Habitat Council v BPH Properties (Pty) Ltd (A388/17) [2018] ZAWCHC 98 (17 August 2018)

Habitat Council v BPH Properties (Pty) Ltd (A388/17) [2018] ZAWCHC 98 (17 August 2018)

The court found that the delay of 852 days in bringing the review application was gross and unjustified. The explanation provided by BPH Properties (Pty) Ltd did not cover the entire period and was not reasonable. The subsequent grading of the property did not affect the validity of the IAT's decision, which was based on heritage significance under section 34 of the National Heritage Resources Act. The IAT's recommendation and advice did not constitute a reviewable irregularity, as they were not binding instructions and could only be implemented if lawful. The interests of justice did not require condonation, as the delay undermined the finality of administrative decisions and prejudiced...

Citation
[2018] ZAWCHC 98
Parties
Appellant: Habitat Council; Respondent: BPH Properties (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 August 2018
Case Number
A388/17
Procedural Posture
Civil Appeal / Appeal From the Western Cape High Court, First Instance
Outcome
Appeal upheld; order of the court a quo set aside; application dismissed with costs.
Judges
Ndita, Rogers, Savage
Legal Topics
Promotion of Administrative Justice Act, Heritage Resource Protection, Delay in Review Applications, Condonation, Demolition Permits
Administrative Law Land and Property Promotion of Administrative Justice Act Heritage Resource Protection Delay in Review Applications Condonation Demolition Permits

Case Brief

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Parties

Habitat Council

Appellant

BPH Properties (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From the Western Cape High Court, First Instance

Legal Issues

  1. 1 Whether the delay of 852 days in bringing the review application should be condoned under section 9(1) of PAJA.
  2. 2 Whether the explanation for the delay provided by BPH Properties (Pty) Ltd was reasonable and covered the entire period.
  3. 3 Whether the subsequent grading of the property affected the validity of the IAT's decision.

Ratio Decidendi

The court found that the delay of 852 days in bringing the review application was gross and unjustified. The explanation provided by BPH Properties (Pty) Ltd did not cover the entire period and was not reasonable. The subsequent grading of the property did not affect the validity of the IAT's decision, which was based on heritage significance under section 34 of the National Heritage Resources Act. The IAT's recommendation and advice did not constitute a reviewable irregularity, as they were not binding instructions and could only be implemented if lawful. The interests of justice did not require condonation, as the delay undermined the finality of administrative decisions and prejudiced...

Court Disposition

Appeal upheld; order of the court a quo set aside; application dismissed with costs.

Orders

  • The appeal is upheld with costs, including the costs of the application for leave to appeal in the court a quo and the application for leave to appeal brought in the Supreme Court of Appeal.
  • The order of the court a quo is set aside and replaced with an order: 'The application is dismissed with costs.'