THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 974/2015
In the matter between:

PETER GEES                                                                               APPELLANT

and

THE PROVINCIAL MINISTER OF CULTURAL
AFFAIRS AND SPORT, WESTERN CAPE              FIRST RESPONDENT
THE CHAIRPERSON, INDEPENDENT
APPEAL TRIBUNAL                                             SECOND RESPONDENT
HERITAGE WESTERN CAPE                                THIRD RESPONDENT
THE CITY OF CAPE TOWN

FOURTH RESPONDENT
CITY BOWL RATEPAYERS’ AND
RESIDENTS’ ASSOCIATION

FIFTH RESPONDENT

Neutral citation: Gees v The Provincial Minister of Cultural Affairs and Sport
(974/2015) [2015] ZASCA 136 (29 September 2016)

Coram:
Maya DP, Bosielo and Seriti JJA and Fourie and Dlodlo AJJA
Heard:
15 September 2016
Delivered: 29 September 2016
Summary: Provincial heritage resources authority granting a permit in terms
of s 34 of the National Heritage Resources Act 25 of 1999 for the demolition of
a structure older than 60 years situated on a property with no formal heritage
status: in so doing conditions were imposed controlling future development on
the property: held that such conditions were lawfully imposed.

_______________________________________________________________

ORDER
________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town
(Weinkove AJ sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel.
________________________________________________________________
JUDGMENT
________________________________________________________________

Fourie AJA (Maya DP, Bosielo and Seriti JJA and Dlodlo AJA concurring)

[1] The issue in this appeal is whether the National Heritage Resources Act
25 of 1999 (the Act) authorises a provincial heritage resources authority, when
granting a permit for the demolition of an entire structure which is older than 60
years, situated on a property with no formal heritage status, may lawfully
impose conditions controlling future development on the property.

[2] The appellant is the registered owner of all the sections in a sectional title
scheme comprising the land and a small block of flats (the structure) on Erf
1444, Vredehoek, Cape Town (Erf 1444), situated at 24 Davenport Road,
Vredehoek. The appellant intends to redevelop Erf 1444 and this requires the
demolition of the structure. As the structure is more than 60 years old, s 34(1)
of the Act prohibits its demolition without a permit issued by the third
respondent, Heritage Western Cape (HWC).

[3] The appellant’s application for a demolition permit was considered by
HWC’s Built Environmental and Landscape Permit Committee at a meeting on
24 July 2013, and was refused. The appellant appealed to HWC’s appeals
committee, which refused the appeal on 18 September 2013.

[4] The appellant then lodged an appeal with the first respondent, the
Provincial Minister of Cultural Affairs and Sport, Western Cape (the MEC). On
21 January 2015, the appeal tribunal appointed by the MEC in terms of s 49(2)
of the Act, upheld the appeal and granted the demolition permit, subject to the
following conditions:
‘(a)
that the new development on the site shall not exceed the town-planning envelope of
the existing building;
(b)
that the materials used for the façade of the new building are in keeping with the
existing building;
(c)
that building plans for the new structure are submitted to Heritage Western Cape for
its approval prior to any work commencing on site.’

[5] Aggrieved by the imposition of these conditions by the appeal tribunal,
the appellant launched an application in terms of the provisions of the
Promotion of Administrative Justice Act 3 of 2000, in the Western Cape
Division of the High Court, Cape Town for the review of the appeal tribunal’s
decision and the setting aside of the conditions attaching thereto, alternatively
for an order directing the MEC to reconsider the appellant’s appeal. The
application was opposed by the MEC while the City of Cape Town abided the
decision of the court, but filed an affidavit providing the parties and the court
with relevant information, particularly with regard to the proposed designation
of a heritage protection overlay zone for the area including Vredehoek.

[6] In the event, the matter was heard by Weinkove AJ who dismissed the
application with costs, but granted the appellant leave to appeal to this court.
The MEC opposes the appeal. The remainder of the parties abide the decision
of the court.

[7] The essence of the appellant’s case is that the imposition of the
conditions in the demolition permit by the appeal tribunal was not authorised by
s 48(2) of the Act and thus ultra vires HWC’s powers (via the tribunal’s ruling).
It is common cause that an entity such as HWC exercising public power is
confined to exercising only such powers as are lawfully conferred upon it ─ this
is the principle of legality. See Fedsure Life Assurance Ltd & others v Greater
Johannesburg Transitional Metropolitan Council & others 1999 (1) SA 374
(CC); 1998 (12) BCLR 1458 (CC) para 56; Pharmaceutical Manufacturers
Association of SA & another: In re Ex Parte President of the Republic of South
Africa & others 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) para 50;
Qualidental Laboratories (Pty) Ltd v Heritage Western Cape & another 2008
(3) SA 160 (SCA) para 9 and Vorster & another v Department of Economic
Development, Environment and Tourism, Limpopo Province & others 2006 (5)
SA 291 (T) paras 17 and 18.

[8] It is accordingly necessary to consider the imposition of the conditions in
the demolition permit by the appeal tribunal against the background of the Act.
As explained in Qualidental Laboratories, para 10, an overview of the Act
shows that its overarching objective is the identification, protection,
preservation and management of heritage resources for posterity. This objective
also finds resonance in s 24(b) of the Constitution. A heritage resource is
defined in s 1 of the Act as ‘any place or object of cultural significance’.
Cultural significance is defined as meaning ‘aesthetic, architectural, historical,

scientific, social, spiritual, linguistic or technological value or significance’. A
place is defined as including a site, area or region; a building or group of
buildings and other structures or groups of structures; and open space, including
a public square, street or park. In relation to the management of a place, a place
is defined as including its immediate surroundings.

[9] In terms of s 6 of the Act, the South African Heritage Resources Agency
(SAHRA) and the provincial heritage resources authorities are empowered to
prescribe principles for the management of heritage resources and to publish for
general information policy relating to heritage resources management. Section 7
provides for heritage assessment criteria and grading. A three-tier system for
heritage resources management is prescribed. National level functions are the
responsibility of SAHRA, while provincial level functions are the responsibility
of provincial heritage authorities. Local level functions are the responsibility of
local authorities. In s 25 of the Act the general powers and duties of heritage
authorities are set out. These are wide-ranging powers and duties enabling and
obliging heritage authorities to comply with their conservation mandate in
terms of the Act.

[10] The formal protection provisions of the Act are to be found in part 1 of
chapter II (ss 27-33). Section 27 deals with national and provincial heritage
sites, while s 28 deals with protected areas. Section 29 provides for the
provisional protection of protected areas and heritage resources by SAHRA and
provincial heritage authorities, for a maximum period of two years, while local
authorities are authorised to provisionally protect, for a maximum period of
three months, any place which it considers to be conservation-worthy.

[11] Section 30 of the Act requires a provincial heritage authority to compile
and maintain a heritage register listing the heritage resources in the province
which it considers to be conservation-worthy. In terms of s 30(11)(a), the
special consent of the local authority is required for any alteration to or
development affecting a place listed in the heritage register. Section 31 allows
for the designation by planning authorities (including municipalities) and in
certain circumstances provincial heritage authorities, of heritage areas to protect
any place of environmental or cultural interest.

[12] Part 2 of chapter II of the Act (ss 33-38) deals with general protection
provisions, of which s 34(1) is of importance in the adjudication of this matter.
It reads as follows:
‘No person may alter or demolish any structure or part of a structure which is older than 60
years without a permit issued by the relevant provincial heritage resources authority.’
In terms of s 34(2), within three months of the refusal of the provincial heritage
resources authority to issue a permit, consideration must be given to the
protection of the place concerned in terms of the formal designations provided
for in part 1 of chapter II.

[13] Finally, for purposes of this matter, reference must be made to s 48 of the
Act, which falls within chapter III of the Act, headed ‘General Provisions’.
Subsection (2) provides as follows:
‘On application by any person in the manner prescribed under subsection (1), a heritage
resources authority may in its discretion issue to such a person a permit to perform such
actions at such time and subject to such terms, conditions and restrictions or directions as
may be specified in the permit, including a condition ─
(a)
that the applicant give security in such form and such amount determined by the
heritage resources authority concerned, having regard to the nature and extent of the work
referred to in the permit, to ensure the satisfactory completion of such work or the curation of
objects and material recovered during the course of the work; or

(b)
providing for the recycling or deposit in a materials bank of historical building
materials; or
(c)
stipulating that design proposals be revised; or
(d)
regarding the qualifications and expertise required to perform the actions for which
the permit is issued.’

[14] As the structure on Erf 1444 is more than 60 years old, its demolition is
not permitted unless a permit has been issued by HWC in terms of s 48(2) of
the Act. This is the demolition permit which forms the subject matter of the
appeal.

[15] It is common cause that: neither the structure nor Erf 1444 is a declared
national or provincial heritage site as contemplated in s 27 of the Act; neither of
them enjoy provisional protection in terms of s 29; nor is either of them listed in
a heritage register in terms of s 30 or declared as a heritage object in terms of s
32. Furthermore, Erf 1444 does not fall within a protected area as contemplated
in s 28 of the Act, nor within a heritage area as contemplated in s 31. While
certain areas in Vredehoek fall within a heritage protection overlay zone
(HPOZ) in terms of the City’s zoning scheme regulations, Erf 1444 does not.
However, as pointed out in the affidavit filed by the City of Cape Town, it is
currently in the process of conducting a heritage survey of Vredehoek with the
purpose of rendering the area in which Erf 1444 is situated subject to the
HPOZ.

[16] The City has also graded Erf 1444 a proposed IIIC, as it is regarded as
being of significance within its context of a well-preserved, coherent art deco
streetscape spanning both sides of Davenport Road. In fact, the City has
expressed the view that the large concentration of art deco buildings in the area
is probably unique in the South African context and that Davenport Road is the

core of the art deco area of Vredehoek. I should add that the main concern of
most parties who made submissions to the heritage authorities opposing the
demolition of the structure, was that the character of Vredehoek and this
particular street should be preserved.

[17]  In considering the appellant’s submission that the conditions imposed in
the demolition permit are ultra vires the provisions of s 48(2) of the Act, it is
immediately apparent that the submission flies in the face of the wide scope of
application of s 48(2). As recorded earlier, the subsection confers a discretion
upon a heritage authority to issue a permit ‘subject to such terms, conditions
and restrictions or directions as may be specified in the permit’, including the
conditions in paras (a) to (d) thereof. The word ‘including’ in the context used
in s 48(2), is a word of enlargement, not of limitation. The conditions which
may be imposed are thus not confined to those set out in paras (a) to (d) of s
48(2), but may include any appropriate condition. See Dibowitz v
Commissioner for Inland Revenue 1952 (1) SA 55 (A) at 61B-D. Needless to
say, any condition so imposed has to be a lawful condition, ie imposed by the
relevant heritage resources authority exercising a power lawfully conferred
upon it.

[18] What the appellant contends for is a construction of s 48(2) that limits its
wide scope of application in the event of the granting of a permit for the
demolition of a structure which enjoys no formal heritage protection. One may
ask why, if this was the legislature’s intention, it had not been conveyed by
curtailing the wide ambit of s 48(2) in such circumstances. This could easily
have been done and the failure of the legislature to do so necessarily points to a
contrary intention. Therefore, on the plain wording of s 48(2) the appeal
tribunal had a wide discretion to impose terms, conditions, restrictions or

directions in the permit. What remains, is to determine whether the appeal
tribunal could lawfully have imposed the disputed conditions in the demolition
permit. Put differently, were the conditions imposed by the appeal tribunal ultra
vires the Act?

[19] As recorded earlier, it is common cause that, although the structure on
Erf 1444 is not worthy of protection, the surrounding area is. The City of Cape
Town regards the area as conservation-worthy and is in the process of formally
protecting it by incorporation in the City’s proposed HPOZ for the area of
Vredehoek. The significance of Erf 1444 in the context of its surrounding area,
was described as follows by the appeal tribunal:
‘Despite the building not falling within a Heritage Protection Overlay Zone, the art deco area
of Vredehoek is accepted by the heritage fraternity as significant and worthy of being
declared a conservation area. In broad terms and without referring to the boundaries of the art
deco area, the significance of the area is sufficient to warrant protective measures.’

[20] It is important to note that the significance of Erf 1444 within its
surrounding area was also acknowledged by Mr C Snelling, the heritage
consultant who prepared the ‘Statement of Significance’ which accompanied
the appellant’s application for the demolition permit. Mr Snelling referred to
‘. . . the richer art deco/modernist blocks of flats which are common in both the street on
which the property is located and wider area  . . . .’, and emphasised that:
‘. . . the structure does sit comfortably within its environment which is itself typical of the
wider Vredehoek area which is noted for the art deco qualities of the various blocks of flats
. . . and the eclectic mix of residential buildings which although invariably are of a simple
box and hipped roof nature display variously art deco, Cape Dutch revival and arts and crafts
qualities.’

[21] The significance of the IIIC grading of Erf 1444 was recognised by Mr A
C Lillie, the heritage consultant who deposed to the appellant’s founding
affidavit, as follows:
‘. . . grade IIIC heritage resources do not have intrinsic merit ─ their significance derives
from their contribution to the character of significance of their surrounding areas.’

[22] It bears emphasising that a ‘place’ is defined in s 1 of the Act as
including a street as well as the immediate surroundings of a place.
Furthermore, in terms of s 3(1) of the Act those heritage resources of South
Africa which are of cultural significance or other special value for the present
community and future generations, must be considered part of the national
estate and fall within the sphere of operations of heritage resources authorities.
In terms of s 3(2) the national estate may include places, buildings, structures
and equipment of cultural significance, as well as places which are associated
with living heritage. Section 3(3) of the Act emphasises that a place is to be
considered part of the national estate if it has cultural significance or other
special value because of its importance in exhibiting particular aesthetic
characteristics valued by a community or a cultural group.

[23] In terms of s 5(1) of the Act, all heritage resources authorities performing
functions and exercising powers in terms of the Act for the management of
heritage resources, must recognise, inter alia, that heritage resources have
lasting value in their own right, and that they are valuable, finite, non-renewable
and irreplaceable, and must be carefully managed to ensure their survival. In the
present context, the relevant heritage resources are not confined to the structure
or Erf 1444 itself, but extend, on the clear wording of the Act, to the
surrounding area, including other buildings or structures in the immediate
vicinity of Erf 1444. This would encompass the large concentration of art deco
buildings spanning both sides of Davenport Road and its surrounding area,

which, on all the available evidence, forms part of the national estate and is
worthy of protection. In fact, as recorded above, the City of Cape Town has
recognised this and is in the process of rendering Erf 1444 and its surrounds a
protected heritage area.

[24] Although the proposed designation of the area as a heritage area requires
further refinement, as well as engagement between the owner and the public,
the evidence shows that it is an ongoing process that would, in the foreseeable
future, result in the formal protection of the area in which Erf 1444 is situated.
In view thereof, I agree with the submission on behalf of the MEC, that it would
not make sense to allow for the demolition, in the interim, of the very resources
that are intended to form the subject of the HPOZ, without the necessary
counter-balancing measures to preserve the fabric of the HPOZ, such as the
conditions imposed in the demolition permit.

[25] The appellant’s construction of s 48(2), limiting the imposition of
conditions to formally declared conservation areas only, would effectively
reduce heritage resources management to a small area of concern and exclude
major instances of possible abuse from the power of protection by heritage
resources authorities. The current is a prime example. Where a heritage
resource, such as this art deco area of Vredehoek, is potentially affected by an
application brought in terms of the Act, the relevant heritage authorities should
be entitled to impose such conditions as the Act would permit for the
conservation of the affected area. In fact, their failure to do so would constitute
the shirking of their conservation mandate to protect heritage resources for
posterity.

[26] Counsel for the appellant reiterated that the Act does not authorise
heritage authorities to impose conditions controlling future development on a
property when they grant a permit authorising demolition of the structure on a
property with no formal heritage status. Therefore, the submission continued, it
is impermissible to attach conditions to a demolition permit for the purpose of
preserving
neighbourhood
characteristics
unless
those
neighbourhood
characteristics have been recognised as worthy of preserving by the designation
of the area as a protected heritage area.

[27] In Qualidental this court also dealt with an appeal regarding the
imposition of a condition as to future development in a demolition permit in
respect of a structure in an unprotected heritage area. The same submission was
made on behalf of the appellant, namely that, in those circumstances, the Act
does not clothe the HWC with the power to impose the relevant conditions. In
paragraph 20 this court made short shrift of this submission in the following
terms:
‘I may add that the purpose and effect of the condition are designed to enable the first
respondent [HWC] to exercise a power vested in it in terms of the Act and which, as pointed
out, is consonant with the overall objective of the Act ie the conservation of a heritage
resource. Therefore the condition, rather than being one aimed at controlling development, as
contended by the appellant, was in actual fact a condition with a conservation objective.’

[28] While the facts in the present appeal differ somewhat from those in
Qualidental, this does not detract from the principle enunciated therein, that,
even in an unprotected heritage area, the relevant heritage conservation
authority may, in appropriate circumstances, when approving a demolition,
impose conditions controlling future development to protect a heritage resource
and its surrounds.

[29]  In my view, the purpose and effect of the conditions imposed in the
present matter were clearly designed to enable HWC to fulfil its duty in terms
of the Act, ie to conserve a heritage resource. Therefore the conditions, contrary
to the appellant’s submission, were not aimed at controlling development as
such, but constituted conditions with a conservation objective. It follows that
the conditions were lawfully imposed in terms of s 48(2) of the Act.

[30] Counsel for the appellant also had a second string to his bow. He
submitted that an interpretation of the Act which authorises a heritage authority,
when it grants a permit authorising demolition of the structure on a property not
otherwise protected under the Act, to impose conditions controlling future
building or development on the property, permits the arbitrary deprivation of
property contrary to the provisions of s 25(1) of the Constitution. This line of
attack was first raised in the appellant’s heads of argument on appeal. It was not
alluded to in the papers in the court below or in the judgment of Weinkove AJ.
In the result the MEC did not have the opportunity to meet a case on this basis
and to present evidence which might be relevant to it. However, there is no
need to belabour this point, as I believe that there is, in any event, no merit in
the appellant’s underlying submission.

[31] Section 25(1) of the Constitution provides as follows:
‘No one may be deprived of property except in terms of law of general application, and no
law may permit arbitrary deprivation of property.’
In terms of s 25(1), all deprivations of property must meet the requirements of
the section, ie they must be authorised by a generally applicable law and may
not permit arbitrary deprivation. If these requirements are not met, the
infringement will be unconstitutional and invalid, unless it is justifiable under
s 36(1) of the Constitution. See in general P J Badenhorst et al, Silberberg and
Schoeman’s The Law of Property 5ed (2006) at 545; First National Bank of SA

Limited t/a Wesbank v Commissioner, South African Revenue Service &
another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002
(4) SA 768 (CC) paras 57-60.

[32] It is true that the conditions imposed in the demolition permit amount to a
curtailment of the appellant’s entitlement to deal with his property as he sees fit,
and may therefore to a certain extent be regarded as a deprivation of property.
However, it is widely recognised that in our present constitutional democracy
an increased emphasis has been placed upon the characteristic of ownership
which requires that entitlements must be exercised in accordance with the social
function of law in the interest of the community. A J van der Walt and G J
Pienaar Introduction to the Law of Property 7ed (2016) at 50 put it as follows:
‘. . . the inherent responsibility of the owner towards the community in the exercise of his
entitlements is emphasised. The balance between the protection of ownership and the
exercise of entitlements of the owner regarding third parties, on the one hand, and the
obligations of the owner to the community, on the other hand, must be maintained
throughout. This might, in certain circumstances, even mean that an owner’s entitlements
could be limited or infringed upon in the interest of the community. In such cases the
infringement must always be reasonable and equitable [not arbitrary].’
See also the comments of Davis J in Qualidental Laboratories (Pty) Ltd v
Heritage Western Cape & another 2007 (4) SA 26 (C) at 37C-E; Corium (Pty)
Ltd & others v Myburgh Park Langebaan (Pty) Ltd & others 1993 (1) SA 853
(C) at 858E-F; Diepsloot Residents’ and Landowners’ Association & another v
Administrator, Transvaal 1994 (3) SA 336 (A) at 349C-J and Port Elizabeth
Municipality v Various Occupiers 2005 (1) SA 217 (CC) para 23.

[33] In the instant matter the partial deprivation of the appellant’s property
rights by means of the imposition of the conditions in the demolition permit, is
authorised by the Act, in that it stems from the very purpose of the Act viz the

conservation of a heritage resource. The imposition of the conditions also
accords with the conservation mandate of HWC in terms of the Act and is
directly in line with the principles of heritage resources management set out in
the Act.

[34] In these circumstances I find that there has been no arbitrary deprivation
of the appellant’s rights of ownership by HWC. On the contrary, the imposition
of the conditions, in my view, was reasonable and equitable, having regard to
the inherent responsibility of the appellant towards the community in the
exercise of his entitlements as the owner of Erf 1444.

[35] I therefore conclude that the court below was correct in dismissing the
application for review and accordingly the appeal has to fail.

[36] The following order is made:
The appeal is dismissed with costs, including the costs of two counsel.

____________________
PB Fourie
Acting Judge of Appeal

Appearances:

For the Appellant:

S P Rosenberg SC (with him K Reynolds)
Instructed by:

Smith Tabata Buchanan Boyes, Cape Town

Webbers, Bloemfontein

For the Respondent:

I Jamie SC (with him P S van Zyl)
Instructed by:

The State Attorney, Cape Town

The State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY

From:  The Registrar, Supreme Court of Appeal
Date:  29 September 2016
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal

Neutral citation:
Gees v The Provincial Minister of Cultural Affairs and Sport (974/2015)
[2015] ZASCA 136 (29 September 2016)

The SCA has today dismissed the appeal of the appellant against a judgment of the Western
Cape High Court. In so doing the SCA held that the large concentration of art deco buildings
spanning Davenport Road, Vredehoek, Cape Town, forms part of the national estate and is
worthy of protection as a heritage resource. Therefore, the SCA held, that Heritage Western
Cape, in granting a permit for the demolition of the appellant’s 60 year old block of flats, was
justified in imposing conditions controlling future development on the property.

---ends---