Gees v Provincial Minister of Cultural Affairs and Sport, Western Cape and Others

• Jurisdiction: South Africa
• Citation: 2017 (1) SA 1 (SCA)

Gees v Provincial Minister of Cultural Affairs and Sport, Western Cape and Others
2017 (1) SA 1 (SCA)

2017 (1) SA p1

Citation	2017 (1) SA 1 (SCA)
Case No	974/2015; [2015] ZASCA 136
Court	Supreme Court of Appeal
Judge	Maya DP, Bosielo JA, Seriti JA, Fourie AJA and Dlodlo AJA
Heard	September 15, 2016
Judgment	September 29, 2016
Counsel	SP Rosenberg SC (with K Reynolds) for the appellant.; I Jamie SC (with PS van Zyl) for the respondents.

Flynote: Sleutelwoorde B

National monuments — Buildings of historical interest — Alteration or demolition C — Building older than 60 years — No formal heritage status — Heritage authority granting demolition permit on condition that new development in harmony with existing building's (i) town-planning envelope and (ii) façade — Conditions lawfully imposed — National Heritage Resources Act 25 of 1999, s 34(1) and s 48(2).

Headnote: Kopnota

The appellant, who wanted to redevelop property with an unwanted building on D it, sought a demolition permit from Heritage Western Cape (HWC, the third respondent). Neither the property nor the building had formal heritage protection under the National Heritage Resources Act 25 of 1999 (the Act), but the building's 60-years-plus age meant that demolition would require a permit under s 34(1) read with s 48(2) of the Act. The parties agreed that, E while the building was not worthy of protection, the surrounding area was, due to its large concentration of art deco buildings, conservation-worthy. The City of Cape Town (the City) was at the time conducting a survey of the area in order to convert it into a 'heritage protection overlay zone' (HPOZ). This would mean, inter alia, that approval would be required for the addition of new buildings. The City also graded the building a proposed IIIC for its 'contribution to the significance of [its] surrounding area'. F

After initially refusing permission to demolish, HWC in a subsequent appeal to its appeals tribunal granted the requested permit, but on condition that (i) the development not exceed 'the town-planning envelope' of the existing building; (ii) the materials used in the new façade were 'in keeping' with the existing building; and (iii) building plans were submitted to HWC for approval before work was commenced. G

2017 (1) SA p2

A The appellant sought a High Court order setting aside the imposed conditions, alternatively directing the responsible provincial minister (the first respondent) to reconsider the appeal. The High Court refused the application and the appellant appealed to the Supreme Court of Appeal, arguing that the third respondent had exceeded its powers under s 48(2) of the Act. He argued that the Act did not authorise Heritage officials granting B demolition permits to impose conditions on the development of property that had no formal heritage status.

Held

The word 'including' in s 48(2) meant that the tribunal had a wide discretion to impose conditions on the issuing of permits (see [17], [18]). In the present case the heritage resources the authorities were bound to protect extended C beyond the building or property to the surrounding area with its large complement of art deco buildings, which were worthy of protection and recognised as such by the City (see [23]). Although the proposed designation of the area as a heritage area required further refinement and engagement between the owner and the public, that was an ongoing process D that would in the near future result in its formal protection (see [24]). Where a heritage resource was potentially affected by an application brought under the Act, heritage authorities were obliged to impose such conditions as the Act would permit for the conservation of the affected area, even if that area were unprotected (see [25], [28]). Since the present conditions were clearly designed to enable HWC to fulfil its duties under the E Act, they were lawfully imposed (see [29]). While they to a certain extent constituted a deprivation of the appellant's property rights, the imposed conditions accorded with the conservation mandate of the HWC under the Act and were directly in line with its principles (see [33]). In the circumstances there was no arbitrary deprivation of the appellant's rights of ownership: the imposition of the conditions was reasonable and equitable, F having regard to the inherent responsibility of the appellant towards the community in the exercise of his entitlements as owner of the property in question (see [34]). Appeal dismissed.

Cases cited

Corium (Pty) Ltd and Others v Myburgh Park Langebaan (Pty) Ltd and Others 1993 (1) SA 853 (C): dictum at 858E – F applied

Dibowitz v Commissioner for Inland Revenue 1952 (1) SA 55 (A): dictum at 61B – D applied G

Diepsloot Residents' and Landowners' Association and Another v Administrator, Transvaal 1994 (3) SA 336 (A): dictum at 349C – J applied

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others H 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458; [1998] ZACC 17): dictum in para [56] applied

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) (2002 (7) BCLR 702; [2002] ZACC 5): dicta in paras [57] – [60] applied

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): dictum in para [50] applied I

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) (2004 (12) BCLR 1268; [2004] ZACC 7): dictum in para [23] applied

Qualidental Laboratories (Pty) Ltd v Heritage Western Cape and Another 2007 (4) SA 26 (C): J dictum at 37C – E applied

2017 (1) SA p3

Qualidental Laboratories (Pty) Ltd v Heritage Western Cape and Another A 2008 (3) SA 160 (SCA): dictum in para [9] applied

Vorster and Another v Department of Economic Development, Environment and Tourism, Limpopo Province, and Others 2006 (5) SA 291 (T): dicta in paras [17] – [18] applied.

Legislation cited B

The National Heritage Resources Act 25 of 1999, s 34(1): see Juta's Statutes of South Africa 2015/16 vol 7 at 1-357.

Case Information

SP Rosenberg SC (with K Reynolds) for the appellant.

I Jamie SC (with PS van Zyl) for the respondents.

An appeal against a decision in the Western Cape Division, Cape Town C (Weinkove AJ). The appeal was dismissed (para [36]).

Judgment

Fourie AJA (Maya DP, Bosielo JA, Seriti JA and Dlodlo AJA concurring)

[1] The issue in this appeal is whether the National Heritage Resources Act D 25 of 1999 (the Act) authorises a provincial heritage resources authority, when granting a permit for the demolition of an entire structure which is older than 60 years, situated on a property with no formal heritage status, to lawfully impose conditions controlling future development on the property. E

[2] The appellant is the registered owner of all the sections in a sectional title scheme comprising the land and a small block of flats (the structure) on Erf 1444, Vredehoek, Cape Town (Erf 1444), situated at 24 Davenport Road, Vredehoek. The appellant intends to redevelop Erf 1444 and this requires the demolition of the structure. As the structure is more F than 60 years old, s 34(1) of the Act prohibits its demolition without a permit issued by the third respondent, Heritage Western Cape (HWC).

[3] The appellant's application for a demolition permit was considered by HWC's Built Environmental and Landscape Permit Committee at a meeting on 24 July 2013, and was refused. The appellant appealed to G HWC's appeals committee, which refused the appeal on 18 September 2013.

[4] The appellant then lodged an appeal with the first respondent, the provincial Minister of Cultural Affairs and Sport, Western Cape (the MEC). On 21 January 2015, the appeal tribunal appointed by the MEC H in terms of s 49(2) of the Act upheld the appeal and granted the demolition permit, subject to the following conditions —

'(a)

that the new development on the site shall not exceed the town-planning envelope of the existing building;

(b)

that the materials used for the façade of the new building are in keeping with the existing building; I

(c)

that building plans for the new structure are submitted to Heritage Western Cape for its approval prior to any work commencing on site'.

[5] Aggrieved by the imposition of these...