduce
penalties found to be inequitable. 63 Prejudice, for these purposes, extends
beyond pecuniary loss . As Snyman J explained in Van Staden v Central South
African Lands and Mines ,64 ‘everything that can reasonably be considered to
harm or hurt, or be calculated to harm or hurt a creditor in his property, his
person, his reputation, his work, his activities, his convenience, his mind, or in
any way whatever interferes with his rightful interests as a result of the act or
omission of the debtor, must, if it is brought to the notice of the Court, be taken
into account’, the test being a value judgment, made as at the date of hearing.65

[178] In Murcia Lands CC v Erinvale Country Estate Homeowners Association
(Murcia Lands) ,66 Budlender AJ explained that the enquiry proceeds in three
stages: first, whether the penalty is out of proportion to the prejudice suffered by
reason of the breach; and second, if so, whether it would be equitable to reduce
it; and third, the extent of the reduction.


62 Chrysafis v Katsapas 1988 (4) SA 818 (A) at 828I; Smit v Bester 1977 (4) SA 937 (A) at 941A –943A;
National Sorghum Breweries (Pty) Ltd t/a Vivo African Breweries v International Liquor Distributors (Pty) Ltd
[2000] ZASCA 70; 2001 (2) SA 232 (SCA) para 8; and see De Wet NO and Others v Water’ s Edge Home
Owners Association (A110/2022) [2022] ZAWCHC 155 para 23.
63 Tremendous Property Investment 8 CC and Another v Kenntner Wilderness Dune Development (Pty) Ltd
(2433/2007) [2012] ZAWCHC 104 (7 February 2012) para 28.
64Van Staden v Central South African Lands and Mines 1969 (4) SA 349 (W) ( Van Staden), cited with approval
in this division in Courtis Rutherford and Sons CC v Sasfin (Pty) Ltd 1999 JDR 0490 (C) at 13.
65 Van Staden at 352G–353B.

65 Van Staden at 352G–353B.
66Murcia Lands CC v Erinvale Country Estate Homeowners Association [2004] ZAWCHC 12; [2004] 4 All SA
656 (C) para 14.

[179] In Western Credit Bank Ltd v Kajee ,67 the court held that ‘out of
proportion’ does not require a penalty to be outrageously excessive before a
court will intervene:

‘What is contemplated ... is that the penalty is to be reduced if it has no relation to the
prejudice, if it is markedly, not infinitesimally, beyond the prejudice, if the excess is
such that it would be unfair to the debtor not to reduce penalty; but otherwise, if the
amount of the penalty approximates that of the prejudice, the penalty should be
[awarded].’

[180] In Plumbago, Bozalek J in this division held that the best method of
determining whether a penalty was excessive is to compare the creditor’s
position had the debtor not defaulted with its position should it obtain judgment
for the full sum sought.68

[181] In this matter, there is no evidence that the applicant is financially worse
off than it would have been had the respondent obtained the occupation
certificate, as envisaged in Plumbago.

[182] The applicant does not assert that it has suffered any financial prejudice
as a result of the respondent’s breach. Its case rests substantially on the
proposition that, were every owner to disregard the applicant’s rules as the
respondent is said to have done, the basis of the applicant’s existence would fall
away. That is a rightful interest cognisable under Van Staden,69 but it speaks to
the harm of rules being broken in general rather than to any harm actually
suffered by the applicant on the facts of this case.

67 Western Credit Bank Ltd v Kajee 1967 (4) SA 386 (N) at 391B–D.
68 Plumbago para 31.
69 Van Staden at 352H.

[183] There is no evidence of an increase in similar infractions following the
respondent’s breach, nor of any actual erosion of the applicant’s authority. There
is, moreover, no evidence that the minor height infraction in issue has materially
impacted the rights or interests of the applicant or its members. This is not a
flagrant breach of the kind committed by an owner who builds an additional
floor materially impacting a neighbour’s views or use and enjoyment of his
property.
[184] Weighed against this is a penalty of R3 695 843,28, compounding at 26%
per annum, a monthly rate of approximately R21 000, against an ordinary
monthly levy in the Estate of approximately R2 000.70

[185] Comparing, as I am enjoined to do, the applicant’s position had the
respondent obtained a clearance certificate promptly with its position upon
judgment for the full amount claimed, the disproportion is, in my view, stark,
and I agree with the respondent that the penalty bears no rational relationship to
any prejudice actually established.

[186] This must, however, be weighed against matters properly militating
against the respondent, namely that he proceeded to occupy without the
requisite certificate, that he did not apply to regularise the building work until
directed to do so by Nuku J, that he is said to have provided an outdated height
certificate, and that he by -passed the applicant in favour of the City rather than
pursuing further engagement with it.


70 Calculated at R700 per day over 3 314 days, which, at approximately R21 000 per month, is roughly ten times
an ordinary monthly levy of R2 000.

[187] Two of those matters require qualification. The assertion that the
respondent furnished an outdated height certificate is disputed by him, his
evidence being that Mr. Di Leva delivered the certificate requested on 29 March
2017 and delivered an updated certificate, together with a natural ground level
survey, on 3 May 2017. The characterisation of his approach to the City as a by -
passing of the applicant is likewise disputed, his evidence being that he applied
to the City after the applicant’s committee had resolved, on 30 November 2017,
not to issue him with an occupancy certificate. Neither dispute can be resolved
on these papers, and the respondent’s allegations in t his regard must be
accepted.

[188] What is common cause is that the respondent took occupation in
December 2017 without a certificate issued by the applicant’s committee, and
that he did not make formal application to the applicant for relaxation of the
height restriction until 13 October 2021, after the matter had been postponed by
Nuku J for that purpose.

[189] These factors bear upon the extent, rather than the existence, of any
reduction. I should add that, the applicant having by the date of hearing
recovered the underlying arrear levies in full, there can no longer be any
suggestion that the penalty is compensating for irrecoverable levy arrears.

[190] Having regard to all of these considerations, I am satisfied that, to the
extent any penalty would otherwise be payable, the penalty claimed is
disproportionate to the prejudice suffered by the applicant, and that it is
equitable that such penalty should be substantially reduced under section 3 of
the Penalties Act.

[191] I accept, as was the case in Murcia Lands, that the applicant had a rightful
interest in ensuring compliance with the terms of the contract. It was entitled to
impose a penalty clause to compel the homeowners to carry out their obligations
under the contract by providing appropriate consequences should they default.71

[192] The question which remains to be determined is to what extent such a
penalty falls to be reduced.

[193] Any prejudice suffered by Mr . Pillay cannot be taken into account as
prejudice to the appli cant. In terms of s ection 3 , the enquiry relates to the
prejudice suffered by the applicant. The applicant sues in its own right, and the
prejudice to Mr. Pillay, who is not a party to these proceedings, bears no
relevance.

[194] In Murcia Lands, Budlender AJ found that the question whether a penalty
is out of proportion may be assessed in three ways. By looking at comparable
situations in which the desired result was achieved, by looking at the size of the
penalty, and of the penalties in general, in relation to the income and
expenditure of the creditor, and by exercising one ’s sense of fairness and
justice.72
[195] In my view, on the facts of this case the third of these is apposite. In the
majority of the decisions involving penalties, they concerned a penalty for
failure to build within time, expressed as a multiple of the monthly levy. The
penalty in issue here is of a different kind, as it is a fixed daily amount rather
than a multiple of the levy.


71 See Murcia Lands at para 24 and Western Bank Ltd v Meyer, De Waal, Swart & Another 1973 (4) SA 695 (T)
at 699H.
72 Murcia Lands para 37.

[196] A further consideration is the nature of the prejudice from the breach in
question. The prejudice which the Court took into consideration in Murcia
Lands and De Wet N.O. and Others v Water 's Edge Home Association; De Kock
N.O. and Another v Water's Edge Home Association73 was the harm caused by
unbuilt or half -built erven: noise, dust, traffic, damage to roads and verges,
security risk from building activity, the aesthetic and amenity value to
purchasers of knowing that building will end within a defined period, and the
deterrence of speculative plot -holding. Occupation of a finished house causes
no building nuisance and, if anything, reduces rather than increases the security
risk of an unoccupied structure.

[197] The applicant’s rightful interest in members not simply helping
themselves to occupation in defiance of its rules is an important consideration,
but it is an interest of a lesser order than the one which sustained the penalties in
the decisions to which I have referred.

[198] A further and final consideration is that a penalty which runs until the
creditor issues a certificate is open-ended in a way that a building penalty is not.
A penalty for failure to build is brought to an end by the debtor ’s own
performance.
[199] A penalty for occupying without a certificate which the creditor declines
to issue cannot be brought to an end by the debtor at all, save by vacating his
home. Put differently, the magnitude of a penalty such as in the present matter is
a function of the applicant’s inaction as much as of the respondent’s default.
This impacts both on whether the penalty is out of proportion and on what is
equitable.


73 De Wet N.O. and Others v Water 's Edge Home Association; De Kock N.O. and Another
v Water’s Edge Home Association (A110/2022) [2022] ZAWCHC 155 (24 August 2022) para 29.

[200] In conclusion, in my view the most equitable basis upon which to reduce
the penalty in casu is to reduce the daily penalty to a more reasonable amount of
R150 per day, and to limit the duration of the penalty to the date upon which the
applicant itself upheld the respondent's internal appeal and granted the
relaxation subject only to Mr. Pillay’s consent, that is 14 February 2022, as to
my mind at this date the continued withholding of the applicant’s occupancy
certificate ceased to serve any discernible interest. On my estimate this would
amount to 1,536 days. Accordingly, t he total penalty I would have ordered
would be R230,400.74

[201] The interest applicable would run on the reduced sum on ly. I emphasise
that this finding is made in the alternative only, against the possibility that my
construction of clauses 2.5.5 and 2.5.6 is held to be wrong. It does not form part
of the order which I make.

[202] For the reasons set out in this judgment , the demolition application is
dismissed.

[203] In the penalties application , I find, on a proper construction of clauses
2.5.5 and 2.5.6 of the 2016 Conduct Rules, that no penalty is payable in respect
of any period during which the respondent held an occupation certificate issued
by the City, and that he held such a certificate throughout the period claimed.

[204] In the alternative and on the basis that it is not necessary to the order I
make, that the enforcement of the height restriction against the respondent by
way of an order for demolition would be contrary to public policy . I decline to

74 If the date upon which the respondent took occupation is taken to be 1 December 2017 as the exact date does
not clearly appear from the record.

declare that restriction void. I n the alternative, had a penalty been exigible , it
would have fallen to be reduced under section 3 of the Penalties Act.

Costs
[205] It remains to say something about the manner in which this litigation has
been conducted, since it bears upon costs.

[206] The applicant founded both applications upon the 2019 Conduct Rules.
That those rules could not govern conduct occurring in 2017 was pertinently
raised by the respondent in his answering affidavit deposed to on 6 July 2020.
The applicant did not put the 2016 Conduct Rules before this Court until Mr .
Orlandi’s affidavit of 13 January 2026, some five and a half years later, and then
upon the explanation that the error had come to light during preparation of its
heads of argument.

[207] That explanation cannot be accepted. The applicant also declined the
respondent’s proposals of October 2019 for mediation and for an inspection in
loco, for reasons which do not appear from the record.

[208] In the demolition application , there is no reason why costs should not
follow the result. The same applies to the penalties application. The costs of the
consolidation application were reserved by Mangcu -Lockwood J on 5 August
2024 to be costs in the cause, and they follow the same course.

[209] In my view , the respondent ought to bear the costs occasioned by the
applicant's claim for arrear levies, which the respondent tendered in full shortly
before the hearing.

[210] Having taken into account the complexity of the matter and the
importance to the parties, I am of the view that costs of counsel on Scale B is
appropriate

Order
[211] For all the reasons set out in this judgment, the following order shall
issue:

1.The application under case number 17258/2019 (the demolition
application) is dismissed.

2. The application under case number 8985/2022 (the penalties application)
is dismissed.

4. The applicant is ordered to pay the respondent’s costs in both applications,
including the costs reserved in the application for consolidation
determined by Mangcu-Lockwood J on 5 August 2024, costs of counsel to
be taxed on Scale B.



5. The costs occasioned by the applicant in respect of its claim for arrear
levies shall be borne by the respondent.

_________________________

M HOLDERNESS
JUDGE OF THE HIGH
COURT


Appearances
Applicant: Adv HN de Wet and Adv A Brink
Instructed by: Smith Tabata Buchanan Boyes & Biccari Bollo Mariano
Inc. (BBM LAW)
Respondents: Adv. PS Bothma and Adv L Matiso
Instructed by: Ahmen & Hamman Attorneys