Camps Bay Residents and Ratepayers Association v Augoustides

• Jurisdiction: South Africa

Camps Bay Residents and Ratepayers Association v Augoustides
2009 (6) SA 190 (WCC)

2009 (6) SA p190

Citation	2009 (6) SA 190 (WCC)
Case No	2005/2009
Court	Western Cape High Court, Cape Town
Judge	Dlodlo J
Heard	February 26, 2009
Judgment	March 24, 2009
Counsel	SP Rosenberg SC (with M Blumberg) for the applicants.; LA Rose-Innes SC (with HJ de Waal) for the first and second respondents.

Flynote : Sleutelwoorde B

Interdict — Interim interdict — Pending review — Building works — Interim cessation of building works pending review of approval of building plans — C Applicable principles set out — Building work alleged to be undertaken in non-compliance with approved plans and being far from complete — Interim interdict granted.

Headnote : Kopnota

The first and second respondents purchased an immovable property on which D was built a three-level dwelling. They subsequently submitted plans for the construction of a five-level dwelling on the property, which were approved by the third respondent local authority (the City) in terms of s 7 of the National Building Regulations and Building Standards Act 103 of 1977. Aggrieved at the proposed construction of a five-level dwelling on the property, the applicants (being owners and/or occupiers of properties E adjoining that of the first and second respondents) launched an application in the High Court for an order setting aside the City's approval of the first and second respondents' plans and for an order interdicting the building construction in respect of the uppermost level of the development. The applicants alleged that the building approval was unlawful on three bases, namely: (1) the building control officer's failure to put up a reasoned F recommendation; (2) the failure to apply for a necessary departure in respect of the garage setback; and (3) the fact that the second level did not qualify as a basement in terms of the zoning scheme regulations. Pending determination of their application for review, the applicants brought an interlocutory application to interdict the first and second respondents from G proceeding with any further building work or construction on the dwelling. The first and second respondents resisted the interlocutory application on the basis, inter alia, that the renovations to the dwelling were 95% complete at the time of the signing of the notice of motion, so that the interdict sought would no longer serve the purpose of preventing the alleged wrongs from being committed.

H Held, that the principles applicable to interim cessation of building works pending review were the following: (1) the prospects of success in the contemplated review proceedings represented the measure of strength or otherwise of the alleged right that the applicants had to establish, prima facie, in order to obtain interim relief; (2) the stronger the prospects of success in the review proceedings (ie the prima facie right), the greater the I subordination of prejudice occasioned by a cessation of the building work. Otherwise stated, the principle of legality tended to operate decisively; (3) if the applicants were likely to be proved right in the review proceedings, it was desirable that the building operations be stopped immediately; and (4) important purposes and functions of granting interim relief in context were, first, to prevent the respondents from building themselves into an impregnable J position by the time the review was heard and, second, to prevent the

2009 (6) SA p191

bias exercised by a completed (but unlawful) structure towards the favourable A 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'. (Paragraph [10] at 196J - 197G.)

Held, further, that the chief complaint in the present matter was the erection of the fourth floor. The floor was still under construction. If it were accepted as true, as alleged by the applicants, that the respondents were busy B building the dwelling otherwise than in conformity with the plans approved, they had to be interdicted from carrying out any further work which constituted a deviation from such approved plans. The building work was far from finished. The building activities could therefore still be stopped so as to embark on a legal process to verify the legality thereof. There was more than enough justification for a finding that the applicants had made out a C compelling case and, accordingly, for an order, in the exercise of the court's discretion, in favour of granting the interim relief sought. (Paragraph [20] at 204F - I.)

Held, accordingly, that pending determination of an application for the review and setting-aside of the City's approval of the building plans, the first and second respondents were interdicted and restrained from proceeding with D any further building work or construction on the dwelling. (Paragraph [21] at 205B.)

Cases Considered

Annotations

Reported cases

Administrator, Transvaal, and Others v Theletsane and Others 1991 (2) SA 192 (A): referred to E

Chairperson: Standing Tender Committee and Others v JFE Sapela Electronics (Pty) Ltd and Others 2008 (2) SA 638 (SCA) ([2005] 4 All SA 487): referred to

Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 (3) SA 685 (A): dictum at 691F - G applied F

Fourie v Uys 1957 (2) SA 125 (C): dictum at 127H - 128D applied

Knox D'Arcy Ltd and Others v Jamieson and Others 1995 (2) SA 579 (W): dictum at 592H - 593B applied

Knox D'Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A) ([1996] 3 All SA 669): dictum at 362B - C applied

Ladychin Investments (Pty) Ltd v South African National Roads Agency Ltd G and Others 2001 (3) SA 344 (N): applied

LF Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v LF Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C): dictum at 267E - F applied

National Council of Societies for the Prevention of Cruelty to Animals v Openshaw 2008 (5) SA 339 (SCA): referred to H

Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D): dicta at 383A - C and 383D - F applied

Payen Components SA Ltd v Bovic CC and Others 1995 (4) SA 441 (A): referred to

Philip Morris Inc and Another v Marlboro Shirt Co SA Ltd and Another 1991 (2) SA 720 (A): referred to I

Pietermaritzburg City Council v Local Road Transportation Board 1959 (2) SA 758 (N): dictum at 772C - E applied

PS Booksellers (Pty) Ltd and Another v Harrison and Others 2008 (3) SA 633 (C) ([2007] 3 All SA 552): referred to

S v Baloyi (Minister of Justice Intervening) 2000 (2) SA 425 (CC) (2000 (1) SACR 81; 2000 (1) BCLR 86): referred to J

2009 (6) SA p192

Schweizer Reneke Vleismaatskappy (Edms) Bpk v Die Minister van Landbou en Andere 1971 (1) PH F11 (T): referred to A

Setlogelo v Setlogelo 1914 AD 221: dictum at 227 applied

Stauffer Chemicals Chemical Products Division of Chesebrough-Ponds (Pty) Ltd v Monsanto Company 1988 (1) SA 805 (T): referred to

Transnet Bpk h/a Coach Express en 'n Ander v Voorsitter, Nasionale Vervoerkommissie, B en Andere 1995 (3) SA 844 (T): applied

Van der Westhuizen v Butler 2009 (6) SA 174 (C): referred to

Walele v The City of Cape Town and Others 2008 (6) SA 129 (CC) (2008 (11) BCLR 1067): applied

Webster v Mitchell 1948 (1) SA 1186 (W): dictum at 1189 applied.

Unreported cases C

Beck and Others v Premier of the Western Cape (CPD case No 12596/96, 11 October 1996, Conradie J): referred to

Best Aquaculture CC and Another v Minister of Environmental Affairs and Tourism and Another (CPD case No 6719/2002): referred to

Camps Bay Residents and Ratepayers Association and Another v Avadon 23 D (Pty) Ltd and Another (CPD case No 17364/05, 18 March 2005, Foxcroft J): referred to

Nel and Others v The Minister of Environmental Affairs and Others (CPD case No 2888/2003): referred to

Searle v Mossel Bay Municipality and Others (CPD case No 1237/09, 12 February 2009, Binns-Ward AJ): dicta in paras [6] and [11] applied.

Statutes Considered

Statutes E

The National Building Regulations and Building Standards Act 103 of 1977, ss 6 and 7: see Juta's Statutes of South Africa 2008/9 vol 2 at 2-336 - 2-337.

Case Information

F Application for an interim interdict pending review. The facts appear from the judgment of Dlodlo J.

SP Rosenberg SC (with M Blumberg) for the applicants.

LA Rose-Innes SC (with HJ de Waal) for the first and second respondents.

G No appearance for the third respondent.

Cur adv vult.

Postea (March 24).

Judgment

Dlodlo J: H

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 I seek the cessation of building works currently under way 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 s 7 of the National Building Regulations and Building Standards Act 103 of 1977 (the Act) in respect of the dwelling under J construction on the property. The final interdict seeks the prohibition of

2009 (6) SA p193

Dlodlo J

the building construction in respect of the uppermost level of the A 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, B Camps Bay. The first and second respondents are joint registered owners of Erf 1421, Camps Bay (the respondents' property). The City cited as...