True Motives 84 (Pty) Ltd v Mahdi and Another

• Jurisdiction: South Africa
• Judge: Scott JA, Cameron JA, Heher JA, Jafta JA and Combrinck JA
• Judgment Date: 03 March 2009
• Citation: 2009 (4) SA 153 (SCA)
• Docket Number: 543/07
• Hearing Date: 28 August 2008
• Counsel: PM Kennedy SC for the appellant. No appearance for the first respondent. AE Franklin SC (with DL Wood) for the second respondent. PJ Olsen SC (with AA Gabriel) for the amicus curiae.
• Court: Supreme Court of Appeal

Heher JA: D

[1] This appeal involves the duties of a local authority to which plans and specifications are submitted in terms of s 4(1) [1] of the National Building Regulations and Building Standards Act 103 of 1977 (the Act), and more particularly the proper interpretation of s 7(1) [2] of the Act. This is a subject that has arisen on several occasions [3] and the circumstances of D

Heher JA

A this case suggest that local authorities and the public would benefit from a careful exposition of the relevant provisions.

[2] The appellant has been the registered owner of erf 178, Morningside Ext 17, since November 2002. The first respondent has owned the adjoining erf 177 since February of the preceding year. On both B properties there are large dwellings.

[3] The second respondent is the local authority responsible for the administration of the Act.

[4] Mr Louis Birkenstock is a director of the appellant. He resides with C his family on its property. He deposed to the founding affidavit in which the appellant claimed (in its final form) an order declaring that:

'The second respondent has not lawfully approved in terms of s 6, read together with s 7, of [the Act], the application made by the first respondent to the second respondent to approve plans and specifications which were submitted by the first respondent to the second D respondent in terms of s 4 of the Act for the erection of certain alterations adjoining the eastern side of the existing dwelling erected on [the first respondent's property] and which plans were submitted by the first respondent to the second respondent for approval on 28 May 2004 . . . and purportedly approved by the second respondent on 19 June 2005 . . . .'

E [5] In the alternative the appellant sought an order reviewing and setting aside the decision of the second respondent under s 7(1)(a) of the Act to approve the said application.

[6] Although the appellant also claimed against the first respondent F orders for demolition of the building alteration and payment of damages suffered in consequence of an alleged derogation in value of its property caused by the offending alteration, such claims were, for reasons which will appear, no longer in issue in this appeal.

[7] During September 2004 Mr Birkenstock noticed that building G operations had begun on the side of the first respondent's dwelling close to the western boundary of the appellant's property. As work progressed it became apparent that the alterations would be extensive. In the application which the appellant launched in February 2005 Birkenstock alleged that:

(i)

H A structure was being added to the eastern side of the house which would be two and a half storeys high with windows running along that side and the northern face of the lower room.

'A person standing in this room would[so he deposed] have an unobstructed view of the interior of the western side of the I dwelling on [the appellant's property] as well as the recreational area in front of [that] dwelling. . . . [A] person standing in the room and looking through the window in the northern wall would have a similar view.'

(ii)

The uppermost floor of the structure appeared to be designed as a sort of patio enabling persons using it to have an unobstructed view J over surrounding properties, including the appellant's property.

Heher JA

(iii)

The size and position of the alteration blocked out direct sunlight A on and into the western side of the appellant's dwelling, a benefit which it had previously enjoyed until sunset. The rooms of the house were in consequence colder and darker.

(iv)

The alteration was, by reason of its size, design and location, unsightly, objectionable and out of keeping with the architecture of B the suburb.

(v)

The three-metre building line had been encroached on along the eastern side of the first respondent's erf at ground level and above by the construction of a staircase on the outside wall of the alteration.

(vi)

The overall result of carrying out the alterations would violate the privacy of those living on the appellant's property and cause a C substantial derogation in the value of that property. (The appellant filed supporting affidavits by three experts who variously estimated a reduction in value of between half a million and one million rand. The affidavits were omitted from the appeal record. We accordingly have no knowledge of the methods they employed in coming to their D values and the appellant's counsel did not rely on such valuations in arguing the appeal.)

[8] Birkenstock stated that neither of the respondents had notified the appellant of an application for approval of building plans to permit the erection of the alteration. Nor had the second respondent given him E the opportunity to object (which he would have done). In addition, the second respondent took the attitude that it was not obliged to afford sight of the plans to the appellant and declined to do so.

[9] The perceived problem could not be overcome by negotiation.

[10] The appellant applied to the High Court where both respondents F opposed the application. After a careful consideration of the contending arguments Louw AJ dismissed the application with costs.

[11] The learned judge concluded that, in the circumstances of the case, no action lay against the first respondent. He decided in favour of the second respondent that: G

(i)

It was not required to notify the appellant of the receipt of a s 4 application or offer it the opportunity to make representations either as a matter of right or in consequence of a legitimate expectation.

(ii)

It had properly taken into account the possible effects of the H approval of the building application on the market value of the appellant's property and had not been satisfied that a derogation in value would result; in terms of s 7(1) it was therefore obliged to approve the application, as it had done.

(iii)

Mr Dixon, an assistant director in the second respondent's building I control department, who approved the plans, and Mr Mbhele, a plans examiner, who recommended approval, had both been properly authorised to do so.

[12] Louw AJ granted leave to appeal in specific terms, viz:

'1.

That [leave be granted to appeal] to the Supreme Court of Appeal J

Heher JA

A on the issue of whether the decision of the Second Respondent to approve the First Respondent's building plans falls to be reviewed and set aside having regard to:

1.1

The proper interpretation and application of Section 7 of the National Building Regulations and Building Standards Act of 1977. B

1.2

The proper interpretation and application of the provisions of section 3 read with section 6 of the Promotion of Administrative Justice Act 3 of 2000.

1.3

The legality and validity of the purported delegation to C Mr Mbhele.'

He recorded that leave was refused in respect of the dismissal of the claims against the first respondent for demolition and damages.

[13] After the appellant had filed its heads of argument in this court, the D Constitutional Court handed down judgment in Walele. [4] It held, [5] inter alia, that:

1.

A neighbouring owner (even though potentially vulnerable to the effects) is not a party to the process by which approval of building plans is sought and obtained under the Act and is not entitled to be E involved in such process or to inspect plans lodged for approval. The granting of approval cannot, of itself, affect such an owner's rights. 'Administrative action' as contemplated in s 3 of the Promotion of Administrative Justice Act 3 of 2000 does not encompass the subsequent erection of the building. (See paras 31, 32 and 45 of the judgment.)

2.

F The fact that the execution of plans will lead to the erection of a building in a manner that devalues neighbouring properties is, on its own, by reason of s 7 of the Act, a ground of review sufficient to justify the setting aside of the approval of those plans. (In para 32.)

The court emphasised that because the subsequent execution of plans G submitted for approval could affect the rights of owners of neighbouring properties, the relevant provisions of the Act 'must be construed in a manner that promotes the implicated rights, consistently with the obligation imposed on courts by section 39(2) of the Constitution'. (In H para 52.)

[14] Appellant's counsel had no quarrel with the legal principles enunciated in relation to the first finding referred to in the preceding paragraph. The issue of audi alteram partem thus evaporated. The appellant's case thereafter rested on the validity of the following propositions: I first, that on a proper interpretation of s 7, a local authority must be satisfied that the erection of a building in consequence of its approval of a plan, will not derogate from the value of a neighbouring property; in

Heher JA

this regard, the appellant relied upon a dictum of this court in Paola v A Jeeva and Others [6] (at para 23), [7] which was quoted with approval by the majority in Walele [8] (at para 32), [9] and a statement in the last-mentioned judgment in para 55; [10] second that the evidence such as it was led to the necessary inference that the decision-maker had either not applied his mind to derogation of value or had done so in a superficial manner which B fell short of achieving the satisfaction which s 7(1)(b)(ii) required of him; finally, counsel submitted, with marked lack of enthusiasm, that the evidence did not support a lawful delegation of authority to Mr Mbhele to recommend approval of the plans. [11]

[15] Shortly before the hearing the eThekwini Municipality applied to be C admitted to the appeal as an amicus curiae on the ground of its concern with the proper interpretation of s 7 of the...