THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 1251/2017
In the matter between:

ALLEN TARGHI TAVAKOLI
FIRST APPELLANT
DLX PROPERTY (PTY) LTD
SECOND APPELLANT

and

BANTRY HILLS (PTY) LTD
RESPONDENT

Neutral citation:
Tavakoli v Bantry Hills (1251/2018) [2018] ZASCA 159 (28
November 2018)

Coram:           Lewis, Zondi and Dambuza JJA and Mokgohloa and Rogers AJJA

Heard:

14 November 2018

Delivered:
28 November 2018

Summary:
Town planning – item 40(c) of Development Management Scheme
constituting Schedule 3 to the City of Cape Town’s Municipal Planning By-law of
2015 – whether appellants had standing to complain of non-compliance –
appellants failing to establish membership of class for whose benefit item 40(c)
enacted – appellants also failing to establish harm caused by non-compliance –
court a quo correctly found appellants lacked locus standi – appeal dismissed.

___________________________________________________________

ORDER
_____________________________________________________________________

On appeal from: The High Court of South Africa, Western Cape Division
(Saldanha J sitting as court of first instance).

The appeal is dismissed with costs, including the costs of two counsel.

JUDGMENT
_____________________________________________________________________

Rogers AJA (Lewis, Zondi and Dambuza JJA and Mokgohloa AJA
concurring)
[1] The appellants applied in the Western Cape Division of the High Court of
South Africa for an order reviewing and setting aside the City of Cape Town’s
approval of building plans submitted by the respondent for the construction of a
luxury block of flats on property it owns in Sea Point (the Bantry Hills property).
The City was cited as a respondent but abided the court’s decision.
[2] Three issues were argued in the court a quo, namely (i) whether the
appellants had locus standi; (ii) if so, whether the approval of the plans was
unlawful because they contravened item 40(c) of the Development Management
Scheme (DMS) constituting Schedule 3 to the City’s Municipal Planning By-law
of 2015 (By-Law); (iii) if so, whether the court should in the exercise of its
discretion refrain from setting aside the approval. The court a quo found against
the appellants on the first two points and said that it would have found for the
respondent on the third as well provided certain remedial action was effected
within a specified time.
[3] The appellants applied for leave to appeal. The court a quo found that they
did not have reasonable prospects of success on locus standi and refused leave to

appeal on that ground.  The court a quo nevertheless granted them leave to appeal
against its interpretation of item 40(c). The court a quo erred in so doing. An
appeal lies against the order, not the reasons, of a court. Unless the appellants
could overcome the attack on their locus standi the dismissal of their application
could not be reversed on appeal. This court removed the conundrum by granting
the appellants leave to appeal on locus standi. The same three issues as were
before the court a quo are thus before us.
[4] The review application, incorporating a request for interim relief, was
launched in October 2016. The application for interim relief was heard by Gamble
J who gave judgment on 3 November 2016 (Tavakoli & another v Bantry Hills
(Pty) Ltd & another [2016] ZAWCHC 157). In terms of his order the review was
set down for hearing on an expedited date in February 2017 with a timetable for
the filing of further papers. Undertakings given by the respondent were made an
order. These were that until judgment was granted on the review building work
would not progress beyond the ground floor slab in respect of four of the blocks
and beyond the first level slab in respect of the fifth block.
[5] The review was duly heard in February 2017. The court a quo gave
judgment on 21 April 2017, dismissing the review. The interim interdict having
fallen away, building resumed. The development comprises 66 apartments spread
over five residential blocks extending above ground level to seven floors in
respect of one block, eight floors in respect of three blocks and four floors in
respect of a fifth block. According to an affidavit dated 27 July 2018, the external
structures as at that date were complete while internal work was far advanced.
Full completion was anticipated by 13 August 2018. Of the 63 apartments 53 had
already been sold.

[6] The Bantry Hills property is about 7500 m² in extent. It lies between
Regent Road to the north, Kloof Road to the south and Kings Road to the west.
(The sea lies downhill to the north, Signal Hill uphill to the south, the city centre
to the east and Camps Bay/Clifton to the west.) The plans provide for two
vehicular driveways onto the property. Vehicles approaching the property from
Regent Road will turn up Tramway Road, a one-way street which runs
southwards to the boundary of the property before making a right turn and exiting
onto Kings Road. The first vehicular access will be straight ahead off Tramway
Road at the corner where it turns right towards Kings Road. Vehicles approaching
the property from Kloof Road will turn down Kings Road, a one-way street
running northwards, then right into Ilford Road, a one-way street which runs
eastwards before making a right turn and exiting onto Kloof Road. The second
driveway onto the Bantry Hills property will be on one’s left at the corner where
Ilford Road turns up to Kloof Road.
[7] The appellants own three residential properties adjacent to each other on
the upper (south) side of Kloof Road in the suburb of Fresnaye. Immediately
opposite their properties to the north is the block bounded by Kloof Road, Kings
Road and Ilford Road. The Bantry Hills property lies immediately beyond this
block. The appellants’ properties are about 80 metres from the Bantry Hills
property. The Bantry Hills property and the appellants’ properties have General
Residential (GR) zonings. The Bantry Hills property is zoned GR4, the applicable
height limit and bulk factor being 24 metres and 1.5. The appellants’ properties
are zoned GR2, the applicable height limit and bulk factor being 15 metres and 1.
[8] Item 40 of the DMS applies to all properties zoned GR2 to GR6. It reads:
‘40. The following use restrictions apply to property in these subzonings:
(a) Primary uses subject to paragraph (c) are dwelling house, second dwelling, group
housing, boarding house, guest house, flats, private road and open space.

(b) Consent uses subject to paragraph (c) are utility service, place of instruction, place of
worship, institution, hospital, place of assembly, home occupation, shops, hotel, conference
facility and rooftop base telecommunication station.
(c) Notwithstanding the primary and consent uses specified in paragraphs (a) and (b), if the
only vehicle access to the property is from an adjacent road reserve that is less than 9 m
wide, no building is permitted other than a dwelling house or second dwelling.’
[9] The parts of Tramway Road and Ilford Road adjacent to the Bantry Hills
property have road reserves which are less than 9 metres wide. The issue on the
merits of the review application is the proper interpretation of item 40(c). The
appellants contend that it applies unless there is at least one vehicular access to the
property from an adjacent road reserve that is 9 metres or more wide. The
respondent contends that the item applies where there is only one vehicular access
to the property and such access is from an adjacent reserve that is less than 9
metres wide.
[10] For the reasons which follow, the court a quo was right to find that the
appellants lacked locus standi. It is thus unnecessary to pronounce on the proper
interpretation of item 40(c). It is, however, necessary to say something of its
purpose. The lawmaker’s concern was, I consider, the congestion that might be
caused by frequent ingress from and egress onto narrow roads. High-density
properties such as blocks of flats are accompanied by frequent vehicular ingress
and egress. The lawmaker may also have been concerned with congestion caused
by the parking of visitors’ cars on narrow roads though, in view of the detailed
provisions contained in Chapter 15 of the DMS for the provision of adequate off-
street parking, this is unlikely to have been a primary concern. At any rate, traffic
congestion, howsoever arising, must have been the mischief at which item 40(c) is
directed.

[11] The appellants did not contend, either in the court a quo or in this court,
that they had locus standi merely because the Bantry Hills property and their
properties form part of the City’s municipal area and are thus both subject to the
DMS. In JDJ Properties CC & another v Umngeni Local Municipality and
another [2012] ZASCA 186; 2013 (2) SA 395 (SCA) the question arose whether
the owner and tenant of a commercial property in Howick, a town governed by a
town planning scheme, had standing to seek the review and setting aside of the
approval of building plans relating to a neighbouring commercial property. The
majority of this court (per Plasket AJA, Lewis and Pillay JJA concurring) held
that the owner and tenant indeed had standing.
[12] Plasket AJA stated that the question of standing involves ‘a consideration
of the facts, the statutory scheme involved . . . and its purpose’. The issue had to
be determined ‘in the light of the factual and legal context’ (para 27). In regard to
town planning schemes and their purpose, Plasket AJA began his discussion with
reference to the statement by Ogilvie-Thompson JA in Administrator, Transvaal
& The Firs Investments (Pty) Ltd v Johannesburg City Council 1971 (1) SA 56
(A) at 70D that it was of the essence of a town planning scheme that it is
‘conceived in the general interests of the community to which it applies’. He then
quoted a passage from the judgment of Grosskopf J in BEF (Pty) Ltd v Cape
Town Municipality & others 1983 (2) SA 387 (C) at 401B-E to the effect that a
town planning scheme is intended to operate not in the general public interest ‘but
in the interest of the inhabitants of the area covered by the scheme, or at any rate
those inhabitants who would be affected by a particular provision’. Grosskopf J
added that a provision might ‘affect’ an inhabitant without causing him financial
loss – there might be some negative effect of a subjective nature bearing on the
amenities or character of the area.

[13] Plasket AJA observed that Grosskopf J’s remarks in BEF were a specific
application of the broader principle enunciated in Patz v Greene and Co 1907 TS
427 and summarised in Roodepoort-Maraisburg Town Council v Eastern
Properties (Pty) Ltd 1933 AD 87 at 96, viz that where the lawmaker has
prohibited the doing of an act in the interest of a person or class of persons, such
person may enforce the prohibition ‘without proof of special damage’. The
corollary is that if the prohibition has been enacted in the public interest generally,
a litigant must prove that the violation of the prohibition has caused him damage.
As Grosskopf J said in BEF, a township restriction may be imposed for the benefit
of a specific class and also for the benefit of the public in general (400H). In such
a case the standing of persons in the specific class does not depend on proof of
damage whereas the standing of other persons does.

[14] In BEF Grosskopf JA refrained from the ‘dogmatic’ assertion that in the
case of a town planning scheme a remedy would be available to all persons living
in an area as large as the one covered by the Cape Town scheme. It was
unnecessary to do so because the objecting party was an immediate neighbour.
The issue did, however, arise for decision in Prinsloo & Viljoen Eiendomme
(Edms) Bpk v Morfou 1993 (1) SA 668 (T), a full court appeal. With reference to
BEF, Eloff JP said that whether an owner in a scheme covering a large area could
enforce a prohibition depended on the circumstances and the nature of the
condition or restriction (672A):
‘There may be circumstances in which the particular town planning scheme covers a large area
with a variety of uses and restrictions and that it is inconceivable that an owner in, say, the
southern part of the area may enforce a condition of a parochial nature applicable to the
northern part of the scheme.’
Eloff JP held that the applicant had failed to establish that the prohibition he
sought to enforce was enacted in the interests of property such as the one the
applicant owned. Since he based his standing solely on the fact that his property

was situated in an area to which the town planning scheme applied his application
should have been dismissed.

[15] In JDJ Properties Plasket AJA discussed Prinsloo & Viljoen Eiendomme
without disapproval. Regarding the identification of persons in whose interests a
particular town planning provision operates, he summarised Eloff JP’s analysis of
the authorities as follows (para 33):
‘In all of the cases in which a property owner was held to have standing, Eloff JP stated, the
“nature of the conditions and the circumstances of the case” showed that the scheme had been
enacted in the interest of the applicants concerned: in all of these cases the applicants whose
standing was recognised were persons who owned land in the vicinity of the respondent’s land
and in each case their properties fell within the same use zone as the respondent’s.’

[16] This summary led Plasket AJA to the following conclusion on the facts of
the JDJ Properties case (para 34):
‘In this matter, the nature of the interest involved is the right to enforcement of the Howick
scheme. It is this interest that gives the appellants standing. They are part of the class of persons
in whose interests the Howick scheme operates for three interlocking reasons: first, they are an
owner and a lessee respectively of property within the area covered by the Howick scheme in a
modestly sized town; secondly, their properties and businesses are within the same use zone as
the development to which the building plans relate; and thirdly, their properties and business are
in such close proximity to the second respondent’s development, being across a road, that no
question of them being too far removed from the second respondent’s development can arise.
These factors distinguish their circumstances from those of the respondent in the Prinsloo &
Viljoen Eiendomme case and placed him squarely within the principle set out in the BEF case.’
[17] The above passage should not be understood as laying down immutable
requirements applicable to every case. The passage must be viewed in the context
of the circumstances of that case, including the provisions of the scheme the
appellants were seeking to enforce. The fact that an aggrieved person owns or
occupies property covered by a scheme may be a prerequisite for enforcing it but

is not on its own sufficient. Depending on the nature of the provision at issue, I
can readily imagine that an owner or occupier may have standing to enforce a
provision even though his or her property has a different zoning from the
offending property – for example, the owner of a residential property might, in
appropriate circumstances, be entitled to complain of a departure from restrictions
applicable to a nearby commercial property. Proximity will often be an important
consideration though this will depend on the nature of the provision at issue. One
cannot say, as I think the appellants sought to argue in the present case, that a
proximity of 80 metres is always close enough.
[18] The DMS is an integral part of the By-Law and has the force of law
(s 26(3) of the By-Law). The By-Law, including the DMS, applies to all land
within the geographic area of the City and binds all owners and users of such land
(s 2 of the By-Law). Given the City’s very large geographic area, the owners and
users, viewed in their totality, should in my opinion be regarded as the general
public rather than a specific class for purposes of applying the principle laid down
in Patz v Greene. If item 40(c) was imposed solely for the benefit of the general
public in this sense, the appellants – in order to have locus standi – needed to
establish that they suffered harm from a contravention of the item beyond that
which it may be supposed all owners and users in Cape Town suffered. If, on the
other hand, item 40(c) was imposed for the benefit of a specific class of owners
and users, or partly for the benefit of such a class and partly for the benefit of the
general public, the appellants could establish standing by showing that they
belonged to the specific class.
[19] The starting point is thus to ascertain whether item 40(c) was enacted for
the benefit of a specific class to which the appellants belong. It is not sufficient, in
this regard, that the item in fact operates to the advantage of a class of persons to
which the appellants belong. It must appear that the lawmaker had the interests of

the particular class in mind in enacting the provision (Kuter v South African
Pharmacy Board & others 1953 (2) SA 307 (T) at 310H-311A). I have explained
that the mischief with which the prohibition is concerned is traffic congestion in
narrow roads giving vehicular access to high-density properties. The implicated
congestion does not extend beyond the narrow road or roads actually giving
vehicular access (for purposes of discussion I shall assume in the appellants’
favour that the item applies even where more than one narrow road gives access to
the property). If at least one road giving access to the property has a road reserve
which is 9 metres wide or more, it does not matter that other roads forming part of
the immediate road network are narrow and may become congested. The
additional traffic which may be attracted to the vicinity of of a new block of flats
is unaffected by whether the abutting road giving access to the flats is more or less
than 9 m wide. It is only the properties on the abutting road itself which may be
prejudicially affected by the fact that the road is narrow and may become
congested
[20] It seems to me, therefore, that the class which the lawmaker had in mind
when enacting item 40(c) comprises the owners and users of properties in the
narrow road or roads giving access to the subject property. The appellants are not
such persons.
[21] It might be argued that the prohibition was also enacted for the benefit of
owners and users who are likely to use the narrow roads and thus be ‘affected’ by
congestion (‘affected’ in the sense contemplated by Grosskopf JA in BEF). On
this assumption, one would have to have regard to the proximity of the relevant
properties and the particular features of the road network in the vicinity to
determine whether an owner or user has standing on this basis. Any member of
the public might notionally use one of the narrow roads but this notional

possibility cannot mean that every member of the public has the right, without
proof of damage, to complain of a violation of the item.
[22] The appellants do not form part of the class of persons likely to be affected
by congestion in Tramway Road or Ilford Road. Persons owning or residing on
properties on the upper (south) side of Kloof Road would have no occasion to use
Tramway and Ilford Roads as access routes to other destinations. A resident of
Kloof Road would use Kloof Road itself to reach the city centre to the east or
Camps Bay/Clifton to the west, and would use Kings Road to reach Regent Road
and the beachfront area. Such a resident would have no occasion to turn down off
Kloof Road into Kings Road and then turn right into Ilford Road, since this would
simply take him or her back to Kloof Road. And such a resident wishing to reach
his or her home from Regent Road would not turn up Tramway Road because this
would take him on to Kings Road which is a one-way street running back down to
Regent Road.
[23] The appellants’ counsel, while acknowledging that traffic congestion in
narrow abutting roads was the primary mischief at which item 40(c) is directed,
submitted that an additional purpose may have been to maintain the low-density
residential character usually associated with narrow roads. The appellants’
properties were sufficiently proximate to the Bantry Hills property to benefit from
the preservation of this character.
[24] I cannot agree that this was a purpose of item 40(c). The character of areas
within a zoning scheme is established by the zoning applicable to the properties in
that area. In regard to residential areas, the lowest-density zonings in the DMS are
Single Residential Zones 1 and 2. The GR Zones make provision for urban living
at higher densities, including blocks of flats, so as to promote efficient urban
development and manage urban sprawl (see the introductory notes to Chapter 6).

The permitted density increases from GR1 to GR 6. The Bantry Hills property
falls in an area characterised by GR4 zoning, ie relatively high-density residential
development. Item 40(c) would be a very arbitrary and unsatisfactory way of
preserving the character of an area. A GR4 property might be abutted by two
narrow roads but if the vehicular access were provided from a third road which
was at least 9 m wide the restriction would not be applicable. This shows that the
restriction is concerned not with narrow roads as such but with the traffic
associated with narrow roads giving vehicular access to high-density properties.
[25] I thus conclude that the appellants do not have locus standi by virtue of
membership of a specific class for whose benefit item 40(c) was enacted. I am
prepared to assume that item 40(c) was enacted not only for the benefit of a
specific class but also for the benefit of the general public, ie all owners and users
of property within the geographic area of Cape Town. On that assumption,
however, the appellants needed to prove that the violation has caused or will cause
them damage.
[26] The appellants were required to establish their locus standi in their
founding papers. The only founding allegations concerning standing are in para
21, where their deponent, Mr Tavakoli, said that they had standing because they
were entitled to enforce the DMS against the respondent and because their
constitutional rights to just administrative action had been infringed by the
approval of the plans. The first of these grounds is a conclusion unsupported by
facts. The second, as the JDJ Properties case shows, does not relieve the
appellants of the burden of establishing their standing along conventional lines.
With reference to s 38 of the Constitution, the appellants have not alleged that
they are acting in anyone’s interests other than their own. The sufficiency of their
own interest must be determined in accordance with the principle emanating from
Patz v Greene. As Cameron JA stated in Giant Concerts CC v Rinaldo

Investments (Pty) Ltd & others [2012] ZASCA 28; 2013 (3) BCLR 251 (CC), an
‘own-interest litigant’ does not acquire standing from the invalidity of the
challenged decision but from the effect it will have on his or her interests (para
33).
[27] In the answering affidavit the respondent’s deponent denied the
appellants’ locus standi. In reply the appellants’ deponent, Mr Tavakoli, ‘noted’
this denial. There was no advance, insofar as locus standi is concerned, when the
appellants delivered their supplementary founding affidavit following the
furnishing of the City’s record.
[28] In the supplementary answering affidavit the respondent’s deponent, Mr
Rossi, pointed out that the appellants continued to advance their case ‘without any
allegation relating to what special or peculiar interest he may have in the
legislative provision’. Mr Rossi explained at some length why, in the respondent’s
view, non-compliance with item 40(c) would not have any negative effect on the
appellants and their properties. He pointed out that the appellants had made no
allegations concerning the impact which the development might have on traffic in
the area ‘and accordingly the applicants are not and would not be entitled to assert
any argument in this regard at the hearing of the matter’. Mr Rossi nevertheless
annexed two traffic impact assessment reports demonstrating that the
development would have an insignificant impact on traffic. In his supplementary
replying affidavit Mr Tavakoli again ‘noted’ Mr Rossi’s allegations, saying that
they were matters for legal argument. He said that it was difficult to understand
why Mr Rossi had annexed the traffic impact assessment reports.
[29] In written argument the appellants’ counsel referred us to a letter annexed
to the founding affidavit in which their attorneys, in requesting access to the
building plans, stated that the appellants had an interest in the proposed

development inter alia because it would ‘dramatically increase the traffic
congestion in the area’ and potentially decrease the value of their properties.
Reliance in this way on an annexure is not permissible (Minister of Land Affairs
and Agriculture & others v D & F Wevell Trust & others 2008 (2) SA 184 (SCA)
para 43), all the more so where the appellants in their affidavits chose to treat the
question of traffic congestion as irrelevant. I simply add that the annexed impact
reports are at odds with a suggestion of a significant increase in traffic. Upon
completion of the development the volume-to-capacity ratios of all relevant
intersections will remain low and the levels of service good.
[30] The appellants thus failed to demonstrate that the violation of item 40(c)
has caused or will cause them harm. Their true concern seems to have been that
the new development would impair their view but in their supplementary replying
papers they disavowed this concern as a basis for locus standi. In conclusion I
should emphasise that my conclusion on locus standi is made in relation to a
restriction which is, to adapt Eloff JP’s expression, highly parochial. Many of the
DMS’ other provisions may have a far wider reach.
[31] The following order is made:
The appeal is dismissed with costs, including the costs of two counsel.

__________________
O L Rogers
Acting Judge of Appeal

APPEARANCES

For Appellants
A M Smalberger SC

Instructed by

K J Bredenkamp Attorneys, Cape Town

Hill McHardy & Herbst, Bloemfontein

For Respondent
S P Rosenberg SC (with him R D E Gordon)

Instructed by

Edward Nathan Sonnenbergs, Cape Town

Webbers, Bloemfontein