THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  647/06
REPORTABLE
In the matter between:

QUALIDENTAL LABORATORIES (PTY) LTD          APPELLANT

and

HERITAGE WESTERN CAPE                        FIRST RESPONDENT
THE HERITAGE INSPECTOR                  SECOND RESPONDENT

Coram:
Howie P, Navsa, Van Heerden, Mlambo JJA et Malan AJA

Heard:
16 November 2007

Delivered: 30 November 2007

Summary:
National Heritage Resources Act – demolition permit with condition –
whether provincial heritage resources authority has the power to
impose conditions when granting demolition permit in respect of
structure enjoying no formal protection in terms of the Act – condition
not in conflict with principle of legality.

Neutral citation:
This judgment may be referred to as Qualidental
Laboratories v Heritage Western Cape [2007] SCA 170
(RSA).

___________________________________________________________

MLAMBO JA
[1] This appeal concerns the powers of a provincial heritage resources
authority established in terms of the National Heritage Resources Act 25
of 1999 (the Act).

[2] The appellant sought, on an urgent basis, the review and correction
of a demolition permit issued by the first respondent, a provincial heritage
resources authority; the review and setting aside of a stop works order
issued by the second respondent, a senior heritage inspector; and certain
ancillary relief. In turn the first respondent, in a counter application,
sought to interdict the appellant from continuing with certain building
work pending inter alia the finalisation of the application. The matter
came before Davis J sitting in the Cape High Court who dismissed the
application but granted the appellant leave to appeal to this court. The
judgment of the court a quo has been reported: see Qualidental
Laboratories (Pty) Ltd v Heritage Western Cape and another 2007 (4)
SA 26 (C).

[3] The facts giving rise to the litigation are largely common cause.
The appellant is the owner of immovable property situated at erf 4953
(also known as 6 Marsh Street), Mossel Bay, Western Cape (the
property). On the property was built a cottage (called an annex by the
parties) and a villa both of which the appellant wanted demolished to
make way for an apartment block development on the property. It applied
to the first respondent for a permit for the total demolition of the villa and
the annex as these buildings were older than 60 years and in terms of the
Act could not be demolished without a permit.

[4] Upon receipt of the application and after consideration the first

respondent requested the appellant to file a heritage statement from a
heritage practitioner containing information in terms of which the
proposed demolition could be considered. That statement having been
filed by the appellant’s heritage consultant, Mr Christopher Snelling, the
first respondent issued a permit approving the demolition of the annex but
not the villa and attached a condition to the demolition. The condition is
to the effect that the plans for the intended development on the property
were to be submitted to it for final approval. The full record of decision
reads as follows:

‘•
The committee decided not to approve the application for total demolition, but
has approved the demolition of the annex building.
•
The committee feels that the building has intrinsic quality and contextual
value and sites it in a Grade 3 area.
•
Plans for any new development on the property must be submitted to HWC
[the first respondent] for approval.
•
The new development must be subsidiary to the main building in terms of
massing, scale, sighting and location.
•
The building will be put on the Heritage Register.’

[5] The record of decision also mentioned that the decision was subject
to a general appeal period of 14 working days and could be suspended,
should an appeal against the decision be received by the first respondent
within 14 days from the date the record of decision was issued. It is the
imposition of the condition that plans for any new development on the
property be submitted to the first appellant for final approval that is at the
centre of the litigation. I return to this aspect later.

[6] After receiving the permit the appellant submitted its building
plans for the proposed development to the Mossel Bay Municipality

which approved them subject to the proviso that the appellant comply
with any condition imposed by the first respondent. The building plans
were thereafter submitted to the first respondent by the Mossel Bay
Municipality for approval but were found inappropriate and were as a
result not approved. The first respondent’s reasons for not approving the
building plans were essentially that (a) as the envisaged apartment blocks
were to be constructed in the vicinity of the villa, part of the development
would obscure the most important aspect and view of the villa from
Marsh Street; and (b) that the proposed development was intrusive and
out of keeping with the context created by the villa and other buildings in
the surrounding area, such as the St Blaize Terraces. It was felt that the
development would, in fact, make a mockery of the villa’s landmark
status.

[7] The appellant thereafter proceeded to demolish the annex and,
despite the lack of final approval for its building plans by the first
respondent, commenced the construction of the apartment blocks on the
property. News of the construction soon reached the first respondent and
Mr Bewin September, a senior heritage inspector and the second
respondent herein, accompanied by another heritage officer, decided to
investigate. On arrival at the property they observed that the annex had
been demolished and that an excavation had taken place, that concrete
footings and a slab had already been laid with the principal external walls
already up to ground level including what appeared to be a basement.
Steel reinforcements for concrete columns were already in place. The
second respondent entered into discussions with the appellant’s contractor
and officials from the Mossel Bay Municipality’s Planning Department in
an attempt to resolve the situation. As construction continued unabated
without final approval of the building plans, the second respondent issued

and served a stop works order on Mr Roy Freedman, a director of the
appellant, stating that it had come to the first respondent’s attention that
he was ‘responsible or is partly responsible for alleged illegal alteration to
a structure older than 60 years, without fulfilment of Permit conditions
(Permit no 2005/03/015) dated 2005/03/07 in terms of s 48(2)(c) as per
the National Heritage Resources Act’ and that he was therewith ‘formally
ordered’ in terms of the Act to immediately cease all works until further
notification and that failure to comply with the order could result in the
criminal prosecution of Mr Freedman and/or the owner of the property.

[8] It was the threat of a criminal prosecution rather than the stop
works order that appears to have had the desired effect and to have been
the catalyst that galvanised the appellant into launching its ill-fated
application before Davis J in the court a quo. Central to the matter is the
competence of the first respondent to impose the condition regarding the
submission of building plans to it for final approval.

[9] Any entity like the first respondent exercising public power is
confined to exercising only such powers as are lawfully conferred upon it
– this is the principle of legality. See Fedsure Life Assurance Ltd v
Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA
374 (CC) at 399 para 56 and Pharmaceutical Manufacturers Association
of SA: In re Ex Parte President of the Republic of South Africa 2000 (2)
SA 674 (CC) at 699 para 50.

[10] It is prudent at this stage to consider the statutory framework. In
broad outline the scheme of the Act encompasses general principles
underpinning the management of heritage resources; the establishment of
heritage resources authorities and their functions, responsibilities and

powers; the protection and management of heritage resources including
formal and general protection as well as general provisions incorporating
the competence of provincial heritage resources authorities to grant or
refuse permits. An overview of the Act shows that its overarching
objective is the identification, protection, preservation and management
of heritage resources for posterity.1 This objective also finds resonance in
clause 24(b) of the Constitution.

[11] The first respondent was established in accordance with s 23 of the
Act in terms of Provincial Notice 336 dated 22 October 2002, published
in the Provincial Gazette, by the Member of the Executive Council
responsible for cultural affairs in the Western Cape. In terms of s 8 the
first respondent, as a provincial heritage resources authority, is
responsible for the identification and management of heritage resources
in the Western Cape that have special qualities making them significant
within a provincial context. A heritage resource is defined in s 1 as a
place or object of cultural significance. In terms of s 5 heritage resources
management should recognise that heritage resources have lasting value
and are finite, non-renewable and irreplaceable. In view of this, heritage
resources have to be carefully managed to ensure their survival to be
preserved for succeeding generations.

[12] Section 34(1) is the section in terms of which the appellant was
obliged to apply for a permit for the authority to demolish the villa and
annex. This section reads:

1In this regard the preamble to the Act is of relevance. It reads:
‘This legislation aims to promote good management of the national estate, and to enable and encourage
communities to nurture and conserve their legacy so that it may be bequeathed to future generations.
Our heritage is unique and precious and it cannot be renewed. It helps us to define our cultural identity
and therefore lies at the heart of our spiritual well-being and has the power to build our nation. It has
the potential to affirm our diverse cultures, and in so doing shape our national character. . . .’

‘34. Structures (1)  No person may alter or demolish any structure or part of a
structure which is older than 60 years without a permit issued by the relevant
provincial heritage resources authority.’

It is evident that s 34(1) contains a general protection against the
alteration or demolition of any structure or part thereof which is older
than 60 years without a permit issued by the relevant provincial heritage
resources authority. In turn s 34(2) provides that in the event of the
refusal of a provincial heritage resources authority to issue a permit
regarding the demolition or alteration of a generally protected structure it
must consider bringing the structure concerned within any of the formal
protections set out in the Act.

[13] It is common cause that neither the property nor the villa is a
declared national or provincial heritage site as contemplated in s 27. They
also do not enjoy provisional protection in terms of s 29, nor are situated
within a designated protected area within the meaning of s 28. They are,
furthermore, not listed in a heritage register in terms of s 30, nor
designated as a heritage area in terms of s 31, nor declared heritage
objects as contemplated in s 32. The property does, however, fall within
an area proposed by the Municipality’s consultants as being worthy of
consideration as an urban conservation area in terms of the local zoning
scheme.

[14] The granting or refusal of demolition permits is regulated by s 48.
Section 48(2) is relevant for present purposes and reads:

‘(2)
On application by any person in the manner prescribed under subsection (1), a
heritage resources authority may in its discretion issue to such person a permit to

perform such actions at such time and subject to such terms, conditions and
restrictions or directions as may be specified in the permit, including a condition–
(a)
that the applicant give security in such form and such amount determined by
the heritage resources authority concerned, having regard to the nature and
extent of the work referred to in the permit, to ensure the satisfactory
completion of such work or the curation of objects and material recovered
during the course of the work; or
(b)
providing for the recycling or deposit in a materials bank of historical building
materials; or
(c)
stipulating that design proposals be revised; or
(d)
regarding the qualifications and expertise required to perform the actions for
which the permit is issued.’

It is evident that in terms of s 48(2) the first respondent has a discretion
insofar as the granting or refusal of a permit is concerned. The first
respondent also has a discretion regarding the imposition of any terms,
conditions, restrictions or directions when granting a permit.

[15] The appellant’s stance in the court a quo and before us is that,
properly construed s 34, providing as it does for general protection
against alteration or demolition, does not clothe the first respondent with
the power to impose the condition and particularly not in relation to the
villa for which permission to demolish was refused. In the appellant’s
view the full extent of the first respondent’s power in the circumstances
of this case was only to authorise the demolition of the annex and impose
conditions in that regard and nothing further.

[16] It was further submitted in relation to the villa that the only power
which the Act confers upon the first respondent is to protect it from
alteration or demolition but that the first respondent enjoys no power to
regulate any other construction on the property. Counsel submitted that

the imposition of the condition in the demolition permit was thus beyond
the first respondent’s powers. Counsel labelled the condition as one the
objective of which was to control development which he submitted was
not authorised by s 48 and was beyond the first respondent’s power. It
was further submitted that the powers contained in s 48(2) (in terms of
which the condition was imposed) which entitle the first respondent to
impose a condition that design proposals be revised, are exercisable only
in the context of control by a heritage resources authority over the
alteration or development of heritage resources which enjoy formal
protection in terms of the Act through the provisions referred to in
paragraph 13 above. In so far as the stop works order is concerned, it is
sought to be set aside on the basis that its validity is predicated upon the
effectiveness of the condition the validity of which is impugned.

[17] It is common cause that the appellant’s application for a permit,
though specifying the villa and the annex, envisaged a single structure
whose total demolition was sought. The sketch plan submitted with the
application depicts a single structure even though in actual fact only the
roof overlapped between the two buildings which were at least a metre
apart. The annex was built directly adjacent to the villa with its flat roof
effectively a continuation of the lean-to roof of the villa’s kitchen and
pantry. It is also apparent that the first respondent treated the application
in the same light. It is clear from the stance adopted by the first
respondent that when it approved the demolition of the annex and not of
the villa it was in effect approving the partial demolition of a single
structure.

[18] The first respondent clearly considered the villa, in respect of
which permission to demolish was refused, to be a building of

considerable cultural significance and worthy of preservation in its
particular context. In this regard the aesthetic importance of the villa was
emphasized in the appellant’s heritage report compiled by its heritage
consultant, Mr Snelling. The report inter alia records:

‘The aesthetic/contextual value of the building is considered to be high in terms of
its local content. It is however felt that this significance has been compromised by the
annex addition. Given the urban feel of much of Mossel Bay, resultant from what
Fransen describes as its restricted layout, 6 Marsh Street presents an interesting and
elegant departure from the established building pattern that indicates the building had
once enjoyed some considerable status. Indeed the building and site could be
considered to be of landmark quality . . .. The Landmark quality is further enhanced
by the placement of the main gables to the building, positioned to address the street
and be visible from all approaches. This is a building that was designed in order to be
noticed . . ..’

Therefore any new development that would detract from the villa and its
surrounds would be contrary to the first respondent’s obligation to protect
and conserve the villa’s landmark status.

[19] The condition imposed by the first respondent therefore accords
with its conservation mandate in terms of the Act and is directly in line
with the principles of heritage resources management set out in ss 5 and
6. The imposition of the condition is also within the parameters, not only
of the Act but is consonant with the overall scheme of the Act. The first
respondent’s power to impose conditions in my view is not as narrowly
circumscribed as contended for by the appellant.

[20] I may add that the purpose and effect of the condition is designed
to enable the first respondent to exercise a power vested in it in terms of

the Act and which, as pointed out, is consonant with the overall objective
of the Act ie the conservation of a heritage resource. Therefore the
condition, rather than being one aimed at controlling development, as
contended by the appellant, was in actual fact a condition with a
conservation objective. It must also follow that, the condition having been
validly imposed, the stop works order is also unimpeachable.

[21] The court a quo was therefore correct in dismissing the application
and this appeal must fail.

[22] Having come to this conclusion it becomes unnecessary to consider
the other two issues raised by the first respondent regarding the failure of
the appellant first to exhaust its internal remedies as set out in s 49 before
launching its court application, as well as its failure to bring the
application within the prescribed time limit, both as required by s 7 of the
Promotion of Access to Justice Act 3 of 2000.

[23] In the circumstances the following order is made:

The appeal is dismissed with costs including the costs consequent upon
the employment of two counsel.

________________
D MLAMBO
JUDGE OF APPEAL
CONCUR:
HOWIE P
NAVSA JA
VAN HEERDEN JA
MALAN AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
30 November 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

QUALIDENTAL LABORATORIES v  HERITAGE WESTERN CAPE

1.
The Supreme Court of Appeal today dismissed an appeal against a decision of the
Cape High Court which had upheld a condition imposed by Heritage Western Cape.

2.
The appellant, the owner of certain immovable property in Mossel Bay, had applied
to Heritage Western Cape for a permit for the total demolition of an annex and a
villa situated on the property, to make way for an apartment block development.
Heritage Western Cape granted the permit for the demolition of the annex building
but not the villa. Heritage Western Cape had in addition imposed a condition that
the appellant was to submit its building plans for the envisaged apartment block
development to it for final approval.

3.
The appellant had contended in the high court that the Heritage Resources
Management Act did not empower Heritage Western Cape to impose the condition
in respect of the villa as same was not formally protected in terms of the Act.

4.
The Supreme Court of Appeal found that the objective of the condition imposed by
Heritage Western Cape was the conservation of the villa which it had identified as
culturally significant and worthy of protection. In this regard the SCA found that the
condition was consonant with the overall scheme of the Act and the Constitution.
The SCA further found that Heritage Western Cape was empowered by the Act to
issue the condition, in the circumstances of this case, even though the villa did not
enjoy any of the formal protections in the Act.