Trustees of the Simcha Trust v Da Cruz and Others; City of Cape Town v Da Cruz and Others (CCT125/18; CCT128/18) [2019] ZACC 8; 2019 (3) SA 78 (CC); 2019 (5) BCLR 648 (CC) (19 February 2019)

Trustees of the Simcha Trust v Da Cruz and Others; City of Cape Town v Da Cruz and Others (CCT125/18; CCT128/18) [2019] ZACC 8; 2019 (3) SA 78 (CC); 2019 (5) BCLR 648 (CC) (19 February 2019)

The Constitutional Court held that the legitimate expectations test is the appropriate means to establish the existence of disqualifying factors under section 7(1)(b)(ii)(aa) of the National Building Regulations and Building Standards Act. This test applies to all disqualifying factors, including disfigurement,...

Source-derived case information.

Citation
[2019] ZACC 8
Parties
Applicant: Trustees of the Simcha Trust; Respondent: Joao Jose Ribeiro Da Cruz; Respondent: Body Corporate of the Four Seasons Sectional Title Scheme; Respondent: City of Cape Town
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
19 February 2019
Case Number
CCT125/18; CCT128/18
Procedural Posture
Leave to Appeal / Constitutional Court Judgment on Consolidated Applications for Leave to Appeal
Outcome
Leave to appeal granted; appeals dismissed; costs awarded against applicants.
Judges
Mogoeng, Basson, Cameron, Dlodlo, Froneman, Goliath, Khampepe, Mhlantla, Petse, Theron
Legal Topics
Building Regulations, Legitimate Expectation, Promotion of Administrative Justice Act, Municipal Discretion, Review of Administrative Action, Disqualifying Factors
Administrative Law Land and Property Civil Procedure Building Regulations Legitimate Expectation Promotion of Administrative Justice Act Municipal Discretion Review of Administrative Action +1 more

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Parties

Trustees of the Simcha Trust

Applicant

Joao Jose Ribeiro Da Cruz

Respondent

Body Corporate of the Four Seasons Sectional Title Scheme

Respondent

City of Cape Town

Respondent

Procedural Posture

Leave to Appeal / Constitutional Court Judgment on Consolidated Applications for Leave to Appeal

Legal Issues

  1. 1 Does the legitimate expectations test apply to all disqualifying factors in section 7(1)(b)(ii)(aa) of the National Building Regulations and Building Standards Act?
  2. 2 Did the decision makers apply the correct legal test when considering the disqualifying factors under the Act?
  3. 3 Is the legitimate expectations test the appropriate means to establish the existence of disqualifying factors in building plan approvals?

Ratio Decidendi

The Constitutional Court held that the legitimate expectations test is the appropriate means to establish the existence of disqualifying factors under section 7(1)(b)(ii)(aa) of the National Building Regulations and Building Standards Act. This test applies to all disqualifying factors, including disfigurement, unsightliness, and derogation in value, and requires the decision maker to be positively satisfied that none of these factors are present, separate from zoning compliance. The legitimate expectations test is objective and does not impose additional consultation duties on the municipality beyond existing legal requirements. The Court found that the decision makers in the present...

Court Disposition

Leave to appeal granted; appeals dismissed; costs awarded against applicants.

Orders

  • Leave to appeal is granted in both applications.
  • The appeals are dismissed in both applications.