`

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case no: 112/2019
In the matter between:

BO-KAAP CIVIC AND RATEPAYERS ASSOCIATION
FIRST APPELLANT
35 ON ROSE BODY CORPORATE
SECOND APPELLANT
THE EXECUTORS OF THE ESTATE OF THE LATE
FABIO TODESCHINI
THIRD APPELLANT

and

CITY OF CAPE TOWN
FIRST RESPONDENT
MUNICIPAL PLANNING TRIBUNAL OF THE CITY OF
CAPE TOWN
SECOND RESPONDENT
MAYOR OF CAPE TOWN
THIRD RESONDENT
BUITENGRACHT PROPERTIES (PTY) LTD
FOURTH RESPONDENT
HERITAGE WESTERN CAPE
FIFTH RESPONDENT

Neutral citation: Bo-Kaap Civic and Ratepayers Association and Others v City of Cape
Town and Others (case no 112/2019) [2020] ZASCA 15 (24 March 2020)

Coram:
Navsa, Saldulker, Makgoka and Plasket JJA and Eksteen AJA

Heard:
21 February 2020

Delivered:
24 March 2020

Summary:
Approval by local authority and Mayor of land use application –
challenged on the basis of unreasonableness, irrationality and error of law –
nature of judicial review discussed – deference to expertise of decision
makers – no reviewable irregularity – costs in relation to asserted
constitutional litigation discussed.
___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town (Le Grange
J sitting as court of first instance):

1. The application to lead further evidence on appeal is dismissed with costs,
including the costs of two counsel.
2. The appeal is dismissed with costs, including the costs of two counsel.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Navsa JA (Saldulker, Makgoka and Plasket JJA and Eksteen AJA concurring):

[1] In this case the record comprises 16 volumes and extends to 2715 pages. The
core issue to be addressed is rather more compact. It is, simply, whether the first
respondent, the City of Cape Town (the City), a metropolitan municipality established
in terms of the Municipal Structures Act 117 of 1998, through its Municipal Planning
Tribunal, the second respondent and, ultimately, through its Mayor, the third
respondent, by way of an internal appeal process, lawfully approved land use
applications by the fourth respondent, Buitengracht Properties (Pty) Ltd (the
Developer). The land use applications were in relation to the construction of an
eighteen-storey building, 60 metres tall, in the immediate vicinity of a well-known
international and local tourist destination, which is also a heritage sensitive area, the
Bo-Kaap. Put differently, the question for adjudication is whether the City and the

Mayor had due regard to heritage concerns, as provided for in applicable legislation
and policies, and whether they complied with administrative law principles. There are,
of course, allied questions concerning the propriety of simultaneous associated
approvals by the City, such as the consolidation of the two erven on which the
construction is envisaged to take place, the approval of 310 parking bays, with
attendant traffic consequences, etc but these are inextricably linked to the core issue.
Also linked is a title deed condition relating to the Bo-Kaap attached to one of the
erven, which will be dealt with in due course.

[2] The Western Cape Division of the High Court, Cape Town (Le Grange J),
adjudicating an application by the three appellants, for the review and setting aside of
the approvals and of the Mayor’s decision on appeal, held that they were all lawful and
dismissed the application with costs, including the costs of two counsel. Heritage
Western Cape (HWC), a provincial heritage agency established in terms of s 23 of the
National Heritage Resources Act 25 of 1999 (the NHRA), had intervened in the
proceedings in the high court and supported the review application. In addition, HWC
had sought an order declaring that the intended development could not proceed
without a permit issued in terms of s 27(18) of the NHRA1. The application for that
order was also dismissed. It is against those findings that the present appeal is
directed. The appeal is before us with the leave of the court below. HWC, however,
did not participate in this appeal.

[3] At the outset it is necessary to have regard to the history of the Bo-Kaap. A brief
history, extracted in the main from what was provided by the appellants, is set out
hereafter.
The Bo Kaap was built largely by and for the artisans of Cape Town between 1790
and 1825. It extends over 34 hectares and is bounded by Buitengracht, Rose,
Carisbrook and Strand Streets, and the slopes of Signal Hill.
Although the Bo-Kaap has over centuries been home to people of various origins and
from different regions, the area is closely associated with the traditionally Malay
community of the Cape, which is predominantly Muslim. The ancestors of the majority

1 Section 27(18) provides: ‘No person may destroy, damage, deface, excavate, alter, remove from its
original position, subdivide or change the planning status of any heritage site without a permit issued
by the heritage resources authority responsible for the protection of such site’.

of Muslim people in the Cape arrived from 1658 onwards as slaves, or political exiles
from East Africa and South East Asia (India, Indonesia, Java, Malaysia and Sri Lanka).
Many of them were brought by the Dutch and were skilled craftsmen, artisans, famous
scholars and religious leaders.
The first mosque at the Cape, the Auwal Mosque, was built in the Bo-Kaap
neighbourhood in 1804 and is still in use.
The history of the Bo-Kaap reflects the political processes in South Africa during the
apartheid years. It was declared a residential area exclusive for Cape Malays under
the Group Areas Act 41 of 1950 and people of other racial classifications were forced
to leave.
The neighbourhood has been described as being atypical. In the mid-twentieth
century, most working class people in South Africa were moved to the periphery of the
cities under the Slums Act 53 of 1934 and neighbourhood improvement programmes.
Housing in the Bo-Kaap is made up of long continuous rows of small, mostly single-
storeyed, flat roofed, parapetted houses; staggered to step down the slopes of Signal
Hill. All of the houses face onto the street, with access to the front door immediately
off the pavement via the narrow ‘stoeps’ which often have low brick walls and stoep-
seats at each end. The parapets are decorated with mouldings.
Virtually no houses in the Bo-Kaap have garages and people utilise street parking to
park their vehicles from early evening until the next morning. Rose Street is one of the
roads that is particularly affected by this. Street parking in the Bo-Kaap, and
particularly Rose Street, is not in any event limited to the period after the close of the
working day. Many people who work in the area of the Central Business District (CBD)
bordering the Bo-Kaap utilise available street parking in the Bo-Kaap to park their
vehicles during the working day instead of having to pay for parking.

[4] I now turn to have regard to two other areas of heritage significance in the
vicinity of the proposed development of the Bo-Kaap, namely, Riebeeck Square and
Heritage Square. Riebeeck Square lies between Buitengracht and Breë Streets and
is also bounded by Shortmarket and Church Streets. It is of historical significance in
that it is a square around which Cape Town developed and was an area where
farmers, during our colonial past, used to outspan their wagons and offload their
products. It is common cause that the square has deteriorated over the last few
decades and is now used as a parking lot. Heritage Square is in the immediate vicinity

of Riebeeck Square. It consists of a block of preserved heritage buildings which have
been restored and renovated. In short, this has resulted in a recognised city block with
established heritage values.

[5] The sequence of events that led to the land use approvals for a development
on the doorstep of the Bo-Kaap and which culminated in the present appeal is set out
hereafter. During 2015 Tommy Brümmer Town Planners, who represented the
Developer, held two pre-submission consultations with City officials. The first took
place in May and the second on 24 August. During October of that year, the Developer
made the following applications:
(a) In terms of section 42(b) of the By-law,2 for departures from the City’s Development
Management Scheme (DMS) to allow portions of the building above 38m to be closer
to the street boundary than is permitted by item 60(e) of the DMS;
(b) In terms of section 42(f) of the By-law, for the consolidation of two erven;
(c) in terms of section 42(i) of the By-law, for approval in terms of Item 64(e)(ii) of the
DMS to have parking on the ground floor level for Block B at 0m in lieu of 10m to the
street;
(d) In terms of section 42(i) of the By-law, for approval in terms of Item 162 of the DMS
to develop a new building in the Heritage Protection Overlay Zone (HPOZ);
(e) In terms of section 42(i) of the By-law, to have a 0m building line on the
Buitengracht Street boundary in lieu of 5m as required by Item 121(2) of the DMS for
a metropolitan road.
These are the applications, the approvals of which are at the centre of this appeal.

[6] The applications referred to in para 5 above relate to erven 144698 (2505
square metres) and 8210 (645 square metres) in Cape Town, which are owned by the
Developer. The two erven are adjacent, hence the application for consolidation.  The
properties are bounded by Buitengracht, Rose, Longmarket and Shortmarket Streets.
The erven in question, and a number of developed properties alongside them, are
separated from the Bo-Kaap by Rose Street.

2 The applicable City of Cape Town: Municipal Planning By-Law is contained in PN 206 in PGE 7414
of 29-06-2015.

[7] I pause to record the Title Deed condition in relation to Erf 144698. The special
condition for the benefit of the City reads as follows:
‘Subject to the following special condition contained in Deed of Transfer No. 17550/1953
imposed by and for the benefit of the Municipality of Cape Town, namely:
The Transferor shall have the right to refuse permission to build or rebuild any building or
structures on the said land unless the architecture of that portion of such buildings or structure
which fronts on Rose Street is in conformity with the general design and architecture of
buildings situate in such area or areas of the City of Cape Town which is known and/or
classified as the Malay Quarter.’

[8] The applications were motivated and supported by:
(i)  an Urban Design Report prepared by Bluegreen Planning and Design;
(ii)  a report by Fabian Architects; and
(iii) a Traffic Impact Assessment by Kantey and Templer.
On behalf of the Developer it was stated that the applications seeking approval for the
proposed development were compliant with the City’s policy framework in relation to
such proposals, more particularly: (a) the Cape Town Spatial Development
Framework; (b) the Table Bay District Plan; (c) the Tall Building Policy; and (d) the
Urban Design Policy.

[9] On 7 December 2015 the City’s Directorate of Energy, Environment and
Spatial Planning in the Department of Spacial Planing and Urban Design, submitted
an internal report in relation to the applications by the Developer. The following
remarks were made:
‘In our opinion, due consideration has been given to the context that the site is located within
which is demonstrated through the urban design report attached to the application.
Support was given for a building that [utilises] allowable building height but with massing
sensitive to the Bo-Kaap and Riebeeck Square context. The utilisation of basement parking
also minimises the impact in street activity which was a key design requirement.
We thank the developer and design/planning team for a clear and participated process with
our and other line [department] and [a] well-motivated application clearly unpacking the key
design principles and responses. This made the process of assessment a pleasure.’

[10] Two days later, on 9 December 2015, the City’s Directorate of Asset
Management and Maintenance Transport recommended the approval of the proposal
subject to certain conditions.

[11] On 14 December 2015 the District Head: Environmental and Heritage
Management Resources (the EHM) within the City’s Environmental Management
Department made the following three comments:
‘•     The identified heritage resources are the HPOZ urban streetscape interface, the Bo-Kaap
residences along Rose Street, views of vistas of the mountain from various points in the
City and archaeological discovery during excavation.

The Buitengracht Street edge of the building requires a larger setback and canopy on
street level and one storey to improve the pedestrian experience. There must be direct
access to the building at various points along an active edge.

The Rose Street building interface is too high and should emulate the development one
block north. An appropriate edge and interface with Bo-Kaap should be 2 storeys with
setbacks for subsequent storeys. . . .’

[12] Following on what is set out above the Developer’s application was advertised.
It attracted 1017 objections, more than 600 of which were prompted by a website
created and maintained by the first appellant, the Bo-Kaap Civic and Ratepayers’
Association, a voluntary association that claimed it represented the interests of
residents and ratepayers of the Bo-Kaap. The second appellant, the Body Corporate
of 35 on Rose Residents’ Association and, as the name suggests, is the body
corporate responsible for that property, which is located on Rose Street, close to the
erven in question. The body corporate was among those who objected to the
Developer’s proposal. The third applicant in the court below was Professor Fabio
Todeschini, an architect, city planner, urban designer and heritage practitioner who
also owned property in the Bo-Kaap. He passed away and has been substituted as a
litigant in this appeal by the executors of his estate, the third appellant.

[13] On 8 March 2016 the EHM commented on the Developer’s applications. The
comments are pertinent. The EHM noted that there were ‘several significant heritage
resources’ and areas that would be impacted by the proposed development, namely,
(a) Riebeeck Square; (b) erven 1299 and 1300; (c) the Bo-Kaap precinct; (d) the City

Centre; and (e) Heritage Square. Continuing, the EHM recorded that Riebeeck Square
is a significant link between the City and the Bo-Kaap. It went on to state the following:
‘The massing of the proposed building is such that the greater bulk and sheerness of the
design imposes onto Riebeeck Square which serves to further “contain” the square’s breathing
space, boxing it in, which is counterproductive to the historic nature of the space. This is not
seen as a positive impact on the open space.
The historic character of Riebeeck Square is one of openness with important views to Table
Mountain and Signal Hill. These views should not be discarded but should be considered when
impacted on. The proposed building impacts on views from Riebeeck Square and these
impacts should be investigated further.’
(my emphasis).

[14] In respect of the Bo-Kaap it said:
‘The Bo-Kaap is of very high heritage value with many levels of significance which forms part
of the extremely important history of not only Cape Town but of South Africa. The Bo-Kaap is
intricately woven into the early beginnings of Cape Town and has continued to play an
important role in the heritage and history of our city.
On the City’s heritage database Bo-Kaap is listed as a Provincial Heritage Site, a SAHRA
Grade 1 Area and a Proposed HPOZ.
Bo-Kaap can be described on many levels of heritage significance one of which is the historic
fabric and corresponding three dimensional scale and density of the area. This low impact,
architecturally rich and unique area has always had a relationship with town to its south, a
relationship of proximity that has struggled for sustainability due to the continued impact of
new, large and bulky buildings that have served to erode that relationship. Larger, newer
buildings which replaced early structures have resulted in a lineated barrier along both edges
of Buitengracht and Rose Streets. These multi-storey buildings have formed a vertical barrier
between town and the Bo-Kaap which removes the historic connection that has always existed
between the two.
A contextual linking of the Bo-Kaap and town on a physical level is important from a heritage
perspective and is rooted deep in the history of Cape Town. The proposed development
compounds the ongoing separation by means of the design’s bulk and height. The large visual
mass of the proposed building is seen as a physical and visual barrier which erodes the fragile
relationship between the differing built environments of town and the Bo-Kaap. The loss of
historic connection and association of Bo-Kaap with town impacts negatively on the heritage
value of the Bo-Kaap.

The proposed development has opted for setting the massing and bulk back as the building
gets higher which indicates an acknowledgement by the designers of the sensitive nature of
the site and its relationship with Bo-Kaap. This impact should be investigated further with the
aim of design revision that reduces negative influences.’ (My emphasis.)

[15] The EHM stated that a portion of the site fell within the City’s HPOZ and that an
analysis was required as to the proposed development’s impact on the significance
and character of the precinct. Significantly, it went on to state:
‘HPOZ’s are very important tools set in place for the protection, preservation and management
of certain areas which have been investigated, studied and analysed. Those areas have been
recognised to contain sufficient heritage value in terms of heritage resources, significance and
character so as to be protected and managed. Proposed interventions in these areas should
not impact negatively on any of the recognised positive heritage values but should seek to be
informed by those exact values and to achieve a sensitive and welcome balance when placed
in such an environment.
. . .
The proposal introduces a contemporary design approach to its interface at ground and street
level. Further investigation is recommended as to the appropriateness of this approach.
The architectural language is fashionable and does not reference any obvious design
indicators, the incorporation of which would serve to better place the new building in its
sensitive position.
The overall height, bulk and visual mass of the proposed development has a pronounced
impact on the existing built form and character of the immediate area and this is difficult to
mitigate.’  (My emphasis.)

[16] In relation to Heritage Square, the sheer size of the development was a cause
for concern on the part of the EHM. It was not opposed to the addition of built form on
the site, but made its suggestions in order to see if there was a way of limiting the
impact on heritage resources.

[17] I now turn to the heritage statement prepared by the Developer in April 2016.
At the beginning of the executive summary it is stated that the design had responded
positively to urban and heritage related design indicators and that mitigating
measures, such as the stepping back of the upper levels from the Rose Street edge,
without reducing the overall height, would lessen potential negative impacts on the

street and townscape and in relation to Riebeeck Square and the Bo-Kaap. The
Developer’s heritage statement asserted that since the proposed development
involved no listed activities in terms of s 38(1) of the NHRA3 no Heritage Impact
Assessment was required. The Developer drew attention to the base zoning for the
erven in question, namely, ‘Mixed Use MU3’. In terms of the Municipal Planning By-
law, permissible coverage for all buildings within this zone is 100%. It is that base
zoning on which the Developer relied for the applications for approval that it submitted
to the city. The base zoning, and the reliance thereon by the Developer as well as the
City’s insistence that it was an important factor, is a theme that permeates the
complaints and objections by the appellants.

[18] On the 29th of April the EHM wrote to Mr Paul Heydenrych of the City’s Land
Use Management Division stating, inter alia, the following:
‘EHM is still not opposed to the idea of adding built form to the site but is not supportive of the
current proposal.
Our suggestions are aimed at lessening the negative impact that the proposal has on the
heritage resources in the area.
All of the heritage resources identified above will be impacted on in a negative manner to a
certain degree by the proposed development because of the design’s sheer size and
magnitude. The proposed design seeks to mitigate this impact by introducing setbacks and
stepping the building. These setbacks and stepping measures are not significant enough as
mitigation for the impact of the proposal’s size.
The overall height is still seen as being problematic in achieving an appropriate intervention
of a new building into the area. Our recommendation is for a reduction in height whereby a
revised design relates more appropriately to the heritage resources which are impacted on.
The effect of reducing the overall height and subsequent manipulation of proposal might be
more manageable in how the development relates to and impacts on the surrounding heritage
resources.
EHM still recommends that comment be requested by the applicant from Heritage Western
Cape. We request that such comment be forwarded to us please.
EHM acknowledges the substantial Heritage Statement provided by the applicant.’

3 Section 38(2) provides that when a heritage society receives a notice from a person intending to
undertake a development listed in s 38(1), and has reason to believe that heritage resources will be
affected, it must require such person to submit an impact assessment report. It is common cause that
no notice was issued by either the Developer or to responsible heritage authority.

[19] On 11 May 2016, HWC responded to the Developer’s proposals. The following
are the essentials of the response:
‘We note the following three design principles listed in the Heritage Statement, which have
been proposed in an attempt to reduce impacts on townscape and streetscape:
(a) The ‘stepped massing’ from a height of 60m on Buitengracht Street towards a lower
massing on the Rose Street edge;
(b) The incorporation of horizontal and vertical articulation and datum lines, and
(c) The proposed height “counter-balancing” the mass of the City-Park building diagonally
across Riebeeck Square.
With regard to (a), the proposed cascading of the 18-storey building down to a height of
approximately five storeys on Rose Street attempts to make a gradual transition between
the very tall façade on Buitengracht and the Bo-Kaap. The stepping effect alone is however
inadequate to mitigate the substantial heritage impacts on the Bo-Kaap, which is a fine-
grained, predominantly one- and two storey environment with a unique character.
. . .
With regard to (b) above, HWC disputes the datum lines that have been used to establish
the heights and set-backs. Whilst the base zoning and its associated development rules
are recognised, the Heritage Protection Overlay Zone, which is a lawful deprivation, takes
precedence over these underlying “development rights” and was specifically promulgated
to allow for context to inform development and, where necessary, to limit it. We are of the
view that a height of 60m above this section of Buitengracht Street is inappropriate, as it
will dominate both the Bo-Kaap and Riebeeck Square and exacerbate the separation of
the Bo-Kaap from the West City.
As far as design principle (c) above is concerned, HWC does not agree that the Netcare
(“City-Park”) Hospital, diagonally opposite Riebeeck Square, can be used as justification
for the construction of another insensitively-scaled ziggurat building or that “counter-
balancing” the mass of the hospital would be successful mitigation for the negative effects
of a new building, which does not dominate Riebeeck Square, serving as an enclosing
element to the square.
. . .
It is HWC’s view that the development proposal in its current form is inappropriate in this
heritage context and that it will have a detrimental effect on the heritage significance of
both Riebeek Square and the Bo-Kaap. As noted in the CoCT Densification Policy,
development that will be compromising the surrounding built environment should not be
supported. We therefore strongly object to the current planning application.

The proposed mitigation measures, such as stepping down in height are inadequate to
address the substantial impacts of an over-scaled building. The applicants should be
encouraged to re-conceptualise the development proposal, based on comprehensive
heritage indicators and not to merely maximise development, with mitigation as an
afterthought. . . .’ (My emphasis.)

[20] Under the heading ‘Heritage Evaluation’, the following appears in the report,
dated 24 May 2016, by the City’s Land Use Management to the MPT:
‘Various commenting and objecting parties (as indicated above) have cited how the proposed
building will impact on the surrounding heritage resources. Their main points relate to the
proposed building’s height, massing and position.
Despite the legislated heritage resources within the surrounding area (ie PHS), these
resources do not have a legal standing to impose on the subject property.
The various objecting parties’ calls for the reduction in the height of the building due to its
impact on the various heritage resources in the area have not been quantified. The calls for a
reduction in order to limit [the] impact or to allow for a “bridge” between the city and Bo- Kaap
cannot override the primary rights allowable on the property as well as the applicable
legislative context, as previously explained.
With respect to further arguments to limit the height of the portion of the building in the HPOZ,
it is noted that:
If the permissible development rights of the portion outside of the HPOZ were to be accessed
it would serve to “create a backdrop” to a development of the portion within the HPOZ. Despite
this and to mitigate any impacts on the Bo-Kaap area, the bulking of the building is towards
Buitengracht and the CBD. This is some 65m from the Bo-Kaap.
The massing is designated to “bulk” the building towards the central city to “abut” other tall
buildings in the city centre which is the economic hub of the City of Cape Town.
It is noted that other than the development rules for the development site, no development
rules exist within the HPOZ as mentioned in Item 161 of the development management
scheme.
In the absence of the qualification [set out above], my Department considers the above and
following comments. . . relevant to evaluation of this application.
From a statutory point of view, this department reaffirms that no mechanism or legal basis
exists to circumscribe the permissible development rights of the portion of the site outside the
HPOZ, despite objections and the comments from HWC arguing for limiting development
rights.’ (My emphasis.)

[21] On 7 June 2016 a hearing took place before the MPT. I pause to record that
the members of the MPT are technical specialists and a number of them are
independent and not employed by the City. At the MPT meeting Councillor Bryant
emphasised the growth in the CBD and that the amazing growth was something to be
proud of. Extensive discussions ensued, including discussions concerning the scale
of the development and its impact on heritage resources. The following are the noted
reasons for the MPT’s decision to approve the proposal:
‘•    The proposal complies with the City of Cape Town Planning Policies (e.g. Table
Bay District Plan Densification Policy, Urban Design policy and Tall Building
Policy).
 The proposal takes cognizance of the heritage resources within the area and has
the potential to exhibit good urban design when the relevant conditions have
been complied with, while sacrificing primary development rights.
 The proposal will provide an adequate transition between the City and Bo-Kaap
at street level, while reinforcing and defining Riebeeck Square, provided
appropriate urban design and landscaping is implemented.
 The massing and height of the building is located away from the Bo-Kaap.
 The interface and facades are considered to be acceptable and positive,
especially when relevant conditions are complied with.
 The proposal will activate and improve the surrounding streetscapes.
 The proposal is considered desirable in terms of Section 99(3) of the City of Cape
Town Municipal Planning By-Law.’
On 21 July 2016 the appellants were notified of that decision.

[22] Twelve appeals were lodged against the approvals by the MPT, including those
of the first two appellants and Professor Todeschini. I pause to record that at the time
that the appeals were lodged the Bo-Kaap had not formally been proclaimed an HPOZ
but that the City did consider that it should be done as a matter of priority.

[23] It is significant that in a report of the City in relation to the appeals, dated 19
October 2016, the following appears:

‘However, the existence of base rights in itself cannot be the sole reason for granting the
City’s approval under the general provisions of a HPOZ. In this regard, the department has
applied its mind and made recommendations to the MPT who, in turn, applied its collective
mind in making specific decisions. As a result, condition 3.2 of the Amended Annexure A
was imposed in order to further mitigate aspects of the proposal. Again, these are reflected
in the minutes and transcripts of the MPT meeting.’

[24] The first stage of the appeals were conducted at a meeting of the Mayoral
Advisory Panel (MAP) on 30 November 2016 and oral representations from some of
the appellants ensued. The MAP then sent a report to the Mayor containing its reasons
for approving the applications. The reasons, in addition to endorsing those of the MPT,
were as follows:
‘In addition to the proposal complying with the City of Cape Town Planning Policies i.e. Table
bay District Plan, Densification policy, Urban Design Policy and Tall Building Policy as
mentioned by the Municipal Planning Tribunal the proposal also complies with the City of Cape
Town Spatial Development Framework, the Integrated Development Plan, Economic Growth
Strategy, and the Transit Orientated Development Strategy.
Where there were errors in the notification process extra time was allowed and agreed to by
the applicant for people to submit comments on, or objections to the application.
Although only a portion of the property was affected by the HPOZ the department had treated
the application as if the whole property was affected by the HPOZ.
The panel was of the view that the application was desirable in terms of section (2)(d), as
contemplated in subsection (3), of section 99 of the MPBL.
In addition to the desirability of the application in terms of section 2(d) as contemplated in
subsection 3(i) related to traffic impacts, parking access and other transport related
considerations, the panel added that the application was desirable in that it bordered on
Buitengracht which is a high order road and is thus an ideal location for land use intensification
and increase density.
In terms of the transit development strategy more residential uses have to be encouraged in
the City centre to address inefficiencies in the City.
The application was sensitive to the Bo-Kaap area.
The massing and height of the building’s façade along Rose Street responds to the
neighbouring buildings’ on each side of the building.’ (My emphasis.)

[25] The second stage of the appeal process comprised of the Mayor considering
the MAP’s report as well as all the other information put before her and then making a
decision. She decided to accept the recommendation of the MAP and agreed with its
report. She stated that she took into account heritage concerns. Her reasons will be
further explored later in this judgment. The appellants had many complaints about the
City and the Mayor’s decisions, including many that were based on ‘procedural
irregularities’, such as the lack of time and opportunity to object, irregular pre-
submission consultations with the City’s officials, defective notifications, and not
making available material information to objectors. Before us these were advisedly,
not persisted in.

[26] On the substantive level the appellants were aggrieved, first, at the City’s
attitude in relation to how an overlay zoning that attached to one of the erven had to
be construed and applied. Overlay zonings are provided for in the DMS, which is
incorporated into the City’s By-law. Among the matters that have to be taken into
account in relation to an overlay zone are environmental, heritage and conservations
concerns. In the present case the overlay zone is an HPOZ, which emphatically
elevates heritage concerns, so it was contended. The appellants submitted that the
base zoning, which in the present case was mixed use, did not detract from the HPOZ.
Item 162 of the DMS provides that the following requires the approval of the city:
‘Any development, including any physical intervention, excavating or other action other than
those caused by natural forces, which may in any way result in a change to the appearance
or physical nature of a heritage place or influence its stability or future wellbeing including: (a)
the construction, alteration, demolition, removal or change of use of a heritage place or a
structure at a heritage place; (b) carrying out any works at a heritage place; and (c)
consolidation of land comprising a heritage place.’
The City is of course empowered to afford an exemption, but must do so consciously.
It did not, according to the appellants, apply its mind to this requirement.           .

[27] The appellants were adamant that s 24 of the Constitution,4 as well as the
NHRA obliged the City to have regard to the implications of the development on the
heritage values of the area. That obligation, they insisted, had not been met.

4 ‘Everyone has the right -
(a) to an environment that is not harmful to their health or wellbeing; and

[28] It was contended on behalf of the appellants that Riebeeck Square was a
significant link between the City and the Bo-Kaap and that the proposed development
would disturb that connection because of its sheer height and mass. In respect of
Heritage Square, it was submitted that the development, because of its size, would
impact on it for obvious reasons of proximity.

[29] The appellants made common cause with HWC in asserting that the stepped
massing, that is the proposed cascading of the eighteen-storey building down to a
height of approximately five stories on Rose Street, so as to attempt a gradual
transition between the tall façade on Buitengracht Street was an inadequate step to
mitigate the impact on the heritage value. The appellants accused the City and the
Developer of being deceptive, by providing photomontages of the proposed
development which inaccurately downplayed the height of the building.

[30] The bases of the objections by the appellants grew exponentially. The
appellants incorporated into their growing list of objections and complaints the City
and the Mayor’s failure to abide by the City’s Scenic Drive Policy, which they said was
implicated by the sheer height of the building. Simply put, on this score, the complaint
was that views would be affected, especially in relation to a drive along Buitengracht
Street, which the Scenic Drive Policy sought to prevent. In this regard they stated that
Buitengracht Street is protected as an S2 scenic drive from the bottom of Kloof Nek
Road to Coen Steytler Avenue. The appellants contended that the development would
affect the visual quality from the Bo-Kaap.

[31] In submissions before us reliance was primarily placed on s 99 of the By-law.
More about s 99 and the appellants’ stance in relation thereto, later. The appellants
also submitted that the City had ignored its own policies including those set out at the
end of para 8 above. The appellants accused the City of having failed to have proper

(b) to have the environment protected, for the benefit of present and future generations, through
easonable legislative and other measures that -
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting
justifiable economic and social development.’

regard to its own Tall Building Policy. That policy requires the City to have regard to
the impact of proposed tall buildings. Moreover the appellants contended that the
photomontages of what a completed building would look like, presented by the
Developer as part of its application and for the public to comment upon, were deceptive
and underplayed the visual impact of the building the Developer intended to erect. The
appellants asserted that what was required, especially in the light of the reservations
of the EHM, was a visual impact study. This had not been called for by the City.

[32] Furthermore, the appellants stated that the City completely ignored its own
context sensitive Densification Policy, more particularly, that the scale and character
– bulk, height and architectural styling – of high density areas must be appropriate to
the context. In the present case, so it was contended, the proposed development was
contextually inappropriate.

[33] Moreover, the appellants went on to rely on the City’s Urban Design Policy
(UDP). This policy, so it was asserted, was to ensure that the design process and
formulation of development did not further contribute to the segregated nature of Cape
Town, inherited from apartheid. The appellants took the view that the approval of the
development effectively cut the Bo-Kaap off from the rest of the city.

[34] The appellants continued growing their grounds of objection by placing reliance
on the Cultural Heritage Strategy for the City which, as the name suggests, recognises
the rich cultural history of Cape Town. This is another nuance of the repeated
accusation that heritage concerns were ignored by the City and the Mayor.

[35] The appellants alleged further that the City had failed to enforce the special
condition attached to the Title Deed in relation to Erf 144698, referred to in para 7
above. They pointed out that the Developer had not made any application to the City
for the relaxation of the condition. Thus, so it was contended, the City ought not to
have approved the applications by the Developer.

[36] In its answering affidavit opposing the relief sought by the appellants, the City
pointed out, at the outset, that the subject properties are not located within the Bo-
Kaap. It provided a three-dimensional depiction of the building and its surrounds,

which it contended provided a better understanding of the photomontages supplied by
the Developer. The City contended that the three-dimensional analysis showed that
the development would blend in with the surrounding area.

[37] According to the City, the heritage statement presented by the Developer
provided an accurate description of the history of the area immediately surrounding
the proposed development. The City and the Mayor emphasised that the properties in
question lie within a band of commercial properties between Rose and Buitengracht
Streets and, further, that commercial properties had already intruded and later come
to dominate the block from the early part of the twentieth century. Over time, residential
areas were replaced with commercial properties, such as car salesrooms and car
service centres, parking areas, wholesale and light manufacturing. In this regard, the
City placed reliance on aerial photographs, which show the stark contrast between the
block related to the proposed development and the Bo-Kaap. In essence the City
contended that extensive residential and commercial developments already existed
within the block in which the development was located, as well as within its immediate
vicinity, as opposed to the Bo-Kaap and its unique architecture and character. The site
itself, the City and the Mayor pointed out, has no inherent heritage value.

[38] According to the City, the site in question was already earmarked for
development from the late 1940s. New buildings in the CBD were allowed up to a
maximum height of 37m on streets wider than 18.5m, such as Buitengracht Street,
and up to a height of 25m on streets wider than 12.5m. This was followed by a period
of economic decline and inner-city decay. In 2003 this was reversed when residential
units such as the Studios, adjacent to the subject properties, were developed. These
developments were a form of city living, which now appears to be a growing trend
throughout the world. More recent developments in the area include the Hilton Hotel,
on the corner of Buitengracht and Wale Streets, and 35 on Rose, mentioned in para
12  above.

[39] The latest development on which construction had already started at the time
of commencement of litigation in the court below is called ‘117 on Strand’, and is
situated between Rose, Strand, Ciappini and Castle Streets, adjacent to the Bo-Kaap.
It is 150m away from the subject properties and indeed very similar to the development

under discussion. 117 on Strand is a 17 storey building, comprising 117 apartments,
with underground parking, 5 200m2 of retail outlets and 6 600m2 of office space.
Moreover, 117 on Strand is staggered away from the Bo-Kaap. That development was
not challenged by HWC or the appellants.

[40] The City pointed out that Rose Street is a minor two-way street, providing a
dividing line between the CBD and residential Bo-Kaap. As stated earlier, each side
of the street has a very distinct character. On the western (Bo-Kaap) side, the
residential buildings are typically single to two storeys, set on the advancing slope of
Signal Hill. On the eastern (CBD) side of Rose Street the buildings are mostly three
storeys and higher, currently up to nine storeys. For instance, immediately to the south
of the proposed development is the nine storey high Studios building, on erf 148791,
containing flats and some business premises. Immediately to the north of the
development is 35 on Rose, a six-storey block of flats and offices, situated on erf
166963.

[41] Riebeeck Square, a Provincial Heritage Site (PHS), which is on the eastern side
of the proposed development, as described above, is a large open area currently used
for parking. It is designated as a public open space, and is bounded by the treed
avenues of the surrounding streets. St Stephan’s Dutch Reformed Church is also a
declared PHS and is situated along the Bree Street edge of the square. It is
uncontested that Riebeeck Square has deteriorated over the last few decades. The
City adopted the view that developments such as the one in question should be
supported as they will breathe new life into the square. Surrounding Riebeeck Square
are offices and businesses, the old Christiaan Barnard Hospital (Netcare) as well as
Heritage Square.  A positive change has been the renovation and restoration of
Heritage Square, with restaurants that are open in the evenings. The City is adamant
that introducing residential areas, such as the proposed development around
Riebeeck Square, may be a catalyst to develop a more human orientated facility,
rather than a vehicle orientated facility.

[42] The City’s position in relation to the base zoning and overlay zoning is set out
hereafter. Both categories depict a land use prescribed by the DMS regulating the use
of and development of land and setting out the purposes for which land may be used

and the development rules applicable to that land use category. In its answering
affidavit, the City accepted that the approval for use of property under the DMS had to
take into account various policies and principles, as well as environmental and land
use considerations. The City was adamant, however, that designations under the DMS
remained the starting point. It pointed out that base zoning meant the zoning before
the application of any overlay zoning and may include a subzoning as contemplated
in the DMS. Overlay zoning is a zoning, in addition to the base zoning, stipulating the
purposes for which land may be used and the development rules, which may be more
or less restrictive than the base zoning. The City explained that the MU3 base zoning
which attaches to the property in question, applies to all properties in the area between
Buitengracht and Rose Streets. The City’s position was that the base zoning confers
various primary permitted uses for which approval is not required. The base zoning in
question allows for a range of uses, including business purposes and flats. The overlay
zoning in question requires that environmental, heritage protection, and conservation
concerns be taken into account.

[43] According to the City there are three relevant overlay zones designated by the
City. First, is the Cape Town CBD Local Area Overlay Zoning. This is referred to as
the CBD LAO. The second is the Central City Heritage Protection Overlay Zoning. This
is known as the Central City HPOZ. The third is the Table Bay Scenic Drives Overlay
Zone, which it is to be noted, does not include Buitengracht Street. According to the
City the development proposal makes use of the maximum height allowed by the MU3
base zoning.

[44] The City’s position was that the height and the scale of the proposed
development is within all of the rights that attached to properties in that zoning and the
CBD LAO. The City emphasised that the proposed development will, in fact, not utilise
the full extent of conferred developmental rights.

[45] The City pointed out that the properties in question also fall within an urban
development zone. This was introduced in 2003 and is a tax incentive, aimed at
revitalising inner city areas by attracting capital investments in commercial and
residential property through a tax rebate. The idea, so the City said, was to bring

people back to the central city to live, play and work, through appropriate residential
and business densification, affordable housing and mixed usage buildings.

[46] The City also insisted that it applied its own density priority zone policy and that
the CBD was an urban civic upgrade area into which the proposed development fitted
snugly.

[47] In dealing with the appellant’s criticisms against the approval process, the City
referred to the expert knowledge and experience of members of the MPT. They all
have impressive academic and practical credentials. So, too, the members of the
MAP. The same applied to the Mayor’s technical advisor. It was pointed out that all of
these experts agreed that the applications for the development proposal should be
approved.

[48] According to the principal deponent on behalf of the City, the comments made
by interested parties when the proposal was advertised caused the City’s Land Use
Management Department to obtain further input on historical aspects of the area from
the EHM. It acknowledged that the EHM was concerned about the height and scale of
the proposed development and recommended a reduction in height, with a revised
design that related more appropriately to heritage concerns. The EHM suggested that
comment be solicited from HWC. The latter accepted that a permit was not required
in terms of s 27(18) of the NHRA. HWC did not consider the stepping down effect to
Rose Street to be adequate in mitigating heritage impact. It considered the proposed
development’s 60m height to be inappropriate. HWC did not, however, in principal,
object to the erection of the new building.

[49] The City was impressed by the fact that, after receipt of the aforementioned
heritage concerns, the Developer sought to address them by making significant
changes. The Developer, according to the City, did reduce the scale of the proposal
and set the building back further from street boundaries. The part of the building
immediately adjacent to Rose Street was reduced in height, from 5 to 3 storeys, and
the Developer also procured the heritage statement referred to earlier. That statement
accepted that the proposed development would have to be sensitive to the heritage

resources surrounding it. The Developer also contended that the impact on the
townscape and streetscape was positive.

[50] The report to the MPT reiterated that the bulk of the proposed development was
towards the centre of the CBD, to abut other tall buildings. The CBD is the economic
hub of Cape Town. It also indicated that the bulk of the building is at the lower levels,
9 storeys and below, which is at a height similar to the adjacent building on erf 148791.
Significantly, the following appears in the report:
‘Based on the existing rights applicable to the property, this department prefers the current
proposal over a proposal solely based on the primary rights allowable to the property given
the building setbacks, massing and heights proposed. The proposal provides an effective
transition between the City and Bo-Kaap, while being mindful of the heritage resources in the
area.’

[51] In relation to the title deed condition, the following was stated:
‘[T]he condition points in a design direction. It suggests that, in order to fully clarify the interface
along Rose Street and to create the best possible street interface and transition, a condition
should be imposed to allow for further consideration of this façade. As I shall explain below,
the City will take a decision on whether it will exercise the discretion conferred by the title deed
condition, during the building plan stage.’

[52] The transcript of the MPT hearing shows that there was extensive discussion
of development rights and heritage concerns. There was also a discussion about the
application of s 99 of the By-law, which dictates that when applications of the kind
under consideration are decided the social and economic impact should be taken into
account. As far as the City was concerned the unanimous approval of the applications
was reached in balanced fashion, as required by s 99.

[53] In relation to the MAP meeting, the City explained that the appellants addressed
the meeting as did the Developer’s representatives and that this was followed by
extensive discussion. The MAP’s recommendations and reasons are contained in the
minutes of that meeting. The MAP recommended, unanimously, that the appeal be
dismissed. In respect of the Mayor’s decision, the City recorded that she had been
provided with all the documents and materials that were provided to the MAP. In

addition, she had been supplied with the appeals themselves and a report prepared
by the Acting District Manager. She was also placed in possession of the minutes of
the MAP meeting, of 30 November 2016, as well as the report prepared by the
Chairperson of the MAP, Dr Johan van der Merwe.

[54] The City and the Mayor were adamant that she had carefully considered all of
the information placed before her. She engaged in several consultations and
discussions with her technical advisor and with her principal legal advisor. It is
uncontested that she conducted an inspection of the site of the proposed development
and the surrounding areas, accompanied by her technical and legal advisors. She was
aware of the HPOZ attaching to one of the subject erven and was careful to observe
the position of the proposed development in relation to the Bo-Kaap and to make an
assessment of its impact on nearby heritage resources, Riebeeck Square and Rose
and Buitengracht Streets.

[55] The Mayor was aware of the base zoning and the other buildings in the
immediate vicinity of the proposed development. The City and the Mayor insisted that
they had regard to heritage considerations and balanced that against the other
necessary factors. It was only after the Mayor had done so that she reached a decision
to dismiss the appeals.

[56] It is necessary to have regard to the Mayor’s written reasons for accepting the
recommendation of the MAP:
‘I accept the recommendation of the Advisory Panel and agree with its Report to me. I
considered, in particular, the view of the City’s Environment and Heritage Department that the
surrounding heritage resources will be impacted on in a negative manner to a certain degree
by the proposed development due to the design’s sheer size, height and magnitude. However,
I agree with the MPT and the Advisory Panel that the proposed development responds
appropriately to the neighbouring buildings and the environment.’

[57] Significantly, the Mayor stated the following in her affidavit opposing the relief
sought by the appellants:
‘Finally, it should be apparent from the appeals process and record of decision that I did not
decide the appeals on the basis that the City is not entitled to limit primary rights conferred by

the development management scheme when considering an application for development
falling within a heritage protection overlay zone. My belief was, and remains, that it was not
necessary to do so because the proposed development responds appropriately to surrounds
and that sufficient mitigating measures and conditions were put in place to address the
heritage concerns raised.’

[58] The high court, in adjudicating the dispute between the appellants and the
respondents, had regard to the provisions of s 99 of the By-law and the prescribed
criteria in terms of which applications for approvals of the kind in question are to be
decided. Le Grange J considered the sequence of events and the documentation
referred to earlier in this judgement. The court below took into account the comments
by the City’s EHM, the objections by the appellants and all the other information
available to the City and the Mayor. The court held that both s 99 of the By-law and
Item 162 of the DMS required the decision- makers, the City and the Mayor, to take
into account heritage concerns. Le Grange J concluded that whether one was dealing
with the provisions of s 99 or with the relevant provisions of the DMS, heritage
concerns could not be considered to be the pre-eminent or sole criteria in deciding
applications such as those in the present case. The court found that it is but one of a
basket of factors to be balanced in order to arrive at a decision.

[59] The court below dealt with the appellants’ complaint that the City and the Mayor
did not engage with the views expressed by HWC and the EHM and thus failed to
have any real regard to the development’s impact on heritage. It is necessary to set
out, in some detail, the court’s reasoning on this aspect. In this regard, paragraph 88
– 93 of Le Grange J’s judgment are of particular relevance:
’It needs to be mentioned that the MPT and the Mayor were not only obliged to consider
heritage but a far broader range of issues, including heritage. It is difficult to accept that the
City had no regard or failed to have appropriate regard to heritage impact when it considered
the Developer’s planning applications, as this contention by the Applicants, is not borne out
by the papers filed of record.
There can be no misgivings that heritage enjoyed a distinct degree of attention throughout the
various stages of the application. The objectors’ concerns, as noted by Heydenrych, were the
height, massing and position of the building. On this point it was noted by Heydenrych that the
bulk of the building was on the lower levels (9 storeys and below) “which is at a similar height
to the adjacent existing building on Erf 148791”; the revised proposal by the Developer were

preferred over a proposal based solely on primary rights; it was considered that the proposal
provided an effective transition between the City and Bo-Kaap while being mindful of the
heritage resources in the area; it was further found that the development had taken care with
regard to the surrounding heritage elements and that the impact of the building was mitigated
by the setbacks applied to the building which limited its impact on the surrounding heritage
resources.
A member of the MPT considered that the redesign and mitigation measures achieved a
balance between the developer’s statutory rights and the built infrastructure of the Bo-Kaap
and the MPT gave as a reason for their decision the fact that the proposal takes cognizance
of the heritage resources within the area.
At the MAP, one of  [the] councillors was of the view that the application responded to the
HPOZ and that the developer had been sensitive to the Bo-Kaap by scaling down the building
on the Rose Street side. Another councillor of the MAP thought that the design had been as
sensitive as possible. The MAP also echoed the reasons for the MPT’s decision by finding
that the proposal took cognizance of the heritage resources within the area.
The Mayor agreed with the MAP. The following was recorded:
“I accept the recommendation of the Advisory Panel and agree with its report to me. I
considered, in particular, the view of the City’s Environment and Heritage Department that the
surrounding heritage resources will be impacted on in a negative manner to a certain degree
by the proposed development due to the design’s sheer size, height and magnitude. However,
I agree with the MPT and the Advisory Panel that the proposed development responds
appropriately to the neighbouring buildings and the environment.’’
The City further considered the fact that the bulk of the building was moved away from the Bo-
Kaap towards Buitengracht Street. Secondly, the Rose Street façade of the building would
only be three storeys which is entirely in keeping with the vernacular of the Bo-Kaap and the
Second Applicant’s building.’

[60] The court below held that the City and the Mayor had arrived at the decisions
referred to above in a balanced fashion that they did not act unreasonably or
irrationally. The Mayor and the City did not commit an error of law and they did not
ultimately hold a rigid view that base zoning rights trumped all countervailing
considerations. Insofar as all the other allied bases of objection of the appellants were
concerned, the following is relevant:
(a) In respect of the lack of a visual impact assessment, the court held that no height
departure was required in terms of the Tall Buildings Policy, which left the City with a
wide discretion in respect of whether to require a visual impact assessment from a

prospective developer. Sufficient information was provided so as to enable the City
and the Mayor to assess the visual impact of the building.
(b)  In relation to the appellants’ complaint that the City and the Mayor failed to have
due regard to the proposed development’s impact on traffic, the court below found that
the challenge was unmerited. Le Grange J recorded that the inner city is congested in
many places during peak hours, but that that cannot be held to mean that the entire
enterprise of providing further retail and residential opportunities within for the CBD
must now be abandoned. The court held that the recommendations set out in the traffic
impact assessment, which for present purposes need not be repeated, and the
conditions of approval which included costs accruing to the Developer, were adequate
to deal with traffic-related problems.

[61] The court below rejected HWC’s contention that s 27(18) of the Heritage Act
was triggered and that declaratory relief in that regard was justified. Since HWC is no
longer before us, and since no other party persisted in that argument, there is no need
to deal with that aspect. Relying on the principal of subsidiarity the court below held
that appellants’ further reliance on s 24 of the Constitution was misplaced. In the result
the court made the following order:
‘The Review application and the Fourth Applicant’s application for a Declaratory order are
dismissed with costs. The Applicants are to pay the Respondents’ costs jointly and severally,
the one to pay the other to be absolved. Such costs to include the costs of two counsel.’

[62] Before turning to deal with whether the conclusions of the court below set out
above and the ensuing order were well-founded, it is necessary at the outset to deal
with a preliminary matter. Shortly before the appeal was heard an application to lead
further evidence on appeal was filed on behalf of the appellants. In short, it related to
an enquiry conducted by a firm of attorneys in Cape Town, after allegations were made
by as yet unidentified members of the EHM in relation to the then Mayor’s antipathy to
heritage concerns.5 The allegations made were serious and the Mayor was accused
of abusing her position and being guilty of misconduct and misrule by deliberately
ignoring any input or assertions about heritage concerns. Although Professor
Todeschini had made public utterances about bias and mala fides on the part of the

5 The Mayor who made the decision in question is no longer in office.

City and the Mayor, these were not repeated in the affidavits on which the application
in the court below was based. While there was not a complete disavowal of Professor
Todeschini’s stance, there was, for the purposes of the litigation, a dissociation from
the allegations of mala fides and bias.

[63] The basic problem for the applicants in relation to the admission of new
evidence is that the recommendation by the firm of attorneys was that the allegations
set out in the preceding paragraphs require investigation and that their veracity must
be tested.  The City has accepted the recommendation, but the investigation has not
yet commenced. The City has also made it known, publicly, that the allegations
concerning the Mayor will be contested. The allegations, sought to be adduced on
appeal, are hearsay. They remain untested and are from a source that is generic rather
than specific. There has been no attempt to obtain first-hand substantiation of the
allegations made. Moreover, there has been no attempt to have the evidence adduced
in terms of the Law of Evidence Amendment Act 45 of 1988. Section 3(1) of that Act
provides that as a general rule hearsay evidence is inadmissible. There are a few
exceptions, one of which is that evidence should be admitted in the interest of justice,
if the court so opines after considering all relevant factors, including the reason why
such evidence is not given by the person upon whose credibility the probative value
depends. There are also all the other requirements provided for in s 3(1)(c) that a court
has to consider before such evidence is admitted. As stated above no attempt was
made in terms of s 3 of the Evidence Amendment Act to lay a basis for the admission
of the evidence.

[64] The legal principals regulating the admission of further evidence on appeal are
well-established. Our courts have repeatedly stated that, in the interest of finality, a
court’s power to receive further evidence in terms of s 19(b) of the Superior Courts Act
10 of 20136 should be exercised sparingly and that further evidence on appeal should
only be admitted in exceptional circumstances.7 As stated in the preceding paragraph,
the evidence sought to be placed before us is, in general terms, inadmissible and no
legal basis has been provided for its reception. Furthermore, it is an attempt to make

6 Previously s 22(a) of the Supreme Court Act 59 of 1959.
7 De Aguiar v Real People Housing (Pty) Ltd [2010] ZASCA 67; 2011 (1) SA 16 (SCA) paras 9-12 and
the authorities there cited.

out a new case on appeal on as yet untested allegations. In light of what is set out
above we are disinclined to admit the evidence and the necessary order will be made
at the end of this judgment.

[65] I now turn to deal with the substance of the appeal. Before us counsel on behalf
of the appellants were constrained to restrict their submissions to the question whether
the criteria under s 99 of the By-law, the provisions of which are set out hereafter, were
adhered to by the City and the Mayor. In short, the nub of the appellants’ case, whether
by reference specifically to the By-law or to the labyrinth of policies, strategies and
statutory provisions, was that heritage considerations were ignored or downplayed and
that the decisions by the City and the Mayor were therefore unreasonable, irrational
or tainted by the City’s mistaken position in relation to base zoning rights. Section 99
provides as follows:
‘99. Criteria for deciding application
(1) an application must be refused if the decision-maker is satisfied that it fails to comply with
the following minimum threshold requirements -
(a) the application must comply with the requirements of this By-law;
(b) the proposed land use must comply with or be consistent with the municipal spatial
development framework, or if not, a deviation from the municipal spatial development
framework must be permissible;
(c) the proposed land use must be desirable as contemplated in subsection (3); and
(d) in the case of an application for a departure to alter the development rules relating to
permitted floor space or height, approval of the application would not have the effect of
granting the property the development rules of the next subzone within a zone.
(2) if an application is not refused under subsection (1), when deciding whether or not to
approve the application, the decision-maker must consider all relevant considerations
including, where relevant, the following -
(a) any applicable spatial development framework;
(b) relevant criteria contemplated in the development management scheme;
(c) any applicable policy or strategy approved by the City to guide decision making;
(d) the extent of desirability of the proposed land use as contemplated in subsection (3);
(e) impact on existing rights (other than the right to be protected against trade competition);
(f) in an application for the consolidation of a land unit -
(i)
the scale and design of the development;
(ii)
the impact of the building massing;

(iii)
the impact on surrounding properties; and
(g) other considerations prescribed in relevant national or provincial legislation.’

[66] Section 99(3), as amended, provides that certain considerations come into play
when the desirability of a proposed development is being considered in terms of s
99(2)(d). These are socio-economic impact, compatibility with surrounding uses,
impact on the external engineering services, impact on safety, health and wellbeing of
the surrounding community, impact on heritage, impact on the biophysical
environment, traffic impacts, parking, access and other transport related
considerations, and whether the imposition of conditions can mitigate an adverse
impact of the proposed land use.

[67] As can be seen, s 99 has to be applied in distinct stages. First, there is the
threshold enquiry set out in s 99(1). The proposed land use must be consistent with
the municipal spatial development framework. The base zoning is a convenient
starting point. It does allow for the kind of development here in question. Insofar as
desirability is concerned, which is intimately associated with the core issue, the factors
set out in s 99(3) of the By-law come into play. In relation to socio-economic impact,
the City’s view was that the proposed development would have a positive effect on
commercial life and inner city living and on regeneration and rejuvenation of the CBD.
The City’s experts in relation to engineering services, safety and health were all in
accord. They took the view that those aspects were adequately dealt with by the
proposed development and had no concerns in that regard. So, too, with the traffic,
parking, access and transport related considerations, including, the conditions put in
place in relation thereto, (as noted by the court below).

[68] It is now necessary to deal with the core complaint, postulated in the court below
and before us, namely, that the City and the Mayor were averse to dealing with any
criticisms concerning heritage impact, that they had adopted a rigid approach
concerning the base zoning and assumed the attitude that base zoning trumped or
negated all other considerations.

[69] Whilst it is unfortunate that City officials, the MPT and the MAP used language
that was sometimes confusing, the question to be addressed is whether, in fact, they

had regard to the criteria set out in s 99 of the By-law, referred to in preceding
paragraphs. It is true that they referred to rights conferred in terms of base zoning and
on occasion spoke about the sacrifice of rights. It is equally true that the documents
indicate that they engaged with heritage concerns and considered the massing away
from Rose Street as a significant concession to heritage concerns. The part of the
City’s report set out in para 50 above makes it clear that the City ultimately did not
consider the primary or base zoning rights to trump all other considerations. In relation
to the title deed condition, referred to above, upon which the appellant’s relied, the City
adopted the attitude that the title deed condition would be enforced when building
plans are submitted by the developer.

[70] The mass of documentation produced by the parties to the litigation is a clear
indication that the full range of countervailing interests were seriously and extensively
engaged with. At this stage of the consideration of whether the application for review
of the approvals by the City and the Mayor was well founded, it is apposite to consider
what judicial review entails. In Endicott Administrative Law at 328 the following
appears:
‘All public authorities ought to make the best possible decisions (and Parliament can be
presumed to intend that they should do so). But that does not mean that the judges have
jurisdiction to hold that a decision was ultra vires on the ground that it was not the best decision
that could have been made.’8

[71] Wade and Forsyth Administrative Law state the following:
‘The system of judicial review is radically different from the system of appeals. When hearing
an appeal the court is concerned with the merits of a decision: is it correct? When subjecting
some administrative act or order to judicial review, the court is concerned with its legality: is it
within the limits of the powers granted? On an appeal the question is “right or wrong?” On
review the question is “lawful or unlawful?”
. . .

Judicial review is thus a fundamental mechanism for keeping public authorities within due
bounds and for upholding the rule of law. Instead of substituting its own decision for that of

8 T Endicott Administrative Law 4 ed (2018).

some other body, as happens when on appeal, the court on review is concerned only with the
question whether the act or order under attack should be allowed to stand or not.’9

[72] Laws J in R v Somerset County Council, ex parte Fewings & others [1995] 1 All
ER 513 (QB) at 515d-g stated:
‘Although judicial review is an area of the law which is increasingly, and rightly, exposed to a
great deal of media publicity, one of its most important characteristics is not, I think, generally
very clearly understood. It is that, in most cases, the judicial review court is not concerned with
the merits of the decision under review. The court does not ask itself the question, “Is this
decision right or wrong?” Far less does the judge ask himself whether he would himself have
arrived at the decision in question. It is, however, of great importance that this should be
understood, especially where the subject matter of the case excites fierce controversy, the
clash of wholly irreconcilable but deeply held views, and acrimonious, but principled, debate.
In such a case, it is essential that those who espouse either side of the argument should
understand beyond any possibility of doubt that the task of the court, and the judgment at
which it arrives, have nothing to do with the question, “Which view is the better one?”
Otherwise, justice would not be seen to be done: those who support the losing party might
believe that the judge has decided the case as he has because he agrees with their
opponents. That would be very damaging to the imperative of public confidence in an impartial
court. The only question for the judge is whether the decision taken by the body under review
was one which it was legally permitted to take in the way that it did.’

[73] Schreiner JA in Sinovich v Hercules Municipal Council 1946 AD 783 at 802-
803 said:
‘The law does not protect the subject against the merely foolish exercise of a discretion by an
official, however much the subject suffers thereby. But the law does protect the subject against
stupid by-laws or regulations, however well intended, if their effect is sufficiently outrageous.’

[74] Hoexter makes the point as follows in Administrative Law in South Africa (2 ed)
at 113:
‘In administrative law “judicial review” refers more specifically to the power of the courts to
scrutinise and set aside administrative decisions or rules (delegated legislation) on the basis
of certain grounds of review.’10

9 Wade & Forsyth Administrative Law 11 ed (2014) at 26.
10 C Hoexter Administrative Law 2ed (2012) at 113.

[75] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism
and Others [2004] ZASCA 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC),
O’Regan J explained that s 6 of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) identifies the circumstances in which the review of administrative action might
take place. The authority for that basis is the Constitution.11

[76] In the present case, the focus before us was whether the City and Mayor were
materially influenced by an error of law in that they allegedly adopted the attitude that
base zoning negated or trumped all countervailing considerations. It was also in
general terms submitted that the approvals were irrational or were so unreasonable
that no reasonable person could have reached that decision. This, in essence, was
reliance on the grounds of review provided for in s 6(2) of PAJA. In adjudicating
whether those grounds are justified, we are precluded from considering whether we
would have reached a decision within a band of decisions, but rather whether the
grounds of review provided for in s 6(2) of PAJA and relied on by the appellants are
sustainable.

[77] In determining whether a decision was reasonable or not, factors to be
considered are the nature of the decision, the identity and expertise of the decision-
maker, the range of factors relevant to the decision, the reasons given for the decision,
the nature of the competing interests involved, and the impact of the decision on the
lives and well-being of those affected.12 As taught by the Constitutional Court, although
the review function of courts now has a substantive as well as a procedural ingredient
the distinction between appeals and reviews continues to be significant. 13

[78] In Bato Star the following was stated:
‘In treating the decisions of administrative agencies with the appropriate respect, a court is
recognising the proper role of the executive within the Constitution. In doing so a court should
be careful not to attribute to itself superior wisdom in relation to matters entrusted to other
branches of government. A court should thus give due weight to findings of fact and policy

11 Para 25.
12 Bato Star Para 45.
13 Bato Star Para 45.

decisions made by those with special expertise and experience in the field. The extent to which
a court should give weight to these considerations will depend upon the character of the
decision itself, as well as on the identity of the decision-maker. A decision that requires an
equilibrium to be stuck between a range of competing interests or considerations and which
is to be taken by a person or institution with specific expertise in that area must be shown
respect by the courts.’14

[79] Returning to the facts of the present case, as stated above, the City’s officials,
the MPT and the MAP, despite the use of somewhat opaque language, in fact had
regard to heritage concerns. They all engaged with the Developer and objectors on
that aspect. In truth, the balance envisaged by s 99 was achieved. The City’s experts
and those who served on the MPT and MAP were undoubtedly qualified to deal with
the subject matter, as was the Mayor’s technical advisor. It is not for the court to
second-guess these experts, save where they committed a reviewable irregularity.
This is not to imply judicial timidity but rather to ensure that when judicial intervention
occurs it is based on principle and within the bounds of the law, including observing
the doctrine of the separation of powers. The court below, in my view, cannot be
faulted for holding that the City’s experts had regard to relevant considerations and
were not guilty of the irregularities they were accused of.

[80] Even if it could be argued that what is set out in the preceding paragraph is too
charitable to the City’s officials and departments, there is a further obstacle for the
appellants to overcome. The appeal before the Mayor, it was accepted by counsel on
behalf of the parties, was an appeal in the wide sense, so that the merits of the
applications for approval could be considered afresh.15 It amounts to a re-hearing of
the merits of the matter with or without further evidence or information. It was accepted
by counsel on behalf of the appellants, that whatever flaws there might conceivably
have been in relation to the decision of the MPT, that in the event of a finding that the
Mayor’s decision was untainted by a reviewable irregularity, that would be sufficient to
thwart success in the appeal.

14 See para 48.
15 Golden Arrow Bus Services v Central Road Transportation Board and Others [1948] 3 All SA 478
(A); 1948 (3) SA 918 (A) at 925, 1948 (3) All SA 478 (A); South African Broadcasting Corporation v
Transvaal Townships Board and Others 1953 (4) SA 169 (T) at 178A-D; Tikly and Others v Johannes
NO and Others 1963 (2) SA 588 (T) at 590G-H.

[81] In paras 56 and 57 above the Mayor’s reasons for arriving at her decision, as
well as the statement from her opposing affidavit, are set out. They undoubtedly reveal
that she considered the base zoning as well as all the other aspects she was obliged
to take into account. In particular, she took into account heritage concerns especially
those raised by the EHM. She had all the expert advice she required in order to enable
her to reach a balanced decision in terms of s 99. Insofar as the allied aspects related
to the core question are concerned, such as traffic, access and the provisions of
parking bays, as demonstrated above, the court below dealt with them all in a manner
that cannot be faulted. In the result the appeal must fail.

[82] What remains is the question of costs. In respect of costs, the court below said
the following:
‘There is no reason why the usual position relating to costs in review matters should not apply.
The rule that in constitutional matters, the unsuccessful party is ordinarily not ordered to pay
costs, does not apply in this instance.’

[83] The appellants contended that they were vindicating constitutional rights and
therefore the principle set out in Biowatch Trust v Registrar, Genetic Resources and
Others [2009] ZASCA 14; 2009 (6) SA 232 (CC) at para 22 applies, namely that,
ordinarily in constitutional litigation, if the government loses it should pay the costs of
the other side, and if the government wins, each party should bear their own costs.

[84] It was submitted on behalf of the respondents that the question of costs properly
falls within the discretion of the court, having regard to all of the prevailing
circumstances. In the present case it was pointed out that the first appellant’s litigation
was funded by Ms Petra Wiese, a neighbour and a person of means who also has an
interest in the neighbouring building, 35 on Rose Street. It was pointed out that both
Ms Wiese and Professor Todeschini had property interests in the vicinity of the building
and stood to benefit in the event of success in the litigation. The agreement to fund
the litigation included an indemnification by Ms Wiese against a costs order that might
result against the first appellant. In proper perspective, the application in the court
below was about whether s 99 of the By-law was complied with by the City. The second
and third appellants had proprietary rights that might be affected by the City’s decision.

The first appellant, as indicated above, was placed in funds and indemnified against
cost orders.

[85] Furthermore, the scale of the present litigation was excessive. It might well have
been driven by the funding that was available. As described at the commencement of
this judgment and demonstrated later, the issues, properly distilled, were within a
narrow compass. The necessity for photomontages and extensive affidavits in relation
to the disputation concerning the impact of an 18-storey building is questionable. One
need not be an architect or a construction expert to understand that an 18 storey
building is imposing.

[86] As has been stated by this court in National Home Builders’ Registration
Council & another v Xantha Properties 18 (Pty) Ltd [2019] ZASCA 96; 2019 (5) SA
424 (SCA) at para 26,  the mere labelling of litigation as ‘constitutional’ is insufficient.
For the Biowatch principle to apply the case should raise genuine, substantive,
constitutional considerations. The rule does not mean risk-free asserted constitutional
litigation. I can find no detectable misdirection on the part of the court below in relation
to cost.

[87] For all the reasons stated above, the following order is made:

1 The application to lead further evidence on appeal is dismissed with costs,
including the costs of two counsel.
2 The appeal is dismissed with costs, including the costs of two counsel.

_________________
M S Navsa
Judge of Appeal

APPEARANCES

For Appellant:

P Farlam SC, with him K Pillay
Instructed by:
Edward Nathan Sonnenbergs Inc,
Cape Town
Lovious Block Inc, Bloemfontein

For First to Third

L A Rose-Innes SC, with him
H J de Vaal SC
Respondent:

Instructed by:

Fairbridges Wertheim Becker,

Cape Town

McIntyre van der Post, Bloemfontein

For Fourth Respondent:
S P Rosenberg SC and D W Baguley

Instructed by:

Bernadt Vukic Potash & Getz, Cape Town

Honey Attorneys Inc, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others (Case
no 112/2019) [2020] ZASCA # (23 March 2020)

From:
The Registrar, Supreme Court of Appeal

Date:
23 March 2020

Status:
Immediate

The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgment of, nor is it binding on, the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) handed down judgment in an appeal against a decision of
Le Grange J, sitting in the Western Cape Division of the High Court, Cape Town (the high court). The
appeal was dismissed with costs, including the costs attendant upon the employment of two counsel.

The matter dealt with the lawfulness of certain decisions of the first respondent, the City of Cape Town
(the City), to approve the land use applications of the fourth respondent, Buitengracht Properties (Pty)
Ltd (the Developer). These applications concerned the construction of an eighteen-story building, 60
metres tall (the proposed development), in the immediate vicinity of a heritage sensitive area, the Bo-
Kaap. The legal question to be adjudicated was whether the City, through its Municipal Planning
Tribunal (MPT), the second respondent, and, ultimately, through its Mayor, the third respondent, by way
of an internal appeal process, had due regard to the heritage concerns provided for in the applicable
legislation and policies and thus complied with administrative-law principles.

The first appellant is the Bo-Kaap Civic and Ratepayers Association, a voluntary association that
claimed to represent the interests of residents and ratepayers of the Bo-Kaap. The second appellant,
the Body Corporate of 35 on Rose, is a residents’ association and, as the name suggests, the body
corporate responsible for that property, which is located close to the erven in question. The third
applicant in the high court was Professor Fabio Todeschini, an architect, city planner, urban designer
and heritage practitioner, who also owned property in the Bo-Kaap. He has since passed away and was
substituted as a litigant in this appeal by the executors of his estate, the third appellant.

The three appellants brought an application in the high court for the review and setting aside of the
approvals, as well as the Mayor’s decision in the internal appeal process. Le Grange J held that the
decisions were lawful and dismissed the application with costs. Heritage Western Cape (HWC), a
provincial heritage agency established in terms of s 23 of the National Heritage Resources Act 25 of
1999 (the NHRA), had intervened in the proceedings and supported the review application. HWC sought
an order, in addition, declaring that the intended development could not proceed without a permit issued

in terms of s 27(18) of the NHRA. The application for that order was also dismissed. It is against these
findings that the present appeal is directed, leave to appeal being granted by the court below.

The SCA had regard to the history of the Bo-Kaap, which reflects the political processes in South Africa
during the apartheid years. The area is closely associated with the traditionally Malay community of the
Cape, which is predominantly Muslim. On this score it was noted that the Auwal Mosque, which was
the first Mosque at the Cape, was constructed in the Bo-Kaap neighbourhood in 1804 and remains in
use. The SCA had further regard to two other areas of heritage concern in the vicinity of the proposed
development, namely, Riebeeck Square and Heritage Square. The former is of historical significance
in that it is a square around which Cape Town developed; and where farmers, during South Africa’s
colonial past, would outspan their wagons and offload their produce. It has over the years deteriorated
and is currently used as a parking lot. The second, Heritage Square, is in the immediate vicinity of
Riebeeck Square and consists of a block of preserved heritage buildings that have been restored and
renovated, which has resulted in a recognised city block with established heritage values.

In 2015, town planners representing the Developer held two pre-submission consultations with City
officials – one in May, the other in August – before making five applications in October of that year, in
terms of the City of Cape Town’s Municipal Planning By-Law of 2015: (i) for departures from the DMS
to allow certain portions of the building to be closer to the street boundary than is permitted by the City’s
Development Management Scheme (DMS); (ii) for consolidation of the two erven owned by the
Developer; (iii) for approval in terms of the DMS to have parking on the ground floor level for Block B to
be closer to the street than is permitted; (iv) for approval in terms of the DMS to develop a new building
in the Heritage Protection Overlay Zone (HPOZ); and (v) to have a 0m building line on the Buitengracht
Street boundary in lieu of the 5m requirement of the DMS. The applications were motivated and
supported by an Urban Design Report, a report by the appointed architects, and a Traffic Impact
Assessment. It was also stated on behalf of the Developer that the proposed development was
compliant with the City’s policy framework in relation to such proposals, in particular the Cape Town
Spatial Development Framework, the Table Bay District Plan, the Tall Building Policy, and the Urban
Design Policy.

Following internal remarks and recommendations, some of which were made subject to certain
conditions, the Developer’s application was advertised. It attracted 1017 objections, more than 600 of
which were prompted by a website created and maintained by the first appellant, the Bo-Kaap Civic and
Ratepayers Association. The second appellant, the Body Corporate of 35 on Rose, was among those
who objected to the proposed development.

On 8 March 2016 the City’s District Head: Environmental and Heritage Management Resources (EHM),
within the City’s Environmental Management Department, commented on the Developer’s applications
and noted that there were several significant heritage resources and areas that would be impacted by
the proposed development. Firstly, the EHM recorded that Riebeeck Square is a significant link between
the city and the Bo-Kaap. It went on to state that the massing of the proposed building was such that
the greater bulk and sheerness of the design imposes onto Riebeeck Square, further containing the
square’s breathing space and boxing it in, which is counterproductive to the historic nature of the space.

Secondly, in relation to the Bo-Kaap, it was noted that the area was low impact, architecturally rich and
unique, but that its relationship of proximity with town had always struggled for sustainability due to the
continued impact of new, large and bulky buildings that resulted in a lineated barrier along both edges
of Rose and Buitengracht Streets, and a vertical barrier between town and the Bo-Kaap, that removed
the historic connection which until then had existed. According to the EHM, the large visual mass of the
proposed building was seen as a physical and visual barrier which stood to erode the relationship
between the differing built environments of town and the Bo-Kaap.

Thirdly, the EHM stated that a portion of the site fell within the City’s HPOZ and thus required an analysis
as to the proposed development’s impact on the significance and character of the precinct, as HPOZ’s
are important tools for the protection, preservation and management of certain areas which have been
recognised to contain sufficient heritage value in terms of resources, significance and character to
warrant the same. The EHM recommended further investigation as to the appropriateness of the
proposed development’s contemporary design approach. Concluding on this aspect, it held that the
overall height, bulk and visual mass of the proposed development had a pronounced impact on the
existing built form and character of the immediate area, which was difficult to mitigate.

Lastly, in relation to Heritage Square, the EHM opined that the sheer size of the proposed development
was a cause for concern. While not against the addition of built form to the site, the EHM made its
suggestions to see if there was a way to limit the impact on heritage resources.

The Developer subsequently prepared a heritage statement in April 2016, wherein it stated that the
design had responded positively to urban and heritage related design indicators and that certain
mitigating measures would lessen potential negative impacts on the street and townscape in relation to
Riebeeck Square and the Bo-Kaap. It further asserted that a Heritage Impact Assessment was not
required since the proposed development did not involve any of the listed activities in terms of s 38(1)
of the NHRA.

On the 29th of April the EHM wrote to the City’s Land Use Management Division. It stated that although
the EHM is not opposed to the idea of adding built form to the site, it is not supportive of the proposed
development because of the identified heritage sources that will be negatively impacted on due to the
design’s sheer size and magnitude. It further stated that the Developer’s proposed mitigation measures
were insufficient for the impact of the proposal’s size. It recommended a reduction in height, to relate
more appropriately to the heritage resources that are impacted on, and urged that comment from HWC
be requested.

On 11 May 2016, HWC responded to the Developer’s proposed design principles to reduce the impacts
on townscape and streetscape. HWC regarded the stepped massing, or stepping effect, as inadequate
by itself to mitigate the substantial heritage impacts on the Bo-Kaap. As to the incorporation of horizontal
and vertical articulation and datum lines, HWC submitted that the HPOZ took precedence over the
underlying ‘development rights’ relating to the base zoning and its associated development rules, and
took the view that the proposed height was inappropriate as it would dominate both the Bo-Kaap and
Riebeeck Square and exacerbate the separation of the Bo-Kaap from the West City. Thirdly, in
response to the proposed height ‘counter-balancing’ the mass of the Netcare (‘City-Park’) Hospital
diagonally opposite Riebeeck Square, HWC rejected the proposition that one insensitively-scaled
building could be used as justification for the construction of another, or that counterbalancing the mass
of the hospital would successfully mitigate the negative effects of a new building, which does not
dominate Riebeeck Square, to serve as an enclosing element. HWC concluded that the proposed
development was inappropriate in its current form and that it would have a detrimental effect on the
heritage significance of both Riebeeck Square and the Bo-Kaap.

In its report to the MPT, dated 24 May 2016, the City’s Land Use Management Division noted that the
objecting parties’ main points relate to the proposed development’s height, massing and position, but
continues to state that although the heritage resources within the surrounding area are legislated, they
‘do not have a legal standing to impose on the subject property’. Calls for a reduction in the height of
the building due to its impact on the various heritage resources had not been quantified; and those due
to the impact, or to allow for a bridge between the city and the Bo-Kaap, could not override the primary
rights allowable on the property, according to the report. It concluded that, from a statutory point of view,
no mechanism or legal basis exists to circumscribe the permissible development rights of the portion of
the site outside the HPOZ.

On 7 June 2016 a hearing took place before the MPT, a tribunal comprised of technical specialists,
many of which are not employed by the City. After extensive debate, including as to the proposed
development’s scale and impact on heritage resources, the MPT approved the proposal. It did so for a
number of reasons: the proposed development’s compliance with the City’s Planning Policies; its
potential to exhibit good urban design when the relevant conditions were complied with, while taking
cognisance of the heritage resources within the area; the proposed development’s provision of an
adequate transition between the city and the Bo-Kaap at street level; the massing and height of the
proposed building being located away from the Bo-Kaap; the proposed development’s potential to
activate and improve the surrounding streetscapes; and its desirability in terms of s 99(3) of the By-law.

Twelve appeals, including those of the first and second appellants and Professor Todeschini, were
lodged against the approvals by the MPT. The first stage of the appeal process was conducted at a
meeting of the Mayoral Advisory Panel (MAP), who thereafter sent a report to the Mayor containing its
reasons for approving the applications. In addition to the reasons of the MPT, the report stated that the
proposed development also complied with the City’s Spatial Development Framework, the Integrated
Development Plan, the Economic Growth Strategy, and the Transit Orientated Development Strategy.
Furthermore, where there were errors in the notification process, extra time was allowed and agreed to
by the applicant for persons to submit comments on, or objections to, the application. The report also
stated that although only a portion of the property was affected by the HPOZ, the department had
treated the application as if the whole property was affected thereby. In addition to the application’s
desirability in terms of traffic impacts, parking access and other transport related considerations, the
MAP added that the application was desirable in that it bordered on Buitengracht which is a high order
road and is thus an ideal location for land use intensification and increased density. It was noted that,
in terms of the transit development, more residential uses had to be encouraged in the city centre in
order to address inefficiencies in the city; that the application was sensitive to the Bo-Kaap area; and
that the massing and height of the building’s façade along Rose Street responded to those of the
neighbouring buildings on each side.

The second stage of the appeal process comprised of the Mayor considering the MAP’s report, along
with all of the other information before her. The Mayor accepted the recommendation of the MA and
agreed with its report. She also stated that she took into account the relevant heritage concerns.

The appellants were aggrieved by the City and the Mayor’s decisions on a large number of grounds. In
the first instance, the appellants were aggrieved at the City’s attitude in relation to how an overlay zoning
that attached to one of the erven was to be construed and applied. The appellants submitted that the
City did not apply its mind Item 162 of the DMS, which requires the City’s approval for any development
which may in any way result in a change to the appearance or physical nature of a heritage place or
influence its stability or future wellbeing.  The appellants were, in addition, adamant that s 24 of the
Constitution, as well as the NHRA, obliged the City to have regard to the implications of the proposed
development on the heritage values of the area. In relation to Riebeeck Square, the appellants
contended that the proposed development would disturb the significant link between the city and the
Bo-Kaap due to its sheer height and mass. And, as to Heritage Square, the argument of the appellants
was that the proposed development would impact on it for obvious reasons of proximity.

The appellants also took the view that proposed mitigating measure, the cascading of the eighteen-
storey building down to a height of approximately five stories on Rose Street, was inadequate to
successfully mitigate the negative impact on heritage value. In addition, the appellants objected to the
City and the Mayor’s failure to abide by the City’s Scenic Drive Policy, contending that views would be
affected which is what this policy sought to prevent; accused the City of having failed to have regard to
its own Tall Building Policy, which requires consideration of the impact of proposed tall buildings; and
submitted that the photomontages presented by the Developer as part of it’s application were deceptive

and underplayed the visual impact of the proposed building. The appellants asserted that a visual
impact study was required, which had not been called for by the City.

Furthermore, the appellants argued that the City had ignored its own context-sensitive Densification
Policy, which requires the scale and character of high-density areas to be appropriate to the context,
due to the proposed development apparently being contextually inappropriate. It was also submitted
that the approval of the proposed development effectively cut the Bo-Kaap off from the rest of the city,
thereby further contributing to the segregated nature of Cape Town that was inherited from apartheid,
which is what the City’s Urban Design Policy was contended to prevent. Lastly, the appellants alleged
that the City had failed to enforce the special condition attaching to the Title Deed in relation to Erf
144698. Due to the absence of any application by the Developer to the City for the relaxation of this
condition, so the argument went, the City ought not to have approved the Developer’s applications.

The City opposed the relief sought by the appellants. It pointed out that the properties in question were
not located within the Bo-Kaap and, after providing a three-dimensional depiction of the building and its
surrounds, contended that the development would blend in with the surrounding area. The City and the
Mayor were at pains to point out that the properties in question lie within a band of commercial properties
between Rose and Buitengracht Streets and, further, that commercial properties had already intruded
and later come to dominate the block from the early part of the twentieth century. The argument was
that the site itself had no inherent heritage value. It was pointed out that, at the time the present litigation
was commenced, construction had already begun on a very similar development to the one under
scrutiny, only 150m away. That development is a 17-storey building, containing 117 apartments as well
as retail outlets and office space, but was never challenged by either HWC or the appellants.

Due to the uncontested deterioration of Riebeeck Square over the last few decades, the City adopted
the view that developments such as the one in question should be supported as they would breathe
new life into the square. Surrounding Riebeeck Square are offices and businesses, the old Christiaan
Barnard Hospital (Netcare) as well as Heritage Square. A positive change has been the renovation and
restoration of Heritage Square, with restaurants that are open in the evenings. The City is adamant that
introducing residential areas, such as the proposed development around Riebeeck Square, would be a
catalyst in developing a more human orientated facility, as opposed to a vehicle orientated one.

The City accepted that the approval for use of property under the DMS has to take into account various
policies and principles, as well as environmental and land use considerations, it was adamant that
designations under the DMS were only the starting point. It pointed out that base zoning conferred
various primary permitted uses for which approval was not required, and that the particular base zoning
attaching to the erven in question, so-called MU3, allowed for a range of uses including business
purposes and flats. The relevant overlay zoning, in turn, required that environmental, heritage
protection, and conservation concerns be taken into account.

According to the City, the height and scale of the proposed development is within all of the rights that
attached to properties in the MU3 zoning and the CBD Local Area Overlay Zoning (CBD LAO). What is
more, the proposed development will not utilise the full extent of conferred developmental rights. The
City furthermore indicated that the properties in question fall within an urban development zone, a tax
incentive introduced in 2003, aimed at revitalising inner city areas by attracting capital investments in
commercial and residential property through a tax rebate. The idea was apparently to bring people back
to the central city through appropriate residential and business densification, affordable housing and
mixed usage buildings. The City insisted that it applied its own density priority zone policy and that the
CBD was an urban civic upgrade area into which the proposed development fitted snugly.

As to the criticisms levelled against the approval process, the City referred to the expert knowledge and
experience of members of the MPT, the MAP as well as the Mayor’s technical advisor. It showed that

the comments and objections of interested parties were indeed taken into account, which is evidenced
by the City’s Land Use Management Department obtaining further input on the historical aspects of the
area from the EHM and the Developer seeking to address the heritage concerns by making significant
changes to the proposed design and also procuring the heritage statement referred to above.

In regard to the MPT meeting, the report indicates an extensive discussion of development rights and
heritage concerns. There was also a discussion about the application of s 99 of the By-law, which
mandates the social and economic impact of such proposals to be considered when such applications
are made. Then, in relation to the MAP meeting, the City explained that both the appellants as well as
the developer’s representatives addressed the meeting, followed by extensive discussion. And, lastly,
in respect of the Mayor’s decision, the City recorded that she had been provided with all of the
documents and materials provided to the MAP, as wel as the appeals themselves and a report prepared
by the Acting District Manager. The City and M=the Mayor maintained the view that she had carefully
considered all of the information before or, and engaged in several consultations with her technical
advisor and principal legal advisors. She even conducted an inspection of the site while accompanied
by these advisers. She was aware of the HPOZ attaching to one of the subject erven and was careful
to observe that the position of the proposed development in relation to the Bo-Kaap and to make an
assessment of its impact on nearby heritage resources. The City and the Mayor also maintained that
they had regard to heritage considerations and balanced these against the other necessary factors.
The appeals were only dismissed by the Mayor after she had done so.

The Mayor states that she considered, in particular, the view of the City’s EHM’s view that the
surrounding heritage resources will be impacted on in a negative manner by the proposed development
due to the design’s sheer size, height and magnitude, but that she agreed with the MPT and the MAP
that the proposed development responded appropriately to the neighbouring buildings and
environment. In addition, the Mayor made it very clear that her decision was not based on the
misapprehension that the City is not entitled to limit primary rights conferred by the DMS when
considering an application for development falling within a HPOZ. Rather, her belief was that it was
unnecessary to do so because the proposed development responded appropriately to the surrounding
area and because sufficient mitigating measures and conditions were put in place to address the
heritage concerns raised.

The high court found that, while both s 99 of the By-law as well as Item 162 of the DMS required the
decision-makers to take into account heritage concerns, in neither instance were such heritage
concerns to be considered pre-eminent or the sole criteria in deciding applications such as those in the
present case. In any event, the high court found that heritage enjoyed ‘a distinct degree of attention’
and reiterated the evidence of this throughout the various stages of the application. The high court thus
held that the City and the Mayor arrived at the decisions in a balanced fashion and that they did not act
unreasonably or irrationally. The City and the Mayor did not commit an error of law and they did not
ultimately hold a rigid view that base zoning rights trumped all the countervailing considerations. The
review application was accordingly dismissed with costs.

The SCA found that the nub of the appellants’ case, whether by reference specifically to s 99 of the By-
law, or to the labyrinth of policies, strategies and statutory provisions, was that heritage considerations
were ignored or downplayed and that the decisions by the City and the Mayor were therefore
unreasonable, irrational or tainted by the City’s mistaken position in relation to the base zoning rights.
The SCA held that s 99 has to be applied in distinct stages, starting with the threshold enquiry set out
in s 99(1). It stated that the base zoning is a convenient starting point when testing the proposed land
use against the municipal spatial development framework and found that in this case the kind of
development in question was allowed. The SCA then looked at the factors listed in s 99(3) for the
purposes of considering the proposed development’s desirability. The City was of the view that the
proposed development would have a positive effect on commercial life, inner-city living as well as on

regeneration and rejuvenation of the CBD. The socio-economic impact was thus positive. The City’s
experts were also all of the view that the engineering services, safety and health aspects of the
proposed development were all adequately dealt with and had no reservations here. Traffic, parking,
access and transport related considerations were also not in issue.

On the issue of whether the City and the Mayor were averse to dealing with any criticisms concerning
heritage impact, and that that they adopted a rigid approach concerning the base zoning and assumed
that it trumped or negated all other considerations, the SCA held that despite the use of somewhat
opaque language, the City’s officials, the MPT as well as the MAP in fact had regard to heritage
concerns. They had all engaged with the Developer and the objectors on that aspect and the balance
envisaged by s 99 was achieved. The SCA held that the City’s experts, including those who served on
the MPT and MAP, were undoubtedly qualified to deal with the subject matter and that it is not for the
court to second-guess these experts, save for where they have committed a reviewable irregularity.
The SCA was emphatic that this was not to imply judicial timidity, but rather to ensure that when judicial
intervention occurs it is based on principal and within the bounds of the law, including observing the
separation of powers. In the result, the SCA held that the high court could not be faulted for holding that
the City’s experts had regard to relevant considerations and were not guilty of the irregularities accused
of.

Due to the appeal before the Mayor being an appeal in the wide sense, the hearing considered the
merits of the applications for approvals afresh. It amounted to a rehearing of the merits of the matter,
with or without further evidence or information. Thus, whatever flaws there might conceivably have been
in relation to the decision of the MPT, in the event of a finding that the Mayor’s decision was untainted
by a reviewable irregularity, this would be sufficient to thwart success in the appeal. From the Mayor’s
reasons for arriving at her decision it is clear that she considered the base zoning as well as the other
aspects she was obliged to take not account, such as the heritage concerns, especially those raised by
the EHM. The Mayor had all the expert advice she required in order to reach a balanced decision in
terms of s 99. In the result, the SCA dismissed the appeal with costs, including the costs of two counsel.

__________________________