IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO: 2973/10
In the matter between:

THE CAMPS BAY RESIDENTS' AND 
RATEPAYERS' ASSOCIATION			First Applicant
HENDRIK STEVEN NEETHLING		 Second Applicant
TAKU INVESTMENTS SA (PTY) LTD		 Third Applicant
VERNON LIONEL CHORN			Fourth Applicant
and
DAVID ANTHONY HARTLEY 			First Respondent
SUSAN DENISE HARTLEY 		Second Respondent
THE CITY OF CAPE TOWN			Third Respondent

GAMBLE, J:

INTRODUCTION

[2] Often the simmering tensions between neighbours and civil society groups have spilled over into litigation, many of which have spawned a plethora of decisions of this court relating to reviews, interdicts and declarations of rights.   This is yet another such case.

[3] The First Respondent (Mr Hartley) and the Second Respondent (Mrs Hartley), to whom I shall collectively refer as "the Hartleys", jointly own Erf 530 Camps Bay, also known as 21 The Meadway (hereinafter "the property"). The property is located a block or two away from the main beach in Camps Bay and commands views of the western aspect of Table Mountain and the Twelve Apostels. Its sea view is evidently limited at ground level.

[4] Early in 2004 the Hartleys instructed an architect, Mr Thomas Geh, to prepare building plans for the proposed construction of a multi-levelled, double dwelling on the property. The building designed by Mr Geh would be in conflict with the relevant zoning scheme regulations for the City of Cape Town ("the scheme regulations") and certain restrictive title deed conditions. Accordingly, a public participation process in respect of the intended use rights of the property was required under various statutory instruments.

[5] The Second Applicant ("Mr Neethling") is the owner of the property on its northern western boundary (i.e. towards the beach). In April 2004 Mr Neethling received a statutory notice prepared by Mr Geh informing him of the proposed construction and inviting his comments thereon.

[6] Mr Neethling filed a letter of objection with the Third Respondent ("the City") on 20 April 2004. In the founding affidavit herein he says that -

"I was opposed to the proposed development as it was conveyed to me in Mr Greh's notification because I felt that it would have a deleterious effect on the amenities I enjoy from my property and that it would lead to a derogation both of my enjoyment and of the market value of my property".

[7] Mr Neethling's wife is an architect and, with her assistance, he compiled a detailed objection document comprising an architect's assessment, drawings and photographs. The principle complaints which Mr Neethling raised regarding the proposed building were overshadowing, overlooking and loss of amenities and a view in respect of his home.

[9] Evidently, the City regarded Mr Geh's April 2004 notification as defective and instructed him to send out fresh notices. Mr Neethling says he received a second notification on 14 December 2004 and thereafter lodged an objection similar to the first. A total of twenty four letters of objection were lodged in respect of the second notification, including from the CBRRA and the other neighbours to the property.

[11] For the purposes of this application it is not necessary to recite the terms of the agreement in any great detail. Suffice it to say that it covered a broad range of issues from the dimension of the proposed building to overlooking features, landscaping and hours of construction work. A number of agreed plans were annexed to the agreement and it is the applicant's case that the building was to be conducted strictly in accordance therewith.

[12] The upshot of the agreement was that the twenty one affected parties withdrew their objections to the proposed development which could then progress to the next preliminary stage.

[13] On 16 January 2007 the City granted its consent to a departure from the scheme regulations under Section 15 of LUPO and paved the way (from a land use and planning point of view) for the construction of a double dwelling  on the property. This consent incorporated various conditions to which I shall revert hereunder.
[14] The offending title deed restrictions on the property (which precluded a double dwelling) were duly removed under the Removal of Restrictions Act, 84 of 1967 and the conditions stipulated in the agreement of 12 August 2005 were incorporated in a new title deed dated 28 February 2008.

[15] The Hartleys were also required to obtain approval of the revised building plans finalised by Mr Geh, but this step was apparently regarded as no more than a formality.

[16] In about April or May 2009 Mr Neethling received a phone call from Mr Paul Righini who told him that he had been appointed as the Hartley's new architect. Mr Neethling declined Mr Righini's request for a meeting to discuss proposed changes to Mr Geh's plans and says that he referred Mr Righini to Mr Willemse because there were a number of other interested parties. It does not seem as if Mr Righini contacted Mr Willemse.

[17] On 20 August 2009 Mr Neethling noticed that demolition of the existing building on the Hartleys' property had commenced. The following day he went to the City's offices to establish whether the building plans had been approved. He says that he ascertained that building plans had been submitted by the Hartleys on 4 June 2009, that these plans had been approved on 12 August 2009 and that in his view they differed substantially from the agreed plans which were annexed to the agreement of 12 August 2005. ("the old plans")

[18] Mr Neethling says that he was of the view that the Righini plans ("the new plans") were in contravention of:
18.1. the agreement of 12 August 2005 ("the written agreement");
18.2. the amended title deed conditions endorsed pursuant to the written agreement; and
18.3. the conditions imposed by the City when it consented to the construction of a double dwelling on the property.

[19] Mr Neethling then proceeded to engage with the relevant City officials in an endeavour to persuade them that the new plans were indeed in contravention as alleged but he was unable to do so.

[20] Mr Neethling says that during this process of discussion, City officials showed him a copy of the title deeds which had allegedly been submitted together with the new plans. He then formed the view that the City's officials had been mislead regarding the appropriate title deed restrictions/conditions. I will deal in more detail later with some of the alleged contraventions as contended for by the applicants.

[21] During the period 21 August to 30 November 2009, Mr and Mrs Neethling were involved in on-going discussions with City officials regarding their concerns about the Hartleys' proposed development. They also sought legal advice. The City officials, in turn, engaged with Mr Righini.

[22] On 30 November 2009 Mr Neethling went next door and discussed the matter with the building contractor on site. The latter informed him of Mr Righini's instructions to him in 

respect of certain of the design features and parameters of the proposed dwelling. Mr Neethling requested sight of any updated plans prepared by Mr Righini subsequent to approval of the new plans but these were not forthcoming. Upon enquiry to City officials Mr Neethling established that no such plans (which he termed "rider plans") existed.

[23] On 5 December 2009 there was an informal meeting at the property between Mr Neethling, Mr Righini, Mr Willemse and MrTheron, the section head of the City's Building Development Management for the area in question. At this meeting Mr Willemse told Mr Righini in no uncertain terms that his view was that the new plans were in breach of the written agreement and the title deed conditions and asked Mr Righini to prepare a full set of plans which were in compliance with the written agreement and the title deeds.
[24] Mr Righini undertook to take instructions from the Hartleys and revert by 15 January 2010. On 12 December 2009 Mr Willemse sent a letter to Mr Righini and the Hartleys confirming the substance of the discussions and recording Mr Righini's undertaking. The Hartleys were advised that the CBRRA would resort to litigation if necessary but that the CBRRA remained available for further discussion if necessary.

[25] Mr Hartley wrote a terse reply on 17 December 2009 denying any non-compliance with the written agreement. He reserved his rights and undertook to revert by mid January 2010.

[26] Building work continued on the property until 21 December 2009 in contravention of the condition in the written agreement that it would not take place during the annual builders' shutdown and only ceased when Mr Neethling threatened to lay criminal charges.

[27] There was no response from the Hartleys as promised in mid January 2010. All the while building work continued apace.

[28] On 15 February 2010 the present urgent application was launched by the CBRRA (as first applicant). Mr Neethling (as second applicant), Taku Investments SA (Pty) Ltd, the owner of the neighbouring property immediately behind the property (as third applicant) and Mr Vernon Chorn, the owner of the neighbouring property to the south east of the property (as fourth applicant). Mr and Mrs Hartley were cited as the first and second respondents respectively with the City as the third respondent. The City filed a notice to abide the decision of the Court on 23 February 2010.

[29] When the matter first came before Court on 24 February 2010 it was postponed by agreement between the parties by Acting Justice Samela to 20 April 2010 for hearing, with an agreed timetable for the filing of further papers. The Hartleys undertook to cease all building operations pending the hearing on that date.

[30] By 22 April 2010 the Hartleys' answering affidavits had still not been filed and by further agreement between the parties the matter was postponed by the Judge President to 9 June 2010. The Hartleys' undertaking to cease building was extended accordingly.

[31] On Wednesday 9 June 2010 and thereafter, the matter was argued over a period of three days, whereafter judgment was reserved.

[33] On 14 July 2010 (at a stage when preparation of this judgment had commenced) I was informed by the applicants' attorneys that there has been certain material developments since the conclusion of the hearing and that the applicants sought leave to file a further affidavit. This application was opposed by the Hartleys and the applicants launched a formal application to re-open their case and submit a further affidavit by Mr Neethling.

[35] In the course of the filing of the latest set of affidavits the Hartleys complained that the applicants had not yet applied for an early date in the review application which they had launched on 17 February 2010 and in which the Rule 53 record had been filed by the City on 10 March 2010. The applicants replied that they had not filed a supplementary affidavit under Rule 53(4) and that the Hartleys' answering affidavit was therefore some four months overdue.   The Hartleys' response is that once the applicants have filed the record in terms of Rule 53(3) they will need thirty days to file their affidavits.

ISSUES TO BE DECIDED IN THE REVIEW
[37] The applicants argue that the City passed the approved plans:
37.1. contrary to the terms of the written agreement;
37.2. contrary to the terms of the amended title deed conditions;
37.3. contrary to conditions imposed by the City in terms of Section 42 of LUPO when it granted its consent for the erection of a double dwelling; and
37.4. contrary to the provisions of the scheme regulations.

[42] The panacea to the applicants' problems, it was said, was the submission of so-called "rider plans" to the City which would cure the contraventions. Both Mr Righini and Mr Turner, the Hartleys' town planning consultant, confidently proclaimed in their affidavits in support of their principals that they had little doubt that these plans would be passed by the City.

[44] During the course of argument, the Hartleys' counsel handed up a note dealing with various of the contraventions as alleged by the applicants. This note accepted that there were clear contraventions of the scheme regulations and that the approved plans were not in accordance therewith.
[45] In the latest exchange of affidavits the applicants say that they have been vindicated: they point out that the City has refused to approve the "rider plan". They go on to point out the position is somewhat more sinister than would appear at first blush. The applicants allege that the refusal of the rider plans was something which had already taken place some months ago, was known to at least Mr Righini at the time the matter was being argued in open Court, and was something which the Hartleys' agents withheld from the Court.

[46] Consideration of the latest set of affidavits and in particular the annexures thereto show that -
46.1. the "rider plan" was submitted to the City on 28 May 2010;
46.2. no application has been made to the City by the Hartleys for the removal or amendment of any of the conditions imposed by it under Section 42(1) of LUPO when it approved the old plans;
46.3. the Hartleys were informed telephonically by the City on Friday 11 June 2010 that they should collect a letter from the City (which had been prepared the previous day) in which they were informed of the City's refusal to pass the "rider plan".
46.4. The conditions imposed under Section 42 of LUPO are those set out in the written agreement.
[47] In its letter to the Hartleys of 10 June 2010 the City says the following:
"[The "rider plan"] cannot be considered at this stage. The Land Use Management Branch has cancelled the clearance originally granted. The amendments indicated on the aforementioned plan is (sic) must be read in conjunction with building plan 0847/2009 [i.e. the approved plans]. The aforementioned plan contains deviations in contravention of the conditions of approval associated with a land use application (for the removal of Restriction, Consent and Departures) approved in December 2006. Building plan 0847/2009 was approved erroneously by the City of Cape Town as it deviated from the permissible developable (sic) envelope as per the 2006 approval. The building plan now under consideration [i.e. the "rider plan"], perpetuates the aforementioned deviations in the absence of a further land use application to amend conditions of approval.

[48] This development was not brought to the attention of the Court by the Hartleys on Friday 11 June 2010 (the last day of the hearing) or thereafter. Furthermore, the Hartleys initially resisted it being placed before the Court by way of the application to re-open.

[50] In an affidavit deposed to in London on 17 August 2010, Mr Hartley bemoans the fact that the City has rejected the "rider plan", points out that this seems to be for inexplicable reasons and notes that he and his wife have lodged an appeal under Section 62 of the Local Government: Municipal System Act, 32 of 2000.

[51] I have little doubt that, given the history of this matter, the latest developments will spawn further litigation. Be that as it may, it is clear that the Hartleys' prospects of completing their summer home soon have been dealt a serious blow.

52.1. a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted.
52.3. the balance of convenience being in favour of the granting of interim relief; and
52.4. the absence of any other satisfactory remedy.

[54] In this Division, the approach to building interdicts pending review proceedings has been laid down in a series of decisions over more than a decade . That approach is as follows:

54.2	The stronger the prospects of success in the review the lesser prejudice occasioned by the suspension of building operations, i.e. the principle of legality operates decisively in the context.
54.3	It is preferable that building work should be stopped sooner rather later if the application is likely to succeed in the review.
54.4	

[56] In light of my findings on the strength of the review right, it is not strictly necessary to go into any detail on the contractual point. Certainly, it would not be necessary nor preferable to consider the question of final relief at this stage since this saga has many instalments yet to follow. Without wanting to influence the Court ultimately seized with this matter in any way, I would merely wish to say that the applicants have advanced a persuasive argument for the enforcement of their contractual right to demand that the Hartleys adhere to the "spacial parameters" contemplated in the Geh plans and agreed upon in the written agreement. Precisely what the nature and extent of those parameters are is a matter for decision by another Court.

[60] Finally, I believe that it is indisputable that there is no reasonable alternative remedy available to the applicants at this stage.

ORDER

[61] In the result I make the following order:

H. The parties are at liberty to approach this Court for any adjustment that they may wish to request in respect of the time