Bryer N.O. and Others v Heritage Western Cape (16392/2017) [2018] ZAWCHC 67; 2018 (5) SA 597 (WCC) (11 June 2018)

Bryer N.O. and Others v Heritage Western Cape (16392/2017) [2018] ZAWCHC 67; 2018 (5) SA 597 (WCC) (11 June 2018)

The court held that the Stop Works Order issued by the respondent was not authorised under the National Heritage Resources Act, as it was issued by the CEO and not a heritage inspector after an on-site inspection. Regarding the interpretation of 'site' in section 38(1)(c)(i), the court found that 'site' should be given its ordinary grammatical meaning—an area of land where the development or activity is actually taking place. The notification obligation under section 38(1)(c)(i) is only triggered if the area of the actual development exceeds 5,000m2, not merely because the erf exceeds that size. Equating 'site' with 'erf' would lead to arbitrary and irrational results, as erf sizes can...

Citation
[2018] ZAWCHC 67
Parties
Applicant: Denise Heather Bryer N.O.; Applicant: Alan Bryer N.O.; Applicant: Cedric Keith Glick N.O.; Applicant: Nadine Glick N.O.; Respondent: Heritage Western Cape
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 June 2018
Case Number
16392/2017
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The Stop Works Order is reviewed and set aside. Declaratory relief granted in favour of the applicants. Counter-application dismissed. Costs awarded against the respondent.
Judges
J Cloete
Legal Topics
National Heritage Resources Act, Statutory Interpretation, Site Definition, Review of Administrative Action
Administrative Law Land and Property National Heritage Resources Act Statutory Interpretation Site Definition Review of Administrative Action

Case Brief

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Parties

Denise Heather Bryer N.O.

Applicant

Alan Bryer N.O.

Applicant

Cedric Keith Glick N.O.

Applicant

Nadine Glick N.O.

Applicant

Heritage Western Cape

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Stop Works Order issued by the respondent on 20 July 2017 was lawfully authorised under the National Heritage Resources Act.
  2. 2 Whether the applicants were required to notify the respondent under section 38(1)(c)(i) of the National Heritage Resources Act for the Anson Square development.
  3. 3 What is the correct interpretation of the term 'site' in section 38(1)(c)(i) of the National Heritage Resources Act.

Ratio Decidendi

The court held that the Stop Works Order issued by the respondent was not authorised under the National Heritage Resources Act, as it was issued by the CEO and not a heritage inspector after an on-site inspection. Regarding the interpretation of 'site' in section 38(1)(c)(i), the court found that 'site' should be given its ordinary grammatical meaning—an area of land where the development or activity is actually taking place. The notification obligation under section 38(1)(c)(i) is only triggered if the area of the actual development exceeds 5,000m2, not merely because the erf exceeds that size. Equating 'site' with 'erf' would lead to arbitrary and irrational results, as erf sizes can...

Court Disposition

Application granted. The Stop Works Order is reviewed and set aside. Declaratory relief granted in favour of the applicants. Counter-application dismissed. Costs awarded against the respondent.

Orders

  • The decision taken by the respondent on 20 July 2017 to issue the Stop Works Order for the cessation of all work in connection with the Anson Square development is reviewed and set aside.
  • It is declared that the applicants are not required, and the respondent has no power to require the applicants, to comply with section 38(1)(c)(i) of the Heritage Resources Act 25 of 1999 in relation to the Anson Square development.