Badenhorst and Another v Retief and Another (13145/13) [2013] ZAWCHC 181 (5 December 2013)

Badenhorst and Another v Retief and Another (13145/13) [2013] ZAWCHC 181 (5 December 2013)

The court held that, in accordance with the Supreme Court of Appeal's majority judgment in True Motives, the local authority is required to refuse building plan approval only if it is satisfied that the proposed building will probably or in fact trigger one of the disqualifying factors in section 7(1)(b)(ii) of the Building Act. Mere doubt or possibility is insufficient. The applicants failed to demonstrate that the functionary did not apply his mind or that no reasonable functionary could have concluded otherwise on the probabilities. The evidence showed compliance with all applicable regulations and that the overlooking window was not an extraordinary feature. The balance of convenience...

Citation
[2013] ZAWCHC 181
Parties
Applicant: Frans Hendrik Badenhorst; Applicant: Renee Freya Badenhorst; Respondent: Paul Johannes Derrick Retief; Respondent: The City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 December 2013
Case Number
13145/13
Procedural Posture
Urgent Application / Extended Return Day of Rule Nisi; Application for Interim Interdict Pending Review
Outcome
Application for interim interdictal relief dismissed; rule nisi discharged; costs awarded to first respondent.
Judges
Binns-Ward
Legal Topics
Building Regulations, Interim Interdict, Review of Administrative Action, Market Value, Municipal Decision Making
Administrative Law Land and Property Building Regulations Interim Interdict Review of Administrative Action Market Value Municipal Decision Making

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Frans Hendrik Badenhorst

Applicant

Renee Freya Badenhorst

Applicant

Paul Johannes Derrick Retief

Respondent

The City of Cape Town

Respondent

Procedural Posture

Urgent Application / Extended Return Day of Rule Nisi; Application for Interim Interdict Pending Review

Legal Issues

  1. 1 Whether the approval of building plans by the City of Cape Town contravened section 7(1)(b)(ii)(bbb) and (ccc) of the National Building Regulations and Building Standards Act.
  2. 2 Whether the applicants are entitled to interim interdictal relief pending the review of the building plan approval.
  3. 3 What is the correct interpretation of section 7(1)(b)(ii) of the Building Act in light of conflicting Constitutional Court and Supreme Court of Appeal judgments.

Ratio Decidendi

The court held that, in accordance with the Supreme Court of Appeal's majority judgment in True Motives, the local authority is required to refuse building plan approval only if it is satisfied that the proposed building will probably or in fact trigger one of the disqualifying factors in section 7(1)(b)(ii) of the Building Act. Mere doubt or possibility is insufficient. The applicants failed to demonstrate that the functionary did not apply his mind or that no reasonable functionary could have concluded otherwise on the probabilities. The evidence showed compliance with all applicable regulations and that the overlooking window was not an extraordinary feature. The balance of convenience...

Court Disposition

Application for interim interdictal relief dismissed; rule nisi discharged; costs awarded to first respondent.

Orders

  • The rule nisi issued on 14 August 2013 is discharged.
  • The application for interim interdictal relief is refused.