THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no:  560/08

In the matter between:

THE CAMPS BAY RATEPAYERS’
AND RESIDENTS’ ASSOCIATION                            First Appellant
PS BOOKSELLERS (PTY) LIMITED                     Second Appellant

and

GERDA YVONNE ADA HARRISON                    First Respondent
THE MUNICIPALITY OF THE CITY
OF CAPE TOWN                                              Second Respondent

Neutral citation:
Camps Bay Ratepayers’ & Residents’ Association v Harrison
(560/08) [2010] ZASCA 3 (17 February 2010)

Coram:
NAVSA, NUGENT, VAN HEERDEN, MLAMBO and MAYA
JJA

Heard:
25 AUGUST 2009

Delivered:
17 February 2010

Summary:             Local authority ─ National Building Regulations and Building
Standards Act 103 of 1977 ─ application to review and set
aside approval of building plan ─ whether plan complies with
the relevant statutory requirements.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Cape High Court (HJ Erasmus J sitting as court of first
instance):

The appeal is dismissed with costs including the costs of two counsel.

______________________________________________________________

JUDGMENT
______________________________________________________________

MAYA JA (NAVSA, NUGENT, VAN HEERDEN and MLAMBO JJA
concurring)

Introduction

[1] This is an appeal, with the leave of the court below, against its refusal
of an application for the review and setting aside of a decision of the second
respondent (the municipality) approving the first respondent’s building plans
relating to the proposed development of Erf 590 Brighton Estate Extension
No. 2 Township Camps Bay (the property), under s 7 of the National Building
Regulations and Building Standards Act 103 of 1977 (the Building Standards
Act).

[2] The litigation between the parties has a long history dating back to
2005
and
a
few
orders
have
been
made
at
various
stages
of their legal skirmishes. This makes it necessary to set out the relevant
background facts in some detail and, in so far as they may be disputed, I will
apply the test laid down in Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd.1

1 1984 (3) SA 623 (A) at 634-635C.

[3] The main protagonists are the second appellant, PS Booksellers, and
the first respondent, Harrison, who are neighbours. PS Booksellers is the
registered owner of Erf 594, which is its principal place of business situate
diagonally opposite the property. Harrison is a property developer and the
registered owner of the property which she acquired in September 2004 for
development and resale. The litigation arose from the appellants’ objections to
building operations she commenced on the property, which allegedly
contravened the applicable municipal zoning scheme and restrictive title deed
conditions (which are discussed later in the judgment) in respect of building
set-back and height requirements.

[4] On 24 January 2005, the municipality approved Harrison’s building
plans under Plan No. 480217 (the original plan) which depicts a three-storey
residential dwelling with a swimming pool on a plot measuring 427m2 in
extent. The storeys are designated ‘Upper Ground Floor’, ‘First Floor’ and
‘Second Floor’. According to this plan the property is situated at the corner of
Geneva Drive and Blinkwater Road. Its topography slopes from Blinkwater
Road down towards Geneva Drive. It has an open parking area with access
from Blinkwater Road. There is another open parking area and a basement
garage on the side of Geneva Drive designated ‘Lower Ground floor’ which,
because of the steeply sloping nature of the property, are at a significantly
lower level than the parking facilities off Blinkwater Road.

[5] Building operations commenced in March, shortly after the original
plan’s approval. However, the appellants objected to the construction. After
the objections were raised, a chain of correspondence flowed between the
appellants and Harrison in an attempt to reach a compromise. In
consequence, Harrison submitted a substantially revised plan which the
municipality approved under Plan No. 485042 (the September 2005 plan).
The appellants were nonetheless not satisfied that their concerns had been
addressed. In November 2005, they instituted an application to interdict any
further building operations on the property and its sale, transfer or alienation
pending (a) an appeal to be launched in terms of s 62 of the Local

Government: Municipal Systems Act 32 of 2000 (the Systems Act)2 against
the approval of the September 2005 plan, (b) an application for the demolition
of any construction which contravenes the title deed conditions and (c) certain
review proceedings.3

[6] The principal issue in the application (as in the s 62 appeal which
followed) concerned a wall which included a large planter and a swimming
pool water reticulation system constructed along the western side of the
property on the Geneva Drive boundary which continues on the eastern side
of the property on the Blinkwater Road street boundary to which portion of the
dwelling abuts on. The appellants complained that it was not merely a
boundary wall but was designed to support not only the swimming pool and
the planter but also to retain a substantial amount of fill material deposited
and compacted behind it to its full height. This, they contended, contravened
clause D(d) of a reciprocal restrictive title deed condition registered in favour
of every owner of an erf in Camps Bay under the provisions of s 18(3) of
Ordinance 33 of 1934 (the Ordinance), which is applicable to the parties’
respective properties. The clause prohibits the erection of a ‘building or
structure or any portion thereof, except boundary walls and fences ... nearer
than 3.15 metres to the street line which forms a boundary’ of an erf.

[7] The appellants also argued that the ‘finished’ ground level abutting the
dwelling from which the dwelling’s height was to be measured had been
achieved by unlawful manipulation. This was so, they contended, because the
retaining wall impermissibly altered the finished ground level adjacent to the
facades of the dwelling, which was artificially raised by some 3,5 metres, and
disguised the height of such facades thus enabling Harrison to construct a
dwelling to a height in excess of the restriction of 10 metres prescribed by the

2 Section 62(1) of the Systems Act entitles ‘[a] person whose rights are affected by a decision
taken by a political structure, political office bearer, councillor or staff member of a
municipality in terms of a power or duty delegated or sub-delegated by a delegating authority
to the political structure, political office bearer, councillor or staff member, [to] appeal against
that decision by giving written notice of the appeal and reasons to the municipal manager
within 21 days of the date of the notification of the decision’.
3 The review proceedings which would have targeted the September 2005 plan approval
never got off the ground as the intended result was achieved in the s 62 appeal proceedings.

applicable provisions of s 98(2) of the Zoning Scheme Regulations (the
Zoning Scheme).4

[8] In April 2006, the appellants obtained the interdict which remains in
operation.5 This relief was granted on the basis that the retaining walls
reflected in the September 2005 plan indeed contravened clause D(d) and
that, prima facie, they artificially raised the finished ground level by retaining
fill material compacted behind them and reconfigured the original steep slope
in the property to an almost horizontal platform thus concealing an
infringement of the relevant height restriction.

[9] The s 62 appeal which the appellants duly lodged thereafter was also
decided in their favour on the same basis as the interdict proceedings. The
September 2005 plan was accordingly set aside. The appellants went further
and instituted an application for the demolition of the dwelling, a shell of a
three-storey structure built in accordance with the original plan. That
application currently stands over by the parties’ agreement pending the
finalisation of the review proceedings which are the subject of this appeal.

[10]  Prior to the finalisation of the s 62 appeal, Harrison had meanwhile
submitted for the municipality’s approval a further plan as a rider to the
original plan. (As to which plan this document was meant to be a rider is a
point of hot dispute as the appellants contend that it was intended to be a
rider to the defunct September 2005 plan but I deal with this aspect later.)
This plan was also met with written objections from the appellants but after
further revisions, on 6 September 2007, it was approved by the municipality’s
Development Co-ordinator, Mr Holden, on the written recommendation of Mr
Moir, the municipality’s Building Control Officer, under plan 506011 (the plan).
This is the impugned decision which the appellants seek to have reviewed
and set aside.

4 The Regulations were promulgated in terms of s 9(2) of the Land Use Planning Ordinance
15 of 1985 published in Provincial Gazette 4684 of 1 March 1991.
5 The judgment is reported as PS Booksellers (Pty) Ltd v Harrison 2008 (3) SA 633 (C) per
Meer J.

[11]  In the plan’s final version the swimming pool is in a different,
uncontentious position. The planter and other garden landscaping features
and structures erected to provide access to the parking space and the front
door have been omitted altogether. The walls along the northern and western
boundaries of the property previously retaining the swimming pool and the
planter thus no longer serve a retaining function to those structures. The
‘sandbag wall’ running from the corner of the garage to the Geneva Drive
boundary and intersecting the main boundary wall which retained some soil
has been removed. Fill material between the boundary wall and the facade of
the dwelling has also been removed. The plan shows contours in this area
which, according to Moir, is an indication of a ‘fall’ and the absence of fill
material thus leaving nothing to be retained by the remaining wall. The
appellants confirm the removal of these objects but persist that the exposure
of the facades by the removal of fill material has served to reveal an
infringement of the 10 metre height restriction and that the remaining
boundary walls still retain compacted fill material. The plan further shows an
embankment along the northern side and the boundary wall measuring a
compliant height of 2,1 metres.

[12] The appellants’ grounds of review in their founding papers were
framed as follows:
‘[1]  The buildings as contemplated by the plans approved by the [municipality] in
plan no. 506011, will contravene both the title deed conditions applicable to the
property and also the provisions of the zoning scheme applicable to the area in which
the property is situated;
[2]  The [municipality], when considering the application for plan approval, failed to
give due consideration to the objections lodged by the [appellants] against the
approval of such plans;
[3] The [municipality] and its officials committed material errors of law and
misdirected themselves as to the true nature of elements of the proposed building,
when considering the plan for approval;
28.4 The [municipality]’s officials had regard to irrelevant considerations and failed to
have due regard to relevant considerations – more particularly the facts, information
and objections before them – when considering the plan for approval.’

[13]  These grounds, as developed in the appellants’ affidavits, turned on
the legality of the plan, ie the alleged infringement of the height restriction
imposed by the Zoning Scheme and the set-back requirements set out in the
title deed; the competence of the delegated authority to the decision-maker
who approved the original plan (this ground was not pursued on appeal) and
the procedural fairness or otherwise of the decision to approve the plan in
relation to the manner in which the application was scrutinised, particularly the
municipality’s alleged failure to identify unlawful features and consider the
appellants’ objections. The appellants subsequently added further grounds in
their replying affidavits, namely that (a) the plan also contravened s 47(1) of
the Zoning Scheme and (b) the approval of the plan as a rider to a previously
approved plan was incompetent.

[14]  The court below refused to entertain the challenge relating to s 47(1) of
the Zoning Scheme mainly on the basis that it had been raised late (in reply)
and was as a result not adequately canvassed in the papers. The court then
dismissed all the other grounds of review and found, inter alia, that even if the
approval process was not fair because Moir’s memorandum did not
adequately reflect the appellants’ objections, it would not be just and equitable
to set the plan approval aside solely for that reason. In its view, the
municipality had correctly decided that the plan complies with all the relevant
legal provisions and no purpose would be served by remitting the matter for
fresh consideration.

[15] Before us, the appellants contested the decision of the court below on
the same grounds but added more: that (a) the municipality did not pay due
regard to the objections raised by interested parties on the basis of derogation
in value of their properties under s 7(1)(a) and (1)(b)(ii) of the Building
Standards Act when it considered the plan; (b) the municipality failed to
furnish the decision-maker, Holden, with a building control officer’s
recommendation and (c) the court below wrongly exercised its discretion in
refusing the review having regard, inter alia, to the fact that the municipality
and the court itself did not consider a number of issues relating to whether the

application complied with relevant law, bearing in mind that the doctrine of
legality does not countenance invalid administrative acts.

[16]  It is convenient to set out the legal framework within which the matter
falls to be decided before I deal with the parties’ contentions. The relevant and
principal statutory provisions are provided by the Building Standards Act the
objective of which is to promote uniformity in the law relating to the erection of
buildings within local authorities. Section 4(1) requires the local authority’s
written approval of a landowner’s application comprising of building plans and
specifications prior to the construction of a building. Section 5 enjoins every
local authority to appoint a building control officer. This is a key official without
whom a local authority may not function,6 who must be skilled and
specialized7 and is vested with wide-ranging powers in the exercise of
building approval and development within a local authority which are set out in
s 6. Section 6(1)(a) obliges him or her to ‘make recommendations to the local
authority in question, regarding any plans, specifications, documents and
information submitted to such local authority in accordance with s 4(3)’.8

[17]  Section 7 regulates the approval of building plans. Its provisions
empower a local authority to grant an application if satisfied that the
application complies with the requirements of the Building Standards Act and
stipulates the circumstances in which an application will be refused. The
material provisions are couched in s 7(1) which reads:
‘If a local authority, having considered a recommendation referred to in section
6(1)(a) –
(a)
is satisfied that the application in question complies with the requirements of
this Act and any other applicable law, it shall grant its approval in respect thereof;
(b)
(i) is not so satisfied; or
(ii)
is satisfied that the building to which the application in question relates –

6 See Paola v Jeeva NO 2004 (1) SA 396 (SCA) paras 14-16; Walele v City of Cape Town
2008 (6) SA 129 (CC).
7 See Part A16 of the Regulations under the Building Standards Act, GN R2378 RG4565, 12
October 1990 (the Building Regulations) which stipulates the tertiary educational
qualifications which must be vetted by the Human Sciences Research Council that a building
control officer must possess to qualify for the position.
8 Section 4(3) sets out the nature of the particulars which the application envisaged in the
section should contain.

(aa) is to be erected in such manner or will be of such nature or appearance
that –
(aaa) the area in which it is to be erected will probably or
in fact be disfigured thereby;
(bbb) it will probably or in fact be unsightly or
objectionable;
(ccc) it will probably or in fact derogate from the value of
adjoining or neighbouring properties;
(bb)   will probably or in fact be dangerous to life or

property,

such local authority shall refuse to grant its

approval in respect  thereof and give written

reasons for such refusal;
Provided that the local authority shall grant or refuse, as the case may be, its
approval in respect of any application where the architectural area of the building to
which the application relates is less than 500 square metres, within a period of 30
days after receipt of the application and, where the architectural area of such building
is 500 square metres or larger, within a period of 60 days after receipt of the
application.’

[18]  I turn to deal with each of the grounds of review.

The alleged failure by the decision-maker (Holden) to consider the appellants’
objections under s 7(1)(a) and (1)(b)(ii) of the Building Standards Act

[19]  It was contended for the appellants that they duly lodged an objection
that the proposed building would derogate from the value of neighbouring
properties, including Erf 594, which both Moir and Holden were obliged to
consider; that Moir failed to inform Holden of the objection by furnishing him
with a copy of the document in which it was embodied or a fair and accurate
summary thereof, as he was obliged, and that such failure – to place
statutorily relevant information before the decision-maker – nullified Holden’s
approval of the plan. The objection was purportedly embodied in two letters
dated 27 October 20069 and 15 January 2007,10 respectively, and an affidavit

9 The material part of this letter reads:

filed in support of the appellants’ founding papers which was deposed to on
the latter date by Mr van der Spuy, a sworn valuer. Van Der Spuy’s brief
affidavit, one of a number of documents attached to the founding affidavits,
merely stated without proffering any supporting facts that the basis for
determining Erf 594’s market value was the arm’s length price which he
estimated a willing buyer would pay a willing seller in an open market situation
and that the dwelling, described as ‘imposing and somewhat overbearing’,
would substantially derogate from the market value of Erf 594 if permitted to
stand.

[20] The appellants’ submissions in this regard may, in my view, be
disposed of shortly. The issue of derogation of value was not pertinently
raised as a ground of review in the court below. The passing reference to the
issue in the letters of objection and Van Der Spuy’s affidavit to which no
weight can be accorded remained merely that, and no more, as the
allegations were not adopted in the founding affidavit to found a ground of
review on which the appellants relied. The respondents, who could well have
raised a solid defence, were therefore not required to address these
documents and rightly did not address the issue in their opposing affidavits.
Notably, the ground was not mentioned at all in the comprehensive judgment
of the court below which scrupulously listed those argued before it. The
appellants’ counsel was also constrained to concede, albeit reluctantly, that
the ground was rather canvassed in the demolition application which was not

‘The approval of these building plans with their reliance on a fictitious and unattainable
finished level of the ground abutting the façade of the building would permit the retention of
the currently illegal building when the height of the façade would exceed the 10m limitation
(by some 2m) … [t]hat is, the unlawfully constructed three storey building achieves, and
would retain, a physical height of one storey higher than the legitimate expectations of the
owners of adjoining and neighbouring properties. We accordingly submit that the building in
question … “is to be erected” … in such a manner that it will be … undesirable and will …
derogate from the value of adjoining and neighbouring properties, and that the Council is
therefore compelled to reject the building plan application by virtue of the provisions of
s 7(1)(b) of the [Building Standards Act].’
10 In this letter the relevant objection was recorded as follows:
‘Quite apart from all the aforegoing objections, our clients object to the revised plans now
submitted on the basis that in terms of s 7(1)(b)(ii)(aa)(ccc) the structure will in fact derogate
from the value of adjoining or neighbouring properties. In support of our clients’
aforementioned objections, we annex hereto … an affidavit deposed to on the 15th January
2007 by Mr John Phillip van der Spuy, a Sworn Valuer, which must be treated as if inserted
herein’.

before us and was not ‘dealt with as a separate and distinct ground’ in these
proceedings.

[21]  The appellants therefore seek, at appeal stage, to rely on a ground that
they not only failed to establish in their founding papers but was not
canvassed at all in the court below. This is impermissible. As Cloete JA
pointed out in Minister of Land Affairs and Agriculture v D & F Wevell Trust:11
‘It is not proper for a party in motion proceedings to base an argument on
passages in documents which have been annexed to the papers when the
conclusions sought to be drawn from such passages have not been
canvassed in the affidavits. The reason is manifest – the other party may well
be prejudiced because evidence may have been available to it to refute the
new case on the facts. The position is worse where the arguments are
advanced for the first time on appeal. In motion proceedings, the affidavits
constitute both the pleadings and the evidence: ... and the issues and
averments in support of the parties’ cases should appear clearly therefrom. A
party cannot be expected to trawl through lengthy annexures to the
opponent’s affidavit and to speculate on the possible relevance of facts
therein contained. Trial by ambush cannot be permitted.’
This review ground must, therefore, fail.

The alleged failure by the municipality to provide the decision-maker with a
recommendation from the Building Control Officer as contemplated by
sections 6 and 7 of the Building Standards  Act

[22]  The appellants’ attack in this regard was based on the ground that the
memorandum Moir submitted to Holden was not a recommendation as
envisaged by sections 6 and 7 of the Building Standards Act because it, inter
alia, (a) did not fairly or accurately summarise their objections to the plan and
was in certain respects factually incorrect, (b) did not inform Holden, even in
summary, of all their objections particularly those relating to the infringement

11 2008 (2) SA 184 (SCA) para 43. See also National Director of Public Prosecutions v Zuma
2009 (2) SA 277 (SCA) para 47; Van Zyl v Government of the Republic of South Africa 2008
(3) SA 294 (SCA) para 40; Swissborough Diamond Mines (Pty) Ltd v Government of the
Republic of South Africa 1999 (2) SA 279 (T) at 324F-G.

of the height restrictions and derogation of value of neighbouring properties,
(c) contained insufficient information such as would enable Holden to
independently make a rational decision on the application before him and (e)
showed that Moir himself failed to appreciate the nature of the objections or
left out information he thought had no merit thus arrogating himself a
discretion he did not have. Reliance for this proposition was placed on the
Walele12 decision which we were advised was delivered after the matter was
argued before the court below but before judgment was given.

[23]  As with the derogation of value argument dealt with above, the
contention that Moir’s memorandum was not a proper recommendation was
not one of the review grounds in the appellants’ affidavits; it was raised for the
first time in their heads of argument in this court. I am not inclined to lend it
any credence for the same reason that I refused to entertain the derogation of
value point. As I have said, it would be prejudicial to the municipality if the
appellants were allowed to advance a new issue on appeal which was not
raised in their founding affidavits and which the municipality did not have an
opportunity to deal with in its opposing affidavit. But I will consider the
question whether or not the municipality gave due regard to relevant
considerations and the appellants’ objections as that is what was canvassed
in the affidavits.

[24]  That Holden’s decision constituted administrative action as defined by
the Promotion of Administrative Justice Act 3 of 2000 (PAJA), which is
constitutionally required to be lawful, reasonable and procedurally fair,13 was
not in dispute. As pointed out, the appellants’ main complaint in their papers
was that the municipality’s officials did not have due regard to their objections
which the municipality denied. Although there was no statutory obligation on
the municipality to afford the appellants an opportunity to make
representations about the impact the proposed building might have on their

12 Op cit n6.
13 Section 3(1) of PAJA requires that ‘[a]dministrative action which materially and adversely
affects the rights or legitimate expectations of any person must be procedurally fair.’

properties,14 it nevertheless commendably invited PS Booksellers’ input. Once
it did so, it was enjoined to consider the appellants’ representations. A
determination of whether such representations were properly considered
requires an examination of the procedure followed in the approval process.

[25] Undisputed evidence is that the exercise, which was undertaken by
various departments within the municipality, took the following sequence. On
2 June 2006 the Land Information Property Management Department granted
the necessary clearance after verifying and confirming cadastral boundary
measurements, title deed information, servitude and road widening
information. On 17 August 2006 Messrs Napoli (a Principal Plans Examiner)
and September (the Section Head) of the municipality’s Land Use
Management Department granted clearance after verifying and confirming
that the plan was consistent with the Zoning Scheme Regulations, including
height restrictions and building lines. These officials had sight of and
considered the actual letters of objection before endorsing the plan. Structural
engineering acceptance indicating that structural certification was in order had
been granted by the Plans Examiner who, after assessing that the application
complied with the Building Standards Act and other relevant laws, submitted it
to Moir.

[26] Moir then requested Harrison and her experts to address him on the
merits of those objections. He subsequently requested further information
from her in response to which the municipality received correspondence from
Messrs Lewis (a land surveyor) and Labrum (a structural engineer). After
considering these responses Moir referred the plans to Mr Henshall-Howard,
the municipality’s Building Development Management Head, on 5 June 2007,
and thereafter, on 17 August 2007, he passed them on to September to
consider the certificate from Labrum for further verification and clearance.
According to Moir, he did not only consider the objections and all the
information placed before him but also inspected the property before
compiling his memorandum which included a summary of the objections. It is

14 Walele at  para 71.

that memorandum and the approval document which made reference to the
different departmental clearances that Holden relied on in granting the
approval.

[27]  In his affidavit, Holden stated that in reaching his decision he relied on
the facts, opinions and advice provided to him by Moir and the other in-house
experts who scrutinised the application. He said that he considered the
information furnished by Moir adequate and was satisfied that the appellants’
objections – the memorandum recorded that the objections included that the
proposed building contravened the title deed conditions; that the levels
furnished by the land surveyor were incorrect and that the embankment
around the dwelling would become unstable – which were ‘clearly and
properly conveyed’ (as confirmed by a later, thorough perusal of the original
letters of objection) had no merit and that the plan met the statutory
requirements. He reached this conclusion after giving particular attention to
the fact that the application had been revised to comply with the title deed
conditions and the Zoning Scheme; Labrum’s advice that the building was
founded at undisturbed ground level and did not rely on any fill against the
boundary for support; that the walls encroaching the title deed requirements
could be removed and responsible landscaping would not affect the structure;
the opinion of the experienced and reputable Lewis that the levels were
correct and no point of the building would exceed the prescribed 10 metre
height level above the finished ground level and Moir’s advice that none of the
statutory requirements would be infringed. (These were the very issues at the
heart of the appellants’ case which essentially concerns the height levels and
building lines of the proposed building.)

[28]  There is, generally, nothing improper about such conduct, as a
decision-maker may rely on the expertise and advice of officials within his or
her institution as long as he or she is fully apprised of the interested parties’
representations – an accurate summary containing a fair synopsis of the
relevant evidence and such representations will generally suffice – and does

not abdicate the responsibility of independently assessing the application and
making the ultimate decision.15

[29] It appears to me on this evidence that all the necessary protocols were
scrupulously observed by the relevant officials and due regard paid to the
appellants’ concerns in the approval process. I cannot conceive what more
could have been done to render the process fair. As I see it, Holden was
entitled to rely on Moir’s memorandum and the accompanying document in
the manner he did. This must be so, bearing in mind that the building control
officer’s recommendation is intended to be the decision-maker’s primary
source of information which forms the basis of his or her opinion.16 As the
court put it in the Walele decision ‘[t]he discretion conferred on the decision-
maker is highly circumscribed because the decision taken is reliant upon the
antecedent opinion reached ... upon a consideration of the [building control
officer’s] recommendation.’17

[30]  The question whether the action complained of causes prejudice is
important in deciding whether or not to grant the relief sought. None seems to
have been occasioned here by reason of the procedure followed. Bearing in
mind that what constitutes a fair administrative procedure depends on the
circumstances of each case,18 I am unable to find that such procedure is so
flawed as to vitiate the decision to approve the plan.

The alleged unlawfulness of the approval of the plan as a rider plan

[31]  The appellants persisted with their argument in the court below that the
Building Standards Act makes no provision for the concept of a rider plan and
that the municipality therefore impermissibly approved the plan as a rider plan

15 Earthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs and
Tourism 2005 (3) SA 156 (C) para 76; Minister of Environmental Affairs and Tourism v
Scenematic Fourteen (Pty) Ltd 2005 (6) SA 182 (SCA) para 20; Jeffs v New Zealand Dairy
Production and Marketing Board [1996] 3 All ER 863 (PC) at 870F-G; Walele para 69.
16 Walele paras 68 and 70.
17 At para 67.
18 See s 3(2)(a) of PAJA; Premier, Province of Mpumalanga v Executive Committee,
Association of State-Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC) para 39.

to a previously approved plan. They contended further that the plan was in
any event approved as an amended version of and a rider to the defunct
September 2005 plan, a fact which alone rendered its approval incompetent.

[32]  I deal first with the latter submission. The plan expressly states on its
face that it was approved as a rider to the original plan. The Moir
memorandum referred to it as such as did the parties themselves in the
founding and opposing affidavits. As pointed out by the appellants in their
replying papers, Holden’s approval document referred to it as a rider to the
September 2005 plan, perhaps because the latter plan was the most recently
approved plan and still subsisted when the plan was approved on 2 June
2006. But, whatever the reason for this obvious error was, I do not think that it
can detract from the patent fact that the municipality approved the plan as a
rider to the original plan.

[33]  Concerning the first contention, it is so that the Building Standards Act
makes no mention of a rider plan. However, s 17(1) empowers the Minister to
make regulations regarding, inter alia, ‘the preparation, submission and
approval of plans and specifications of buildings, including the approval of
amendments or alterations to plans and specifications of buildings during the
erection thereof’. In consequence, Regulation A25(5) criminalizes deviation
from an approved plan building ‘except where such deviation has been
approved’. Regulation A25(6) then empowers a local authority to stop the
erection of a building where there is an unauthorized deviation from approved
plans during the course of construction, except where it is found that the
deviation is necessary, in which case construction may be allowed to continue
subject to the submission of an amended plan for approval.

[34]  These provisions undoubtedly contemplate a deviation from an
approved plan and the submission and approval of an amended plan, drawing
or particulars to cater for such a deviation where necessary. At a practical
level, according to Moir’s uncontested allegations, the municipality routinely
receives and processes applications for the approval of additional or
supplementary plans (commonly referred to as rider plans) amending or

qualifying a previously approved plan whenever a deviation from such
approved plan becomes necessary during the construction of a building.

[35]  I am inclined to agree with the court below that the Legislature would
hardly have vested the Minister with the authority to make provisions of this
nature if local authorities did not have the implied power to approve
amendments or alterations to approved plans in terms of the governing
provisions contained in s 7 of the Building Standards Act. It seems to me that
to give effect to the Legislature’s clear intention, the plans, specifications and
documents required to accompany an application in respect of the erection of
a building by s 4 of this Act (the wording appears to envisage the possibility of
a plurality of plans per application) must necessarily include amended or rider
plans. In the circumstances, I find that the plan was a rider to the original plan
and that its approval was not ultra vires the provisions of the Building
Standards Act.

The alleged contravention of title deed conditions

[36]  As indicated above, the appellants’ other complaint is that the plan
impermissibly allows retaining walls which encroach on the 3,15 metre
setback to the street line and form a boundary to the property in contravention
of clause D(d) of the applicable restrictive title deed conditions. Although this
issue does not appear to have been pursued with any vigour or at all in
argument in the court below the appellants insist that the infringing walls
remain in the original plan and are depicted on the plan. According to Moir,
the walls along the northern and western boundaries of the property no longer
serve a retaining purpose but mark the boundary walls of the property. Only
the wall abutting Blinkwater Road serves a retaining function. But, he says
that this wall supports only a municipal public footway incidentally and this,
the municipality contends, does not infringe the relevant requirements but

places it in line with clause D(g) of the title deed provisions imposing
favourable conditions in the municipality’s favour against property owners.19

[37]  It must be considered that the main objective of the title deed
conditions, which were introduced in the absence of comprehensive town
planning legislation, was to regulate development and usage of land between
developers and the purchasers and owners of individual erven and their
successors-in-title. The purpose of this particular setback restriction must
obviously have been to prevent property owners from building too close to the
street lines. That does not seem to have happened here. No building or
structure encroaches on the 3,15m setback as the wall in issue does not
retain any ground or structure on the property itself. It merely performs a
boundary function as it encloses an open space,20 which is permitted by the
restriction, and benefits the municipality on a portion of the latter’s land
external to the property. It seems inconceivable that this was the
contemplated target of the restriction and I can find no transgression of the
provisions of clause D(d).

The alleged contravention of s 98 of the Zoning Scheme in respect of the 10
metre height restriction

[38]  In support of this ground, the appellants contended that Harrison
artificially raised the ground level on the property to evade the height
restriction by using fictitious ground levels in the plan as evidenced by the
differences between the levels shown in the survey and the architect’s
drawings in the plan.

[39]  Section 98 of the Zoning Scheme provides:
‘Camps Bay and Bakoven

19 Clause D(g) reads: ‘As being in favour of the Council of the Municipality of Cape Town:-
That the owner of this erf shall be obliged to receive material to give a proper slope to the
bank, if this erf is below the level of the adjoining erf, and if this erf is above the level of the
adjoining erf, he shall [in] like manner permit a safe slope to the bank, unless in either case he
shall elect to build retaining walls to the satisfaction of the City Engineer and within a period to
be determined by the Municipality of Cape Town.’
20 BEF (Pty) Ltd v Cape Town Municipality 1983 (2) SA 387 (C) at 396D-G.

(1) No building within the area of Camps Bay and Bakoven bounded by the municipal
boundary to the South and Kloof Road to the North shall exceed three storeys in
height.
(2) No point on the façade of any building within such area shall be more than 10m
above the level of the ground abutting such façade immediately below such point.
(3) For the purpose of subsection (2) “façade’ means a main containing wall of a
building, other than a wall of an internal courtyard.’

[40]  Lewis deposed to an affidavit recording his findings. He prepared a
survey map in September 2004 on which he subsequently superimposed the
plan. In his view, the heights of the contour lines in the plan were accurate as
they accorded with his earlier survey and corresponded with those reflected in
the original plan. These findings were supported by another land surveyor, Mr
Abrahamse, who undertook an independent survey at Harrison’s instance.
Abrahamse confirmed that a survey of the finished ground level surrounding
and immediately adjoining the dwelling revealed that no point of the façade of
the dwelling was more than 10 metres above the level of the ground. Another
expert, Mr Lowden, a civil engineer specializing in structural engineering
engaged by the municipality, found amongst other things that ‘the foundations
of the dwelling are founded at an appropriate level and that the building
structure is not dependent on the construction of any retaining walls to provide
stability to the foundations’.

[41]  The appellants’ response to these experts’ allegations in their replying
papers was that their objection was ‘never that the height from the top to the
bottom of the parapet [of the dwelling] to the ground immediately abutting the
façade as currently shown on the plan exceeds 10 metres’ but that ‘the true
height of the façade, absent the illegal structures and the fill retained thereby,
will and does exceed 10 metres’.

[42]  It is clear from these allegations that the appellants accept that the
dwelling reflected in the plan falls within the permissible height restriction and
that their complaint concerns rather the dwelling that has actually been
constructed. In that case the appellants cannot challenge the approval of the

plan on the basis they have advanced namely; that the municipality approved
a plan that permits a dwelling that infringes the 10 metre height restriction
imposed by s 98 of the Zoning Scheme. It did not. That, I think, puts paid to
this review ground.

[43]  It is not necessary in the light of this finding to determine whether or not
the height of the actual dwelling is compliant, an exercise I suspect may prove
unwinnable for the appellants on the available evidence. The Building
Standards Act does provide for a situation where a building has been built
contrary to approved plans but that enquiry (which is probably the subject of
the pending demolition application) falls outside the purview of these
proceedings.

The alleged contravention of s 47 of the Zoning Scheme in respect of setback
requirements

[44] The court below declined to consider this ground of review on the
grounds that it was raised too late in the proceedings and that the required
interpretation of s 47 was highly controversial as it involved the measurement
of the average depth of the site and the scrutiny of the relationship, if any,
between the relevant regulation and the title deed conditions; issues which, in
its view, had not been properly canvassed in the papers.

[45]  I am of the respectful view that the court’s refusal to entertain the
matter was wrong. This, however, is an appeal against the exercise of another
court’s discretion in the strict or narrow sense which involves a choice
between permissible options. The approach to be followed by this court,
therefore, is not to consider whether the decision of the court was correct or
not and substitute its decision simply because it would have reached a
different conclusion: it may interfere only where it is shown that the discretion
was not exercised judicially or was exercised based on a wrong appreciation

of principles of law or a misdirection on the facts or reached a decision that
could not reasonably have been made on the relevant facts and principles.21

[46] In my view, the basis on which the court’s decision was premised
indicates a misapprehension of both the relevant principles and the facts and
that the court may even have misconceived the very nature of the enquiry.
First, the matter was raised purely as a law point. The dispute raised was not
fact-based (the relevant boundaries of the site, setbacks and measurements
represented on the plans which seem to have caused the court below some
anxiety were common cause) but concerned only the interpretation and
application of statutory provisions. It did not alter the legal basis upon which
the appellants relied or the ambit of the relief sought. Furthermore, the
appellants alleged no prejudice – the foremost consideration in a court’s
exercise of its discretion as to whether or not to entertain a belated point22 –
and were in fact able to deal with the issues fully in their supplementary
papers and argument as indicated by the court itself in its judgment. I think
that these reasons alone were sufficient to persuade the court below to
entertain the review ground. This court is thus at large to interfere.

[47]  Section 47 of the Zoning Scheme prescribes specific building lines for
buildings and reads:
‘(1) Except as provided in subsection (2), no building which is a Dwelling House,
Double Dwelling House, Group of Dwelling Houses or an Outbuilding to any of the
foregoing shall be erected nearer than 4,5m to any street boundary of the site of such
building provided that:
(a) where a lesser building line is prescribed for the street concerned in Schedule 4
of Appendix A, the distance prescribed in terms of Schedule 4 shall apply;
(b) the above prohibition shall not apply to the boundary between a site and a street
or portion thereof adjacent to such site which street or portion cannot in the
opinion of the Council be constructed or is in the form of a service lane,
pedestrian way or steps, and such boundary shall, for the purpose of Chapter VII,
be deemed to be a common boundary.

21 Knox D’Arcy Ltd v Jamieson 1996 (4) SA 348 (A) at 361H; Naylor v Jansen 2007 (1) SA 16
(SCA) para14; Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC) para 19.
22 Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA) para 32.

(2) Where the average depth of the site of any building referred to in subsection (1)
measured at right angles to a street boundary of such site does not exceed 20m,
such building may be erected nearer than 4,5m but not nearer than 3m to the street
boundary concerned.
(3) Where the boundaries of a site are so irregular that doubt or uncertainty exists as
to the correct value of the average depth of the site, the Council shall define such
average depth in accordance with the intent of this section.’

[48]  The plan reflects that the dwelling is set back 3,233 metres from the
north eastern street boundary. It therefore infringes the provisions of s 47(1)
unless covered by the exceptions created by subsections (2) and (3). The
appellants contend that the municipality was obliged to refuse plan approval in
the face of this patent contravention of the 4,5 metre setback restriction.

[49] Harrison contended that the average depth of the site is less than 20
metres with the result that the exception in s 47(2) applies.  In addition, it was
argued on her behalf that even if there was an illegality the appellants had
unduly delayed raising their challenge which is in any event improper as the
original plan and the source of the contravention is not impeached.

[50] The municipality went further and argued that the boundaries of the site
are so irregular that doubt or uncertainty exists as to the correct value of the
average depth of the site, which entitles the municipality to then define such
average depth, as provided for in s 47(3).  It is difficult to see how the
boundaries of the site can be said to be irregular as contemplated by that
section when the boundaries are made up of a series of straight lines. But that
apart there is no suggestion in the papers that the municipality was pertinently
aware at the time it approved the plan that the building encroached over the
building line, least of all that it applied the provisions of that section when
determining whether to approve the plan. Its reliance upon that provision thus
seems to me to be an afterthought.

[51] The manner in which the ‘average depth’ of a site is to be calculated for
purposes of s 47(2) is in dispute but, on the view that I take of the matter, it is

not necessary to resolve that dispute and I have assumed for present
purposes that the building indeed encroaches over the building line on its
north eastern boundary by 1,267 metres as alleged by the appellants. The
question that then arises is whether the appellants are entitled to have the
plan set aside on that ground.

[52]  The infringement that is now complained of appeared on the original
plan that was approved in February 2005.  Yet the challenge was raised for
the first time by the appellants more than three years later in the replying
affidavits that were filed in May 2008. The appellants had by then dragged the
respondents through a whole gamut of internal processes and litigation.
Significantly, the appellants have from inception been aided by a battery of
experts. The appellants’ explanation for failing to raise this challenge until the
last moment is that they became aware of the issue only in the course of
preparing their replying affidavits when it was drawn to their attention by their
town planning advisor who had previously relied on handwritten notes and
visual memory as he was prevented from copying the submitted plan. I think it
is quite clear from that explanation that the real concern of the appellants was
unrelated to the distance that the building was to be constructed from the
street boundary.

[53]  In terms of s 7(1) of PAJA:
‘Any proceedings for judicial review in terms of section 6(1) must be instituted without
unreasonable delay and not later than 180 days after the date –
(a) . . . on which any proceedings instituted in terms of internal remedies as
contemplated in subsection (2)(a) have been concluded; or
(b) where no such remedies exist, on which the person concerned was informed
of the administrative action, became aware of the action and the reasons for it
or might reasonably have been expected to have become aware of the action
and the reasons.’

[54] The appellants ‘might reasonably have been expected to have become
aware’ of the infringement when they first inspected the original plan and
proceedings for review on that ground ought ordinarily have been commenced

within 180 days of that date.  Section 9(2) however allows the extension of
these time frames where ‘the interests of justice so require’. And the question
whether the interests of justice require the grant of such extension depends
on the facts and circumstances of each case: the party seeking it must furnish
a full and reasonable explanation for the delay which covers the entire
duration thereof and relevant factors include the nature of the relief sought,
the extent and cause of the delay, its effect on the administration of justice
and other litigants, the importance of the issue to be raised in the intended
proceedings and the prospects of success.23

[55]  Here, it seems to me that had the appellants indeed been concerned
about the distance that the building was to be constructed from the street,
there is simply no acceptable explanation for why the infringement was not
detected by their advisers at the outset. In my view, this lapse which as I have
indicated shows that this infraction was not their primary concern, does not
favour the appellants’ application on this ground.

[56] But there is further reason why the challenge should not be entertained
at this late stage.  As pointed out by this court in Oudekraal Estates (Pty) Ltd v
City of Cape Town:24
‘[A] court that is asked to set aside an invalid administrative act in proceedings for
judicial review has a discretion whether to grant or to withhold the remedy.  It is that
discretion that accords to judicial review its essential and pivotal role in administrative
law, for it constitutes the indispensable moderating tool for avoiding or minimising
injustice when legality and certainty collide.’

[57]  Even before the advent of PAJA it was recognised that there may be
circumstances in which delay might justify the refusal of relief, thereby
effectively giving legal effect to an otherwise unlawful act. In Harnaker v

23 Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 (2) SA 837 (CC) para 3; Van Wyk v
Unitas Hospital 2008 (2) SA 472 (CC) paras 20 and 22.
24 2004 (6) SA 222 (SCA) para 36.

Minister of the Interior,25 which concerned a challenge to a legislative act, the
court said the following:26
‘[I]f the affected members of the public, having locus standi to apply to Court for an
order declaring the legislative act null and void, delay unreasonably in taking such
action and this causes prejudice, I do not see why they should not all be precluded
from obtaining relief.  . . . I can see no inequity arising from the application of the
delay rule in this way. Accordingly . . . unreasonable delay by the plaintiff in instituting
action, coupled with resultant prejudice to defendant, is a valid defence, or objection,
to the action.’

[58] In Wolgroeiers Afslaers v Munisipaliteit van Kaapstad27  this Court,
after an extensive discussion of Harnaker and other cases, set out the
parameters of a court’s discretion in relation to delay:28
‘What has indeed been prescribed by our Courts is that proceedings should be
instituted within a reasonable time and, as I have already mentioned, the Court is at
liberty, depending on the circumstances and in the exercise of its discretion, to
condone unreasonable delay in appropriate cases. l cannot possibly accept that in
the formulation of the requirement that proceedings should be instituted within a
reasonable time, it was intended to fetter the Court’s discretion to such an extent that
even where a litigant disregards the Court’s directive by unnecessary and excessive
delay in bringing proceedings, the Court does not have the right to refuse the
application merely because it is not proved or cannot be proved that the respondent
was not materially prejudiced, even though there were, on a review of all the
circumstances, other well- founded reasons for the exercise of its discretion against
the applicant. I accept that prejudice to the respondent and the degree thereof are
relevant factors in the consideration of whether unreasonable delay ought to be
overlooked, and that they can sometimes be the decisive factor, especially in cases
of comparatively trivial delays . . .  Whilst, as I have already indicated, the question
whether there was an unreasonable delay requires a factual finding, the answer to
the question whether an unreasonable delay ought to be overlooked rests in the
discretion of the Court, exercised by taking into consideration all the relevant
circumstances and factors.’ (my emphasis.)

25 1965 (1) SA 372 (C); see also Kalil and another NNO v Minister of Interior 1962 (4) SA 755
(T) at 758A-759D; Hassan & Co v Potchefstroom Municipality 1928 TPD 827; Oudekraal
Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA).
26 At 381D-G.
27 1978 (1) SA 13 (A) at 42A-D.
28 Original Afrikaans text translated into English.

[59] In Oudekraal,29 this court, dealing with the necessity for a review to be
properly brought by a party seeking to set aside an alleged invalid
administrative act, referred to the Wolgroeiers dictum set out in the preceding
paragraph and remarked as follows:
‘No doubt a court that might be called upon to exercise its discretion will take account
of the long period that has elapsed since the approval was granted, but the lapse of
time in itself will not necessarily be decisive: Much will depend upon a balancing of all
the relevant circumstances, including the need for finality, but also the consequences
for the public at large and indeed for future generations, of allowing the invalid
decision to stand. In weighing the question whether the lapse of time should preclude
a court from setting aside the invalid administrative act in question an important –
perhaps even decisive – consideration is the extent to which the appellant or third
parties might have acted in reliance upon it.’

[60] A review application to the Cape High Court followed on this court’s
decision in Oudekraal, which once again resulted in an appeal to this court. In
the second appeal – Oudekraal Estates (Pty) Ltd v City of Cape Town30 (I
shall refer to the second appeal as Oudekraal 2) – this court, in applying
Wolgroeiers,31 had regard to the following dictum from that case:32
‘If it is alleged that an applicant did not institute the proceedings within a reasonable
time, the Court must decide (a) whether the proceedings were in fact only launched
after a reasonable time had elapsed and (b) if so, whether the unreasonable delay
should be condoned. Again, as it appears to me, with reference to (b), the Court
exercises a judicial discretion while taking into consideration all the relevant
circumstances.’

[61] In Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale
Vervoerkommissie,33 with reference to the aforesaid passage from
Wolgroeiers, the following was stated:

29   Above n24, para 46.
30 2010 (1) SA 333 (SCA).
31 At 39C-D; original Afrikaans text translated into English.
32 Para 50.
33 1986 (2) SA 57 (A) at 86D–E.

‘The investigation, as far as (a) is concerned, has nothing to do with the Court’s
discretion; it is simply an examination of the facts of the case in order to determine
whether the period which has elapsed, in the light of all the relevant circumstances,
was reasonable or unreasonable. (Wolgroeiers Afslaers at 42C-D; Schoultz v
Voorsitter, Personeel-Advieskomitee van die Munisipale Raad van George, en ’n
ander 1983 (4) SA 689 (C) at 697-8.) Naturally, the finding which is made in that
regard implies that the Court makes a value judgment in the sense of the Court’s
view of the reasonableness of the period which has elapsed in the circumstances of
the case. Equating such a value judgment with a discretion is, however, legally and
logically indefensible.’34

[62]   In the present case the lapse of three years before the appellants acted
was undoubtedly inordinate, particularly if regard is had to the promptitude
with which people might ordinarily be expected to act and build in accordance
with approved building plans.  Proceeding to the next step of the enquiry,
namely whether the delay should nevertheless be condoned, it is necessary
to step back and consider the totality of circumstances. There is no
suggestion that Harrison consciously flouted the building line restriction.
Acting in reliance upon the approval of the plan she has built a substantial
structure. Besides the substantial cost that would be necessitated by adapting
the building, Harrison has sustained considerable cost in defending litigation
that was quite unrelated to the encroachment over the building line. Moreover,
the infraction is relatively minimal, so much so that it went unnoticed even by
the array of experts employed by the appellants until the litigation was well
advanced.  The local authority supports Harrison and there is not the slightest
prospect that the infraction will impact in any meaningful way on the
aesthetics or future development of Camps Bay. Throughout this saga
Harrison has attempted to the best of her ability to deal with the appellants’
concerns. They, on the other hand, have been intractable. For all these
reasons I conclude that the delay in raising this issue should not be condoned
and the application to review and set aside the plans on that ground should
not succeed.

34 Original Afrikaans text translated into English; See also Oudekraal 2 at para 51.

[63] For these reasons the appeal should fail. It is accordingly dismissed
with costs including the costs of two counsel.

______________________
MML MAYA
Judge of Appeal

APPEARANCES:

APPELLANTS:
DF Irish SC with IC Bremridge

Instructed by Abe Swersky & Associates, Cape
Town

Lovius-Block, Bloemfontein

FIRST RESPONDENT:
HP Viljoen SC with JC Marais

Instructed by Kritzinger & Co, Cape Town

Matsepes Inc, Bloemfontein

SECOND RESPONDENT:
G Budlender SC with K Pillay

Instructed by Abraham & Gross,

Cape Town

EG Cooper & Majiedt Inc, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
17 February 2010

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

THE CAMPS BAY RATEPAYERS’ AND RESIDENTS’ ASSOCIATION and
ANOTHER versus GERDA YVONNE ADA HARRISON and ANOTHER

The Supreme Court of Appeal  today dismissed an appeal against the decision
of the Cape High Court refusing an application for the review and setting aside
of the Cape Municipality’s approval of building plans for a proposed
development of residential property situate in Camps Bay.

The SCA found that the plans generally complied with the provisions of section
7 of the National Building Regulations and Building Standards Act 103 of 1977
and the relevant Zoning Scheme Regulations except in respect of setback
requirements prescribed in section 47 of the Zoning Scheme which prohibits the
erection of a building nearer than 4,5 metres to the street boundary. The SCA
however held that the appellants’ failure to timeously object to the
encroachment, which it found trivial as the appellants themselves and their
experts had overlooked it for years and would not significantly impact on the
aesthetics and future development of Camps Bay, precluded them from relying
on it in their review application.  In reaching this conclusion, the SCA took into
account, amongst other factors, the length of the appellants’ delay, a three-year
period, in raising the objection and the prejudice that the respondent, Mrs
Harrison, who, in apparent oblivion to the encroachment, had built a substantial
dwelling in reliance upon the approval of the plan and sustained considerable
legal costs defending proceedings unrelated to the encroachment, would suffer.