Camps Bay Residents Ratepayers Association and Others v Augoustides and Others (2005/2009) [2009] ZAWCHC 30; 2009 (6) SA 190 (WCC) (24 March 2009)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

REPORTABLE

CASE NO. 2005/2009

In the matter between:

THE CAMPS BAY RESIDENTS AND RATEPAYERS

ASSOCIATION 1ST APPLICANT

CHRISTOPHER PETER LOGAN 2ND APPLICANT

ALLEN ZIMBLER 3RD APPLICANT

GERHARD MEYER MEYER-RODENBECK 4TH APPLICANT

SARAY MEYER MEYER-RODENBECK 5TH APPLICANT

and

CORNELIS ANDRONIKOS AUGOUSTIDES 1ST RESPONDENT

JUDITH AUGOUSTIDES 2ND RESPONDENT

THE CITY OF CAPE TOWN 3RD RESPONDENT

Coram : DLODLO, J

Judgment by : DLODLO, J

For the Applicant : ADV. S.P. ROSENBERG (SC)

: ADV. M. BLUMBERG

Instructed by : Slabbert Venter Yanoutsos Inc.

65 Constantia Road

WYNBERG

TEL. NO. 021 762 5800

REF. A. SLABBERT

c/o Deneys Reitz Attorneys

8th Floor, Southern Life Centre

8 Riebeeck Street

CAPE TOWN

TEL. NO. 021 405 1200

For 1st & 2nd Respondents : ADV. L.A. ROSE-INNES (SC)

ADV. H.J. DE WAAL

Instructed : Fairbridges Attorneys

16th Floor, Main tower

Standard Bank Centre

Heerengracht

TEL. NO. 021 405 7300

Date(s) of Hearing : 26 FEBRUARY 2009

ASSOCIATION 1ST APPLICANT

CHRISTOPHER PETER LOGAN 2ND APPLICANT

ALLEN ZIMBLER 3RD APPLICANT

GERHARD MEYER MEYER-RODENBECK 4TH APPLICANT

SARAY MEYER MEYER-RODENBECK 5TH APPLICANT

CORNELIS ANDRONIKOS AUGOUSTIDES 1ST RESPONDENT

JUDITH AUGOUSTIDES 2ND RESPONDENT

THE CITY OF CAPE TOWN 3RD RESPONDENT

JUDGMENT DELIVERED ON 24 MARCH 2009

DLODLO, J

INTRODUCTION

[1] This is an application for interim relief pending an application for judicial review and for a final interdict. As temporary relief the Applicants seek the cessation of building works currently underway on erf 1421 Camps Bay (‘the property’), owned

by the First and Second Respondents. In the contemplated review the Applicants seek the setting aside of building approval granted by the Third Respondent (‘the City’) in terms of section 7 of the National Building Regulations and Building Standards Act 103 of 1977 (‘the Act’) in respect of the dwelling under construction on the property. The final interdict seeks the prohibition of the building construction in respect of the uppermost level of the development. The application is resisted by the First and Second Respondents. The First Applicant is a voluntary association representing owners of properties and residents in Camps Bay, Clifton and Bakoven. The other Applicants are registered owners of certain specially specified properties to wit 11 Hely Hutchinson Avenue and 13 Hely Hutchinson Avenue, Camps Bay. The First and Second Respondents are joint registered owners of erf 1421 Camps Bay (‘the Respondents’ property’). The City cited as Third Respondent is a local authority within the meaning of that expression in the National Building Regulations and Building Standards Act 103 of 1977 and is responsible for administering and implementing the Building Act within its area of jurisdiction. No substantive relief is sought against the City and it is cited only by virtue of its potential interest in the subject matter of these proceedings. Mr. Rosenberg SC (assisted by Mr. Blumberg) and Mr. Rose-Innes SC (assisted by Mr. De Waal) appeared for the Applicants and Respondents respectively.

THE FACTUAL BACKGROUND

[2] The property, acquired by the Respondents in August 2007, at that stage consisted of a three level dwelling house. The Respondents submitted plans for a five level dwelling, which were approved by the City on 20 December 2007. Construction had begun by early February 2008, with the Respondents subsequently vacating the premises in late March 2008. They returned on 1 December 2008, occupying a portion of the building while the remaining work continued. The Second to the Fifth Applicants are adjoining property owners and/or occupiers. In March/April 2008 it appears that the Third Applicant was led to believe that the dwelling as renovated would not be higher than the existing dwelling. For the rest, affected property owners and the local ratepayers association (the First Applicant) would have had no reason for concern at that stage. However, by early December 2008 it had become apparent that a fifth

level was being constructed.

[3] In the second week of December 2008 the Third Applicant met with the First Respondent, together with the former’s architect. They were permitted by the First Respondent to look at the plans, but not to make a copy thereof. At about the same time the Second Applicant contacted the First Applicant’s executive member Mr. J Powell, who in turn addressed an e-mail to the City on 7 December 2007 querying the basis upon which the plans had been approved. Pursuant to the Third Applicant’s appointment of town planner Mr. T Brummer, the latter met with the City’s building control officer Mr. N Moir on 13 December 2008, and was able to inspect the plans and thereafter to inspect the property on 14 December 2008. On 19 December 2008 the Third Applicant’s Attorney addressed a letter to the Respondents calling on them to make a copy of the approved plans available to the Third Applicant, which the Respondents refused to do.

[4] The initiative of the First Applicant and the Second Applicant was taken further by a meeting in early January 2009 between Mr. Powell, Ms Blackman and the Second Applicant and a further letter sent to the City on 19 January 2009 by Ms Blackman. Mr. Powell arranged a meeting with City officials, for 20 January 2009. At about the same time the Third Applicant’s tenant Mr. Engelbrecht and the Fourth and Fifth Applicants contacted the Second Applicant, and the investigation into the circumstances of plan approval moved forward on a more integrated basis. In the wake of the Third Applicant’s appointment of Attorney Slabbert and land surveyor Lewis, the latter carried out a survey of the property between 7 and 12 January 2009, and on 21 January 2009 met with the City’s Mr. Gonsalves to point out that the second basement level did not satisfy the criteria for a basement in the scheme regulations. Mr. Gonsalves requested a meeting to discuss this, which took place on 27 January 2009 between Mr. Gonsalves, Mr. Lewis and Mr. Brummer. Over the period 20 January 2009 until the institution of the interim interdict application on 4 February 2009 a number of meetings were held, involving inter alia the City, the Applicants and other interested parties, where the competing stances and contentions of the Applicants and the Respondents were further exchanged. The narrative detailing this appears in papers in this matter. It is not necessary to further traverse this aspect – the facts speak for themselves. In essence, the dispute centres on a dwelling which the Applicants contend to be

unsightly and objectionable, and which they allege derogates from the value of property in the neighbourhood. Not only have the immediately affected neighbours (and, possibly, the Respondents themselves recognised that at least one such neighbour is ‘truly adversely affected’), but also the local residents and ratepayers association has felt impelled to take a stand against the Respondents’ development.

[5] The Applicants’ attack on the lawfulness of the development is based upon section 7 (1) of the Act which provides as follows:

‘(1) 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-

(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.’

[6] It is the Applicants’ contention that the approval of the Respondents’ application to build was unlawful and falls to be set aside in that:

the application in question did not comply with the requirements of applicable law, and in particular, the requirements of the City’s zoning scheme regulations;

no recommendation by the building control officer, as required by section 6 (1) (a) of the Act as read with section 7 (1) thereof was made by the building control officer to the City’s delegate who approved the application;

the dwelling falls foul of the certain of the criteria contained in section 7 (1) (b) (ii) (aa).

In the result it is contended by the Applicants that the City’s conduct in approving the application was inconsistent with the Constitution and it follows that the court hearing the review application will be required to make a declaration of invalidity, as contemplated by section 172 (1) (a) of the Constitution.

THE REQUIREMENTS FOR INTERIM RELIEF

[7] The requirements which an applicant for an interim or interlocutory interdict has to satisfy are the following:

A prima facie right;

A well grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

A balance of convenience in favour of the granting of the interim relief; and

The absence of any other satisfactory remedy.

See: Setlogelo v Setlogelo 1914 AD 221 at 227; Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) at 383 A-C; Pietermaritzburg City Council v Local Road Transportation Board 1959 (2) SA 758 (N) at 772 C-E.

In determining whether a prima facie right has been established, the right need not be shown by a balance of probabilities. If it is prima facie established though open to some doubt, that is sufficient. See: Webster v Mitchell 1948 (1) SA 1186 (W) at 1189; Knox D’Arcy Ltd v Jameson 1995 (2) SA 579 (W) at 592 H – 593 B. In cases where there is a dispute of fact, the proper approach is to take the facts set out by the Applicant,

together with any facts as set out by the Respondent which the Applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the Applicant should on those facts obtain final relief. The facts set up in contradiction by the

Respondent then fall to be considered. If serious doubt is thrown upon the case of the Applicant, he cannot succeed in obtaining

temporary relief. See: Fourie v Uys 1957 (2) SA 125 (C) at 127 H – 128 D; LF Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) at 267 E-F.

[8] In general, the stronger the prospects of success (i.e. the strength of the Applicant’s case), the less the need for the balance of convenience to favour the Applicant; the weaker the prospects of success, the greater the need for the balance of convenience to favour him. See: Olympic Passenger Service (Pty) Ltd v Ramlagan supra at 383 D-F. The court possesses a general and overriding discretion whether to grant or refuse an application for interim relief. As pointed out by EM Grosskopf JA in Knox D’Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A) at 362, the courts ‘have not defined the considerations which may be taken into account in exercising the so-called discretion, save for mentioning the obvious examples such as the strength or weakness of the applicant’s right, the balance of convenience, the nature of the prejudice which may be suffered by the applicant and the availability of other remedies’.

[9] Mr. Rose-Innes SC submitted that the requirements for an interim interdict have not been satisfied by the Applicants in the instant matter. He also submitted that the objective of granting an interdict can no longer be achieved as the interdict sought would no longer serve the purpose of preventing the alleged wrongs from being committed. In the latter regard Mr. Rose-Innes SC referred me to S v Baloyi (Minister of Justice Intervening) [1999] ZACC 19; 2000 (2) SA 425 (CC) where the Constitutional Court stated the following about the statutory provisions regarding interdict against the perpetration of family violence:

“[17}…The principal objective of granting an interdict is not to solve domestic problems or impose punishments, but to provide a breathing-space to enable solutions to be found; not to punish past misdeeds, but to prevent future misconduct. At its most optimistic, it seeks preventative rather than retributive justice, undertaken with a view ultimately to promoting restorative justice.” Indeed the Supreme Court of Appeal has stated on a number of occasions that an interdict is not a remedy for a past violation of rights. See: Phillip Morris Inc. and Another v Marlboro Shirt Co SA and Another 1991 (2) SA 720 (A) at 735 B; Stauffer Chemicals Products Division of Chesebrough-Ponds (Pty) Ltd v Monsanto Company 1988 (1) SA 805 (T) at 809F; Payon Components SA Ltd v Bovic CC [1995] ZASCA 57; 1995 (4) SA 441 (A) at 451F-G.

The interdict is aimed at preventing or prohibiting future illegitimate activities. See also: Prest The Law and Practice of Interdicts (1996) at 3. According to Mr. Rose-Innes (SC), the renovations to the dwelling were 95% complete at the time of the signing of the Notice of Motion. It is important to bear in mind that the different requirements for the granting of the interdict referred to supra should not be considered separately or in isolation, but in conjunction with one another in order to determine whether the Court

should exercise its discretion in favour of the grant of the interim relief sought. See: Olympic Passenger Services (Pty) Ltd v Ramlagan supra at 383E-F; Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (A) at 691F-G.

INTERIM RELIEF FOR CESSATION OF BUILDING WORKS PENDING REVIEW PROCEEDINGS

[10] I am guided by a series of decisions of this division as to the manner in which applications for the interim cessation of building works pending review proceedings are to be addressed. The manner in which the courts in this division have addressed applications for the interim cessation of building works pending review proceedings is well-established. It has been laid down in a long series of decisions. Convenient examples include Beck and Others v The Premier of the Western Cape (CPD case no. 12596/06, 11 October 1996, unreported, per Conradie J); Camps Bay Residents and Ratepayers Association and Another v Avadon 23 (Pty) Ltd (CPD case no. 17364/05, 18 March 2006, unreported, per Foxcroft J); PS Booksellers (Pty) Ltd and Another v Harris and Others 2008 (3) SA 633 (C); DM van der Westhuizen v DM Butler (CPD case no. 9871/08, 20 August 2008, unreported, per Davis J) and S Searle v Mossel Bay Municipality and Others (CPD case no. 1237/09, 12 February 2009, unreported, per Binns-Ward AJ).

What appears from this line of decisions is the following:

The prospects of success in the contemplated review proceedings represent the measure of the strength or otherwise of the alleged right that the applicant must establish prima facie in order to obtain interim relief. See: Searle supra at para [6]; Lady Chin Investments (Pty) Ltd v South African National Roads Agency Ltd and Others 2001 (3) SA 344 (N); Transnet Bpk h/a Coach Express en ‘n Ander v Voorsitter, Nasionale Vervoerkomissie en Andere 1995 (3) SA 844 (T)

The stronger the prospects of success in the review proceedings (i.e. the prima facie right) the greater the subordination of prejudice occasioned by a cessation of the building work. Otherwise stated, the principle of legality tends to operate decisively in this context.

As Conradie J noted in Beck’s case supra, if applicants are likely to be proved right in the review proceedings, ‘it is desirable that the building operations should be stopped now, that is to say, sooner rather than later’.

Important purposes and functions of granting interim relief in this context are that a respondent ‘does not build himself into an impregnable position by the time the review comes to be heard’ and, secondly, to prevent the bias exercised by a completed (but unlawful) structure towards the favourable determination of a regularisation application so as to ‘permit a result that would not have been permitted if the factor of a fait accompli had not been present’. See: Searle’s case supra para [11].

THE PRIMA FACIE RIGHT

[11] Mr. Rose-Innes (SC) was very critical of the Applicant’s case as it relates to the prima facie right. He expressed a view that there has been inordinate delay in the launching of this application. He set out a chronology of what he designated as the main events and concluded that this application for an interdict was lodged more than a year after the decision to approve the plans was taken. The relevance of the Applicant’s delay is of importance for three (3) reasons, according to Mr. Rose-Innes (SC), namely:

(a) Section 7 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) requires proceedings for judicial review to be instituted without unreasonable delay and within 180 days after the date on which the grievant became aware of the administrative

action and the reasons for it or the date on which the grievant might reasonably to have become aware of the administrative action. I have been referred in this regard to Nel and Others v The Minister of Environmental Affairs and Others, a CPD case number 2888/2003 (unreported) and to the Best Aquaculture CC and Another v The Minister of Environmental Affairs and Tourism and Another, also a CPD case number 6719/2002 (unreported). In above case the institution of a review after periods of respectively eleven (11) months and a year was considered to be unreasonably delayed and the applications were dismissed on that basis, the Court remarking in the first mentioned case that:

“Having regard to the needs of all parties in the fishing industry, and its seasonal nature, 180 days is already a long time to take Ministerial decisions on review. It is quite possibly a longer period than would have been permitted in most comparable situations under the common law before the new Act came into force. The complaint of Applicant was a simple one, and to wait from May or July 2002 until April 2003 is not deserving of condonation ‘in the interests of justice’.”

In Mr. Rose-Innes’ (SC) submission similar considerations apply in the present matter.

(b) Given the delay, argued Mr. Rose-Innes (SC) further, a review Court may, in the exercise of its discretion, decide not to set aside the building plans, even if they were not lawfully approved. He emphasised that a Court has discretion in review proceedings not to set aside a decision, even if unlawful. In this regard I was referred to Chairperson: Standing Tender Committee and Others v JFE Sapela Electronics (Pty) Ltd and Others [2005] 4 ALL SA 487 (SCA) where the Court held as follows:

“[28] In appropriate circumstances a court will decline, in the exercise of its discretion, to set aside an invalid administrative act. As was observed in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 SCA para 36 at 246D: ‘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.’ A typical example would be the case where an aggrieved party fails to institute review proceedings within a reasonable time. See eg Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A); see also s 7(1) of PAJA which gives statutory recognition to the rule. In a sense, therefore, the effect of the delay is to ‘validate’ what would otherwise be a nullity. See Oudekraal Estates (Pty) Ltd, supra, para 27 at 242E-F. In the present case, as I have found, there was no culpable delay on the part of the respondents. But the object of the rule is not to punish the party seeking the review. Its raison d’être was said by Brand JA in Associated Institutions Pension Fund v Van Zyl 2005 (2) SA 302 (SCA) at para 46 to be twofold: ‘First, the failure to bring a review within a reasonable time may cause prejudice to the respondent. Secondly, there is a public interest element in the finality of administrative decisions and the exercise of administrative functions.’ Under the rubric of the second I would add considerations of pragmatism and practicality.”

[12] Finally I was referred to Schweizer Reneke Vleis Mkpy (Edms) Bpk v Die Minister van Landbou en Andere 1971 (1) PH F11 (T) where the Court stated that:

“Volgens die gegewens voor die Hof wil dit vir my voorkom dat die applikant alreeds vir meer as 'n maand weet van die toedrag van sake waarteen daar nou beswaar gemaak word. Die aangeleentheid het slegs dringend geword omdat die applikant getalm het en omdat die tweede respondent, soos die applikant lankal geweet het, of moes geweet het, van die besigheid in Schweizer-Reneke

ge-open het. Die applikant mag gewag het vir inligting van die eerste respondent soos in die skrywe aangevra maar dit was geensins nodig vir die doeleindes van hierdie aansoek, wat op die nie-nakoming van die audi alteram partem-reël gebaseer is, om solank te wag om die Hof te nader nie.”

I deal with these submissions infra.

Mr. Rosenberg (SC) contended that the building approval was plainly unlawful on three (3) basis, namely:

The building control officer’s failure to put up a reasoned recommendation;

The failure to comply for a necessary departure in respect of the garage setback;

The fact that the second level does not qualify as a basement in terms of the scheme regulations.

NO REASONED RECOMMENDATION BY THE BUILDING CONTROL OFFICER

[13] In terms of section 6 (1) (a) of the Act the building control officer is obliged to make recommendations to the local authority in question regarding any application to build which has been submitted in terms of section 4 (3). Such recommendation is required to be considered by the local authority in terms of section 7 (1) of the Act, when it determines an application for building approval. Section 7 of the Act has been quoted earlier on in this Judgment. In Walele v The City of Cape Town and Others [2008] ZACC 11, the Constitutional Court addressed the requirements of section 6 and section 7 of the Act, holding that the building control officer is obliged to make a reasoned recommendation to the decision-maker. What in fact occurred in that matter (in accordance with the City’s long established practice) was that the building control officer had made an endorsement in the relevant block of the form utilised, recording above his signature the mere fact of his endorsement. As pointed out by the Constitutional Court, the decision-maker must be satisfied of two things before granting building approval. The first is that there is compliance with the necessary legal requirements. Secondly, the decision-maker must also be satisfied that none of the disqualifying factors in section 7 (1) (b) (ii) will be triggered by the erection of the building concerned. The purpose of the recommendation is to furnish the decision-maker with a basis for his or her opinion one way or the other and it is the proper means by which information on the disqualifying factors is to be placed before the decision-maker. I bear in mind that in Searle’s case supra the Court described the second phase of the enquiry that a local authority is required to undertake in terms of section 7 (1) (b) (ii), after it is satisfied that the building plans submitted comply with the requirements of the Act and any other applicable law, as being in the nature of a sensitivity assessment, to ensure that the erection of the contemplated building will not be an unreasonable use of the property in question, having regard to the rights of the neighbours. The Court went on in Searle’s case to hold that reasonable in this context would equate to the connotation of the word in neighbour law. It pointed out that

insofar as it was contended with reference to the minority judgment of O’Regan J in Walele’s case that any building development within the parameters permitted in terms of the applicable zoning scheme could not result in a derogation from value within the meaning of the Act, it could not go along with this proposition. The Court noted that it was quite conceivable that a building might be technically compliant with the zoning scheme, and yet still constitute, by reason of its particular characteristics or placement on the erf in question, an unreasonable user vis-à-vis the neighbours. In the court’s view, this much was implicitly recognised in the majority judgment’s characterisation of the role of the local authority as the guardian of the neighbours’ interests.

[14] In Mr. Rosenberg SC’s submission the present matter is pre-eminently one where the sensitivity assessment had to be carefully and properly addressed. It has been brought to my attention that the building being constructed is controversial by any reckoning. Because it is being constructed on five levels in an area where views of ocean and mountain are highly prized, there was an obvious need for a proper sensitivity assessment. Mr. Rose-Innes (SC) submitted that reliance by the Applicants on Walele case was nothing but being opportunistic. The fact of the matter is that apart from the Third Applicant, others similarly claimed that their amenities were negatively affected. It is important to note that the First Applicant (the representative body of the residents and ratepayers in the area) has considered it necessary to take up the matter on behalf of its members. It is reasonable, in my view, to assume that the First Applicant has a duty to its members not to embark upon litigation lightly and that it should instead husband its resources. In my view, even in this matter a sensitivity assessment was crucial and hence the need for compliance with section 6 (1) of the Act was particularly necessary, namely:

“6 (1) A building control officer shall –

make recommendations to the local authority in question, regarding any plans, specifications, documents and information submitted to such local authority in accordance with section 4 (3).”

The Respondents’ response hereto is that the rider plans were supported by a reasoned recommendation. The fact of the matter is that the rider plans related only to confined alterations, and such recommendations would necessarily have related to the subject material of the rider plans. Importantly the rider plan approval is supplementary approval in respect of damages or alterations to the principal plan. If the approval of the plans themselves was bad in law (in that, for an example, there was no reasoned recommendation addressing the sensitivity assessment) subsequent approval of limited alterations cannot rescue the unlawfulness of the principal approval.

[15] The Respondents contended that this review ground can only result in the reconsideration of the plans by the City with reference to a motivated recommendation and that it cannot serve as a basis for an interim interdict against completion of the building. In

my view, the prospects are good that the point will be successful in the review. That will very well mean that the approval should be set aside and should that happen, the Respondents’ building will be rendered unlawful. In the words of Conradie J in Beck’s case supra, if it is reasonably plain that the building works will be found to be unlawful, the sooner construction is stopped the better. Walele case supra merely served to make it clear what did and did not qualify as a recommendation for the purpose of section 6 (1) of the Act. Evidently

no question of retrospectivity arose which required to be dealt with by the Court.

NO APPLICATION MADE FOR NECESSARY DEPARTURE IN RESPECT OF THE GARAGE SETBACK

[16] The extent to which the extended portion of the garage encroaches over the street building line is set out in detail in Mr. Brummer’s Affidavit, as is the extent to which the height of the garage exceeds the three (3) metre limit contained in section 49

(1) of the zoning scheme regulations. Whereas the garage should be set back by some 3,6m from the street boundary, the actual distance is between 1,25m and 1.29m, which is in contravention of section 49 (1) of the zoning scheme regulations. For the sake of completeness I set out infra the provisions of section 49 (1) of the Zoning Scheme Regulations (as per General Amendment of the Scheme Regulations dated 29 June 1990 official Gazette 4649):

“49 (1) Notwithstanding the provisions of sections 46 and 47, a garage may be erected nearer to the street boundary than the distance prescribed by such provisions, if both the following conditions are complied with –

The height of such garage shall not exceed 3m.

The garage shall not be nearer to the street boundary than the distance x calculated from the following formula, or 1,5m, whichever is the greater, viz – x=6m – (a+b)

where

“a” is the difference in level in metres between the natural ground level at a point on the centre line of the garage and 1,5m from the street boundary and the mean street level at points opposite such garage.

“b” is the difference in level in metres between the natural ground level at a point on the centre line of the garage and 7,5m from the street boundary and the mean street level at points opposite such garage.”

From the above it is clear that the building approval was granted in circumstances where the plans infringed the zoning scheme regulations. The only basis upon which the plans could have been approved was if the necessary departure from the Zoning Scheme Regulations had been sought and granted prior to plan approval. In terms of the Zoning Scheme Regulations absent any such departure having been applied for and granted, the City was obliged to refuse approval of the plans.

THE SECOND LEVEL (DOES IT QUALIFY AS A BASEMENT?)

[17] Section 53 of the zoning scheme regulations reads as follows:

‘No building which is a Dwelling House or Double Dwelling House or Outbuilding thereto shall exceed three storeys in height.’

Section 65 of the zoning scheme regulations makes provision for mezzanine and basement storeys to be disregarded in counting the number of storeys, and reads as follows:

‘In determining the number of storeys in a building, and in determining the designation of a particular storey, for the purposes of this Chapter or any other Chapter, the following provisions shall apply –

(a) Basement storeys and mezzanine storeys shall be disregarded in counting the number of storeys.

(b) Any storey (not being a basement or mezzanine storey) having a floor-to-ceiling height exceeding 4,8m shall be taken as two storeys; if exceeding 7,2m three storeys, and so on; provided that where the floor or ceiling of a storey is not level, or has different levels, the mean level shall be taken.’

The approved plans in respect of the dwelling purport to justify the five storey building as being in accordance with the provisions of the zoning scheme regulations on the basis that the lower two storeys are depicted as basement storeys. If correct (which is denied by the Applicants) this would mean that two of the five storeys can be disregarded in counting the storeys in terms of section 65 (a). The method of calculation applied on behalf of the Respondents may have been fundamentally incorrect as Mr. Rosenberg (SC) submitted. The City in Mr. Rosenberg SC’s submission failed to take the relevant factors into account in assessing the calculations relating to that which he named as “the so-called basement”. The basis for providing a basement calculation appears in the following definitions:

‘ “basement storey”, in relation to a building or a division of a building, means any storey thereof, the ceiling level of which is not more than 1,0m above the mean level of the ground;’

The ‘mean level of the ground’ is of vital importance in determining whether a basement qualifies as a basement or not. If a storey is not a basement, then it must be included in counting the number of storeys in a building. Accordingly it is essential for the land surveyor to take into

account the definition of mean level of the ground which reads as follows:

‘“mean level of the ground” means –

(a) for the purpose of defining which storey of a building or a division thereof is the basement storey, the ground storey and so on: the mean level of the ground immediately abutting such building or division, averaged around the perimeter of such building or division;

(b) for the purpose of determining the height of a building or portion thereof in order to apply any provision of the Scheme other than one referred to in paragraph (c): the mean level of the ground determined as in paragraph (a); and

(c) for the purpose of determining the height of a point on a building or a division thereof in order to apply any provision of the Scheme which limits the height of such point in relation to its distance from a boundary: the mean level of the ground immediately abutting that elevational plane of such building or division which contains such point or lies between such point and the boundary concerned, averaged along such elevational plane’

[18] According to Mr. Rosenberg (SC), the calculations prepared on behalf of the Respondents did not average the level of the ground around the perimeter of the building, but instead averaged the perimeter of the upper basement only. The experts in this regard

differ. I mean the Applicants’ land surveyor (Mr. Lewis) and the Respondents’ expert (Mr. Saunders). It is important to note,

however, that paragraph (b) of the definition of mean ground level refers to a portion of a building whilst paragraph (a) (which is the applicable provision in the instant matter) makes no mention of a portion. On the contrary, paragraph (a) refers to divisions of a building. Divisions are dealt with in section 71 (1) which reads as follows:

‘In this Chapter a “division” of a building means a portion thereof bounded entirely by one or more external walls and one or more imaginary vertical planes, each of which extends continuously has heading which reads:

‘HEIGHT AND SPACES ABOUT BUILDINGS OTHER THAN DWELLING HOUSES, DOUBLE DWELLING HOUSE, GROUPS OF DWELLING HOUSES AND OUTBUILDINGS THERETO’

The Zoning Scheme Regulations do not make provision for portions or divisions of dwelling houses to be assessed independently of the building of which they form a part. I take into account that according to the Respondents the methodology relied on by the Applicants is not used by the City. Mr. Rose-Innes (SC) compared the attack on the methodology (used by the City) as falling within the type of attack made in a Replying Affidavit described by the Supreme Court of Appeal in Administrator, Transvaal, and Others v Theletsane and Others [1990] ZASCA 156; 1991 (2) SA 192 (A).

IRREPARABLE HARM AND BALANCE OF CONVENIENCE

[19] Mr. Rose Innes (SC) submitted that the Applicants will suffer no harm should this interdict not be granted. He referred me to National Council of SPCA v Openshaw [2008] ZASCA 78; 2008 (5) SA 339 (SCA) at para (20) and (22) of that Judgment where the following appears:

"An interdict is not a remedy for past invasion of rights but is concerned with present or future infringements. It is appropriate

only where future injury is feared. Where a wrongful act giving rise to the injury has already occurred, it must be of a continuing nature or there must be a reasonable apprehension that it will be repeated."

and at para 22

"If the infringement complained of is one that prima facie appears to have occurred once and for all, and is finished and done with, then the applicant should allege facts justifying a reasonable apprehension that the harm is likely to be repeated."

The above must be understood against the backdrop of submissions by Mr. Rosenberg (SC) on behalf of the Applicants. I cite Mr. Rosenberg SC’s submission in this regard infra:

“The harm which the Applicants rely on is the inevitable tendency for a completed building to serve as a bias in favour of regularisation applications being approved and, in addition, the understandable disinclination to order the demolition of completed work. The Respondents for their part can point to no irreparable harm at all. They refer, however, to the inconvenience that an interim interdict will cause them. In the light of the Applicants’ undertaking to co-operate in achieving the expedited hearing of the review application, the matter should not be approached on the basis that the application will take two years to finalise. It bears noting, furthermore, that the Respondents’ contention that they will be forced, if an interim interdict is granted, ‘to live in an unfinished first and second floor’ is not readily reconcilable with their allegations (in paragraph 18 of their answering affidavit) to the effect that the house is all but complete.”

[27] In my understanding the chief complaint in the instant matter is the erection of the fourth floor. It is common cause that this particular floor is still under construction. The Applicants contend that the construction of the dwelling is not proceeding within the height parameters of the approved plans. I am told that at present the dwelling is some 27cm higher than the approved plans permit it to be. The methodology used by Mr. Lewis (Applicants’ expert) was to survey the actual height of the various levels of the dwelling and then to compare these to the floor levels provided on the approved architectural plans. I agree that on a proper construction of section 4 (1) of the Act, no person is permitted to build otherwise than in conformity with building plans approved in terms of section 7 (1) of the Act. If it is accepted as true that the Respondents are busy building this particular dwelling otherwise than in conformity with the plans approved, I fail to see why they should not be interdicted from carrying out any further work which constitutes a deviation from such approved plans. It is not correct to equate the building works in the instant matter to an infringement that prima facie appears “to have occurred once and for all and is finished and done with.” The building work in my understanding of the papers is far from finish. The building activities can therefore still be stopped so as to embark on a legal process to verify the legality thereof. In my view, there is, in this case more than enough justification that I should hold that the Applicants have made out a compelling case. I would, accordingly, justifiably, exercise my discretion in favour of granting the interim relief sought.

ORDER

[28] In the circumstances I make the following order:

That pending the determination of an application for inter alia to review and set aside the City’s purported approval of building plans in respect of erf 1421 Camps Bay in terms of section 7 of the National Building Regulations and Building Standards Act 103 of 1977, the First and Second Respondents are hereby interdicted and restrained from proceeding with any further building work or construction on the dwelling.

The contemplated Review application shall be launched by the Applicants within twenty one (21) days calculated as from the date of this order.

Should the Applicants fail to launch the Review proceedings referred to in (b) supra within twenty one (21) days mentioned in (b) supra, the relief granted in (a) supra shall fall away and be of no further force and effect.

The costs attendant upon this application including those occasioned by the employment of two (2) counsel shall stand over for determination in the contemplated Review proceedings.

________________

DLODLO, J

Hely