City of Cape Town v Michels and Others (22715/2023) [2025] ZAWCHC 75 (28 March 2025)

(1) The Act

61. Section 4(1) of the Act provides as follows:

“No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act.”

62. Section 4(4) of the Act makes a contravention of section 4(1) a criminal offence:

“Any person erecting any building in contravention of the provisions of subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding R100 for each day on which he was engaged in so erecting such building.”

63. Section 17 of the Act provides that the Minister may make regulations, to be known as National Building Regulations, regarding, inter alia, the preparation, submission and approval of plans.

64. Regulation A25(1) of the Building Regulations provides as follows:

“No person shall use any building or cause or permit any building to be used for a purpose other than the purpose shown on the approved plans of such building, or for a purpose which causes a change in the class of occupancy as contemplated in these Regulations, whether such plans were approved in terms of the Act or in terms of any law in force at any time before the date of commencement of the Act, unless such building is suitable, having regard to the requirements of these Regulations, for such first-mentioned purpose or for such changed class of occupancy.”

[emphasis added]

65. Regulation A25 also provides for the service of various non-compliance notices, including notices to cease any contravention of the Act, notices to rectify any contraventions of the Act, including by demolition, and notices calling upon an owner to obtain the necessary approvals in order to render building works compliant.

66. Section 7(1)(a) of the Act, provides as follows:

“If a local authority, having considered a recommendation referred to in section 6(1)(a)—

(a) is satisfied that the application in question complies with the requirements of this Act and any other applicable law, it shall grant its approval in respect thereof;”

67. Section 7(1)(a) requires the City, when considering building plans, only to approve them if it is satisfied that the application in question complies with the requirements not only of the Act, but also any other applicable law, in which event it must approve them.

68. The provisions of the By-Law and the DMS fall within the term “any other applicable law” in s 7(1)(a): compare the similar situation in the case of another municipality and its Integrated Development Plan: eThekwini Municipality v Tsogo Sun KwaZulu-Natal (Pty) Ltd 2007 (6) SA 272 (SCA) at paragraph 25. Thus absent compliance with the By-Law or obtaining the necessary approvals thereunder, building plan applications cannot be approved by the City.

(2) The By-Law and the DMS

69. The By-Law was enacted to regulate and control municipal planning matters within the geographical area of the City. The preamble thereof provides in part as follows:

“WHEREAS section 2(2) of the Spatial Planning and Land Use Management Act (Act 16 of 2013) permits other legislation to prescribe an alternative or parallel mechanism, measure, institution or system on spatial planning, land use, land use management and land development in a manner consistent with the provisions of that Act, and the City intends through this By-Law to prescribe such a mechanism, measure, institution and system;

WHEREAS the City intends to regulate and control municipal planning matters within the geographical area of the City.”

70. In terms of section 2 of the Western Cape Land Use Planning Act 3 of 2014 (“LUPA”), the City has the responsibility to enforce the By-Law, inclusive of the DMS, which has force of law in terms of section 26(3) of the By-Law. Section 2 provides as follows:

“(1) This By-Law applies to all land within the geographical area of the City, including land owned by the state.

(2) This By-Law binds every owner and every user of land, including the state.”

71. Section 35 of the By-Law deals with ‘use rights’, and provides that:

“(2) No person may use or develop land unless the use or development is permitted in terms of the zoning scheme or an approval is granted or deemed to have been granted in terms of this ByLaw.

(3) No person may contravene or fail to comply with a condition of approval imposed or deemed to have been imposed in terms of this By-Law.”

72. Section 42 of the By-Law provides for a list of 22 different types of applications ((a) to (v)) that a person may make in terms of the By-Law. This includes item (h) which provides for an application for a “… consent, approval or any other permission or requirement in terms of the development management scheme.”

73. In terms of section 124 of the By-Law the City has a wide ambit of enforcement measures which it can take in different combinations and sequence:

“124. Choice of enforcement measure

The City may take any one or more of the enforcement measures contemplated in this Chapter, and may take them in any order or combination or with one as an alternative to another in the event of a failure to comply, or sequentially.”

74. Section 125 of the By-Law deals with complaints by affected persons in respect of alleged contraventions of the By-Law. Section 125(2) provides that the City must investigate complaints received in terms of section 125(1):

“125 Complaint

(1) A person, who is affected by an alleged contravention of this By-Law, may in writing and using the prescribed form or in a manner determined by a policy, request the City Manager to investigate the alleged contravention and to act in terms of this Chapter.

(2) The City must investigate the complaint within the time and in accordance with the procedure set out in guidelines adopted by the Department.

(3) The City must inform the complainant of the outcome of the investigation within 30 days of the investigation being completed and the steps to be taken in the event that the City is of the opinion that this By-Law is being contravened.”

75. Section 129 and 130 of the By-Law deal with administrative penalties and corrections of contraventions. Section 129 provides in relevant part that:

“129. Administrative penalty

(1) A person who is in contravention of this By-Law, and who wishes to rectify the contravention in terms of section 130, may apply to the City for the determination of an administrative penalty if the City has not issued a demolition directive (in terms of subsection 128) in respect of the land or building or part thereof concerned.

(1A) The Municipal Planning Tribunal may, where any person has contravened this By-law, –

(a) decide to impose an administrative penalty; and

(b) determine the amount of the penalty.

(2) A person making an application contemplated in subsection (1) must –

(a) submit an application;

(b) pay the prescribed fee;

(c) provide the information contemplated in subsections (7) and (8); and

(d) comply with the duties of an applicant in section 78.”

76. Section 78 of the By-law provides inter alia that all information supplied to the City by an applicant must be accurate:

“78 Duties of an applicant

(1) An applicant must ensure that –

(a) no misrepresentation is made to the City;

(b) the City is not misled;

(c) all information furnished to the City is accurate; and

(d) the application does not omit any relevant information.

(2) A person who contravenes subsections (1)(a) or (1)(b) is guilty an offence and upon conviction is liable to the penalties contemplated in sections 133(2) and 133(3).

77. Section 130 of the By-law provides:

“130 Rectification of contravention

(3) A person who is in contravention of this By-Law may apply to the City in terms of this By-Law for the necessary approval.

(4) Subject to subsection (3), a person contemplated in subsection (1) must submit an application for and pay an administrative penalty determined in terms of section 129 before the City may consider an application contemplated in subsection (1). [emphasis added]

(5) If an application for an administrative penalty contemplated in section 129 has been submitted but not yet determined, or an administrative penalty determined in terms of section 129 has not yet been paid, in exceptional circumstances the City may consider an application contemplated in subsection (1) provided that the City, when granting an approval or making a determination, must impose appropriate conditions to ensure payment of any administrative penalty.”

78. The structure of the By-Law is therefore as follows in the case of irregularities/non-compliances:

78.1. Section 130(1) allows for a person in contravention of the By-Law to apply to the City in terms of the By-Law for the necessary approval (section 42 lists most of the items for which approval may be sought).

78.2. Prior to applying for irregularities/non-compliances to be rectified, an applicant must submit an administrative penalty application in terms of section 129.

78.3. In terms of section 130(2), a person in contravention of the By-Law must submit the administrative penalty application and pay the penalty before the City may consider an application in terms of section 130(1).

79. The crucial aspect of section 130 for the purpose of this application is that the granting of an administrative penalty application is not a corrective measure for contraventions of the By-Law. It is the first required step before an application for the rectification of a contravention can be made. For reasons which will become apparent later, fundamental to this matter is that the granting of an administrative penalty application does not cure anything which is in contravention of the By-Law. That must come later. This informs the relief sought in the notice of motion in the main application and the order granted below.

80. Section 131 of the By-Law deals with “Enforcement litigation” and provides that:

“131 Enforcement litigation

Notwithstanding that this Chapter may give the City an alternative remedy, the City may apply to the High Court for appropriate relief, including orders compelling the owner or other person to –

(a) demolish, remove or alter any building, structure or work erected in contravention of this By-Law, and rehabilitate the land concerned; and

(b) cease or modify conduct in contravention of this By-Law, to comply with this By-Law, or to address another impact of the contravention.”

(3) The applicable zoning in terms of the DMS

81. As mentioned, the Properties are zoned single residential zoning 1: conventional housing (SR1) in terms of the DMS.

82. SR1 is described as follows in the DMS:

“Part 1 - Single Residential Zoning 1: Conventional housing (SR1)

The SR1 zoning provides for predominantly single-family dwelling houses and additional use rights in low- to medium-density residential neighbourhoods, whether these incorporate small or large erven. Limited employment and additional accommodation opportunities are possible as primary or consent uses, provided that the impacts of such uses do not adversely affect the surrounding residential environment.”

83. The following use restrictions apply to properties in this SR1 zoning:

“21 Use of the property

The following use restrictions apply to properties in this zoning:

(a) Primary uses are dwelling house, private road and additional use rights as specified in paragraph (b).

(b) Additional use rights which may be exercised by the occupant of a property are home occupation, bed and breakfast establishment, second dwelling, third dwelling and home child care, subject to the following conditions:

(i) Except for a second dwelling, only one of the activities listed as additional use rights shall be conducted on any land unit as a primary use. Where more than one such activity is required, the City’s approval shall be obtained;

(ii) The dominant use of the property shall be a dwelling house for accommodation of a single family;

(iii) The proprietor of the activity concerned shall live on the property;

(iv) The conditions stipulated in items 23, 24, 25, 25A or 25B (whichever is applicable) shall be adhered to;

(v) Any new structure or alteration to the property to accommodate an additional use right shall be compatible with the residential character of the area, particularly with regard to the streetscape, and shall be capable of reverting to use as part of the dwelling house, second dwelling, third dwelling or outbuilding concerned; and

(vi) No more than three employees shall be engaged by the occupant in the activity concerned.

(c) Consent uses are utility service, place of instruction, place of worship, house shop, institution, guest house, rooftop base telecommunication station, wind turbine infrastructure, open space, urban agriculture, veterinary practice and halfway house.”

84. The following relevant to this matter emerges from the above:

84.1. The SR1 zoning permits a second and a third dwelling as primary uses, subject to certain conditions, but does not permit any further additional dwellings on a property.

84.2. Although the SR1 zone permits a bed and breakfast establishment, that requires the occupant of the dwelling to supply lodging and meals for compensation to transient guests who have permanent residence elsewhere.

84.3. Only one domestic staff quarter per land unit is permitted, unless additional quarters are allowed by the City.

84.4. The operation of a boarding house (and also a backpacker’s lodge) is not permitted in SR1 zoning.

Erf 840: The Erica Property

94. The City’s inspections revealed that a structure, built with what is called ‘Nutec’, had been erected directly over the swimming pool on the property. The swimming pool had been emptied of water, but had not been filled, and the Nutec structure, which had been elevated above the ground by the use of bricks along the outside edge of the structure only, was entirely unsupported in the middle. It was also internally divided into four separate living units.

95. Despite issuing compliance and/or cease works notices, and despite assurances (as far back as February 2022) from the first respondent that he would submit plans to regularise the unlawful building works, and despite several deficient and at times contradictory submissions by the first respondent, it remains that this structure is on the Erica Property without any approved building plans and without the safety concerns of its location having been addressed.

96. The existing garage was converted into a residential unit which extended right up against the boundary wall of the Erica Property which is a contravention of the building line.

97. Several rooms on the ground floor of the main dwelling were divided and/or converted into bedrooms: these were the sunroom, dining room and living room, bringing the total number of bedrooms in the main dwelling unit to ten (inclusive of the converted garage).

98. During February 2024, the first respondent submitted an application for an administrative penalty in respect of the Erica Property.

99. The application describes another contravention as follows: ‘THE SECOND DWELLING ENCROACHES THE 3m COMMON BOUNDARY BUILDING LINE’. The motivation accompanying the application indicates the extent of the contravention as 22 m².

100. No further contraventions are disclosed by the first respondent or his agent. This is in breach of section 78 of the By-Law, quoted above.

101. Consideration of the building plan attached to the application indicates that the contravention disclosed by the first respondent relates to the Nutec structure only, which is labelled as a proposed second dwelling. This is in breach of section 78 of the By-Law.

102. The application and motivation indicate that the structure was built during the Covid-19 lockdown in order to provide a family with a safe place to reside during that time. The motivation, however, indicates that construction was only completed during 2022, long after the national lockdown had been lifted. Additionally, the complaints relating to this structure were first received in January 2022 at which time construction was in its early stages.

103. This was the first of a number of applications by the first respondent. The City explained that, as is ordinarily the case with an application of this nature, it was randomly assigned to a Development Manager assessment officer.

104. The application was assessed at face value, namely an application for an administrative penalty only in respect of constructing the Nutec structure in contravention of the 3 metre building line. The extent of the contravention was marked as 22m² and, as such, the first respondent was exempted from payment of any penalty in terms of a staff circular that provides for categories of contraventions to be exempted from section 130 of the By-law. One such category is a structure that contravenes a common boundary line on land zoned single residential 1, provided that the total contravention does not exceed 25 m², the contravention is on the ground floor and the structure is a single storey that does not exceed 4 metres in height, measured from the existing ground level to the top of the roof of the structure.

105. The contravention disclosed by the first respondent in his application for an administrative penalty for the Erica Property was both inaccurate and incomplete in that it disclosed only a portion of the unlawful land use and building works identified by the City during the various inspections.

106. Unfortunately, the case officer did not know this and, as a result, the first respondent’s application was neither questioned nor assessed in the context of the on-going litigation, or the previous enforcement notices issued. When viewed as a single, first-time, contravention it met the requirements for a penalty exemption and the exemption was granted.

107. Despite the exemption that has been granted in respect of the Nutec structure, it remains the case that there are no approved building plans for the structure and that it is therefore unlawful. The administrative penalty application has no effect on this. It also remains the case that there are many more instances of non-compliance at the Erica Property. In this regard, for example:

107.1. The plan submitted by the first respondent shows that the existing patio is nestled between the Nutec structure on its left and the existing dwelling on its right. The existing dwelling is portrayed as being built right up against the boundary wall. The building plan annexed to the founding affidavit illustrates that the area to the right of the existing patio is, in fact, an approved garage. The first respondent has thus masked the plan by falsely depicting the garage as part of the existing dwelling. Masking the plan in this way allows the first respondent to utilise this space as part of the existing dwelling, in other words for accommodation. While there would be no building line contravention if this space was used as a garage, there is a building line contravention if the space has been incorporated into the main dwelling. The administrative penalty application is silent on this issue.

107.2. The space marked on the plan as “EXISTING GARAGE” and measuring 23.94 m² also contravenes the 3 metre building line. This space has been converted for use as accommodation. The administrative penalty application makes no mention of this. Given that the first respondent has labelled the Nutec structure as a proposed second dwelling, this can only mean that the erstwhile garage will be a proposed third dwelling. As such, the first respondent would also be in contravention in respect of the building line boundary there.

107.3. The first respondent does not address the fact that, despite marking the Nutec structure as a proposed second dwelling (suited for use by a single person or family), the structure is actually four separate dwelling units, each of them fitted with individual cooking and ablution facilities and electrical connections.

107.4. The first respondent does not deal with the fact that the Nutec structure has been erected over an unfilled swimming pool and is not properly stabilised.

107.5. The application makes no reference to the internal renovations carried out by the first respondent. These changes were all carried out without prior building plan approval.

108. In my view, the City has established by means of the aforegoing that the application for an administrative penalty submitted by the first respondent in respect of the unlawful building works at the Erica Property, does not and cannot serve the purpose of regularising them for two independent reasons, namely (1) a successful application for an administrative penalty does not rectify a contravention and (2) the application was incomplete and inaccurate.

109. Even with the administrative penalty exemption that has been granted, the building plans submitted by the first respondent cannot be approved and the unauthorised building works remain unlawful. Furthermore, a further comprehensive administrative penalty application must be submitted for any approval to even be a legal possibility (section 130(4) of the By-Law).

110. The City submits, in my view correctly, that the first respondent is intent on circumventing the regulatory framework and that, absent a court order, the City has little to no chance of effectively enforcing its regulatory framework.

111. In my view, therefore, the City has established the various instances of unlawfulness adumbrated above in respect of the Erica Property.

Erf 2278 Milnerton: the Heather Property

128. Inspections at the Heather Property revealed the following:

128.1. Two Nutec structures had been erected on the property, one as a single dwelling unit, while the other was divided into three dwelling units.

128.2. The existing garage was converted into a bedroom.

128.3. The carport was converted into four bedrooms with a corridor that was interleading into the main dwelling, where three bedrooms, a kitchen and a bathroom had been created at the back of the house.

128.4. Three bedrooms were created internally.

128.5. There are a total of fifteen bedrooms on the property.

129. The first respondent’s application for an administrative penalty indicates that the first respondent converted a garage into a room and erected seven more rooms for accommodation purposes. The application was not accompanied by an application for rezoning or an indication that this property would be used as a boarding house. This is in circumstances where the first respondent has created at least ten additional accommodation spaces at the property.

130. Although the application indicates the construction of seven bedrooms, the accompanying plan shows eight units outside of the main dwelling and does not indicate any internal changes. No explanation is provided for this discrepancy.

131. The application is silent in respect of the building line contraventions brought about by the conversion of the garage and carport into dwelling units. The administrative penalty application is not accompanied by an application for a permanent departure.

132. In my view, therefore, the City has established the various instances of unlawfulness adumbrated above in respect of the Heather Property.

General observations in regard to the Properties and the administrative penalty applications

133. It appears that the first respondent has submitted the administrative penalty applications referred to above (“the AP applications”) in the mistaken belief that they can allow him to avoid the consequences of the relief sought in the City’s application. They appear not to be good faith attempts to regularise his unlawful conduct. They are also not effective for the reasons set out above.

134. As dealt with above, the first respondent has submitted documents to the City which significantly understate the extent of the unlawful building works and usage on the Properties. As a result, these applications cannot and will not serve even as a first step in the process to regularise the problems identified by the City, let alone to regularise them.

135. In Lind and Another v Trustees for the of the time being of The Indigo Trust (T3685/96) and Another (10072/2020; 6800/2021) [2021] ZAWCHC 97 (18 May 2021), it was alleged that an area depicted as a garage on a building plan had been deliberately mislabelled in order to obtain the approval of a building with a much greater floor space than permitted in terms of the SR1 zoning scheme, with the intention that much of the area that had been marked as garage space would subsequently be used for other purposes after the building had been completed. In finding that there was merit in the allegation, the court held as follows at paragraph 20:

“It is obviously important that building plans submitted for approval in terms of the Building Regulation Act should speak for themselves. In the vast majority of cases the two most important considerations in the assessment of such plans in terms of s 7(1)(a) of the Act for the purposes of legal compliance are compliance with the National Building Regulations and compliance with the land use and development restrictions in terms of the applicable zoning scheme. The assessment must be objective in nature if the purpose of the legislation is to be achieved. The legal compliance (or lack thereof) of the building plan application must be apparent not only to the officials or body charged with undertaking the assessment, but equally so to any other informed person (including a court) reviewing the plans. Self-evidently, that cannot happen unless the plans accurately reflect not only the dimensions but also the intended usage of the components of the contemplated building that they purport to depict.”

136. Section 78 (quoted above) of the By-Law imposes a duty on an applicant in any application made in terms of the By-Law to ensure that no misrepresentation is made to the City, that all information furnished to the City is accurate and that the application does not omit any relevant information.

137. The plans and applications submitted by the first respondent cannot regularise the position as they do not disclose the extent of the unlawfulness, as is required for an administrative penalty application. In any event, the administrative penalty application, even if granted, does not regularise or rectify the contraventions. That must be done in accordance with section 130 as read with section 42.

138. The City argued that the conduct of the first respondent has demonstrated that the only way in which the City can effectively ensure compliance with its regulatory scheme is through a mandatory order in terms of which the first respondent is directed to submit applications to regularise the position. It was further argued that the first respondent cannot be left to submit applications as and how and when he chooses because he will simply continue to do so in a manner that understates or conceals the true extent of the nature of the contraventions indefinitely. While the content of the second of these sentences is correct, I raised with Ms O’Sullivan, who appeared for the City, my unease with ordering and directing the first respondent – under pain of contempt proceedings – to submit applications when he could, conceivably, give up the ghost and decide not to regularise and rather to restore. In that event he would have to remove the irregularities and restore the applicable Properties to be in compliance with the approved plans and the City would be entitled to its enforcement and rectification relief as sought on the passing of the first or any other deadline set by the court for the regularisation process to be undertaken.

139. I have catered for this in the order at the end of this judgment. To be clear insofar as that order is concerned, as soon as any one (or more) of the items in paragraphs 4 and 5 of the order at the end of this judgment is not complied with timeously and in full, irrespective of whether the first respondent intends to attempt to regularise or not, the City will be entitled to set the matter down for the enforcement relief in paragraph 6 of the order at the end of this judgment.

140. As I have found above, there have been numerous building contraventions without the necessary authorisations and permissions from the City. The extensive contraventions and the deficient AP applications canvassed above, tend to support the City’s contentions and I therefore agree therewith, subject to what I have indicated in the above paragraph.

141. It is a fundamental principle of our law that a person may not engage in an activity without all the necessary authorisations or permissions required (Maccsand (Pty) Ltd v City of Cape Town & Others 2012 (4) SA 181 (CC) at paragraph 17 and 18; Dark Fibre Africa v City of Cape Town 2019 (3) SA 425 (SCA) at paragraph 37).

142. In my view, the City is therefore entitled to the declaratory relief that it seeks as well as the relief directing the first respondent to file a set of accurate and compliant regularisation applications should he wish to regularise, and if he does not do so and does not remove the irregularities and restore the applicable Properties to comply with the approved plans, then the enforcement and rectification relief may be sought by the City.

The interdictory relief

143. The City seeks interdictory relief which it avers is aimed at ensuring future compliance with the Act, the By-Law and the DMS. The relief sought is:

143.1. To prevent the first respondent, or any entity or person controlled or instructed by him, from contravening the Act, the By-Law and the DMS in future, be it in respect of the Properties or any other property owned or controlled by the first respondent.

143.2. To ensure that the City officials may enter the Properties, or any other property owned or controlled by the first respondent, in order to inspect and monitor compliance with the order granted in this matter.

144. I indicate below, in formulating the order in this matter, the extent to which I agree with the relief sought.

145. The requirements for a final interdict are well established: a clear right, an injury actually committed or reasonably apprehended (i.e. a future injury), and no other satisfactory remedy, that is, an absence of similar protection by any means other than an ordinary remedy. (Setlogelo v Setlogelo 1914 AD 221 at 227). These elements are considered below in turn.

(a) A clear right

146. An authority charged with enforcing a statute has a clear right to prevent its contravention (Minister of Health v Drums and Pails Reconditioning CC t/a Village Drums & Pails 1997 (3) SA 867 (N) at 872CE). The City has a clear right to insist on and enforce compliance with the statutory scheme in the interests of the local community.

147. In my view, the facts of this matter illustrate that: The first respondent has demonstrated a sustained disregard for the law. He has failed to comply with the requirements of the notices, letters of demand and further requests from the City and persists in submitting inaccurate and incomplete applications to the City.

148. The City has a statutory duty to ensure the enforcement of the provisions of the statutory scheme and to approach the court to obtain appropriate relief (including an interdict) against any person who in contravention thereof, as in United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T) (especially at 348IJ and 349F), referred to in Chung Fung (Pty) Ltd and Another v Mayfair Residents Association and Others (2148/2019) [2023] ZAGPJHC 263 (20 March 2023) at para 18, both of which are full bench decisions.

149. The City has a clear right (and obligation) to insist on and enforce compliance with the provisions of the Act, the By-Law and the DMS in the interests of the local community. This has previously been confirmed in the context of the Land Use Planning Ordinance 15 of 1985 which was the predecessor to LUPA (City of Cape Town v Maccsand (Pty) Ltd and Others 2010 (6) SA 63 (WCC) at 81; Maccsand (Pty) Ltd v City of Cape Town and Others 2012 (4) SA 181 (CC) at para 17)

150. In Ostrowiak v Pinetown Town Board 1948 (3) SA 584 (D) at 591 (cited with approval in Bitou Local Municipality v Timber Two Processors CC and Another 2009 (5) SA 618 (C) at 626F) it was held as follows:

“The public interest requires that the control and regulation of buildings in local authority areas should be placed in the hands of the local authority itself ... (I)f private persons are permitted to erect buildings in the teeth of the law, then there is an end to any sound local government.”

151. Similarly, in United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T) it was held at 348IJ as follows:

“The respondent has not only a statutory duty but also a moral duty to uphold the law and to see to due compliance with its town planning scheme. It would in general be wrong to whittle away the obligation of the respondent as a public authority to uphold the law. A lenient approach could be an open invitation to members of the public to follow the course adopted by the appellant, namely to use land illegally with a hope that the use will be legalised in due course and that pending finalisation the illegal use will be protected indirectly by the suspension of an interdict.”

152. I am of the view that the City has a clear right (and an obligation) to enforce the Act, the By-law and the DMS.

(b) An injury committed or reasonably apprehended

153. The numerous instances of non-compliance adumbrated above establish the injury having been committed.

154. Those instances, together with the numerous instances of non-compliance with notices and incomplete AP applications, establish the reasonable apprehension of future injury.

155. The requirement of an injury actually committed or reasonably apprehended is therefore, in my view, established.

(c) No adequate alternative remedy

156. The City avers that there is not any effective, alternative remedy which is available to it to ensure that the first respondent does not continue with his unlawful conduct in future.

157. It is open to the City to lay criminal charges against the first respondent. This does not ensure that the first respondent does not simply continue with his unlawful conduct at the Properties or sell the Properties, purchase new properties and then operate as he has done in this matter. His impunity in doing so up until now demonstrates this.

158. In Minister of Health v Drums and Pails Reconditioning CC t/a Village Drums & Pails 1997 (3) SA 867 (N) at 877EG it was held that the fact that the particular statute in issue in that matter provides for a criminal sanction for contravention thereof, was no bar to the granting of an interdict.

159. In Berg River Municipality v Zelpy 2065 (Pty) Ltd 2013 (4) SA 154 (WCC) it was held at paragraph 45 that:

“The fact that the Municipality might be able to lay a charge in terms of s 4(4) in respect of the unlawful erecting of the new structures is not an alternative remedy in respect of the unlawful use of the completed structures. It would not even have been an adequate remedy in respect of the unlawful erecting of the new structures. As I indicated earlier, the only penalty is a fine not exceeding R100 per day of unlawful building work. That would not come to more than about R27 000. Zelpy built the structures for commercial exploitation. Its managing director and controller Mr Edmondson stated in the answering affidavit that the extension of the accommodation facilities in 2004 was the only way to make the commercial operation viable. He states that Zelpy spends more than R110 000 per year on repairs and maintenance. Its annual turnover, according to annexed financial statements, currently exceeds R1 million. Although the financial statements reflect an accounting loss, it is wholly implausible that Zelpy would have been deterred from erecting the unlawful structures by exposure to the modest fine for which s 4(4) makes provision.”

160. Even if a conviction results from the institution of criminal charges, this will not prevent continuing or future unlawful conduct, as it punishes past conduct. The fines which may be imposed are furthermore of a limited nature. As held in Zelpy, the criminal process is likely to be singularly ineffective in putting an end to the unlawful conduct of the first respondent.

161. For all of these reasons, in my view criminal sanction is not an effective alternative remedy, nor is it an “ordinary” remedy.

162. There are sound policy reasons for not restricting local authorities to penal sanctions. The damage caused by the unlawful conduct is damage to the public interest and to the City’s ability to ensure compliance with the law.

163. The City has demonstrated that the first respondent has continued with his non-compliance even after this application was launched. The first respondent is motivated to continue in future as, in his own words, his “… business undertakings mainly include but are not limited to purchasing, developing immovable property for purposes of providing affordable accommodation.” And that “The City is not only frustrating my said business but is now misusing and/or abusing its power or discretion to discriminately target and stifle business through its conducts” when what the City is actually doing is enforcing the Act, By-Law and DMS as it is obliged to do.

164. This echoes the findings of Rogers J in Zelpy quoted above.

165. I am therefore satisfied that the City has no effective alternative remedy.

Mediation

166. The first respondent avers that the City ought to be compelled to mediate the dispute in terms of uniform rule 41A.

167. In my view, any further mediation will not prove successful on the facts of this matter, whether it is formal or informal. The City, despite filing a formal opposition to mediation in terms of rule 41A, agreed to informal mediation, but that did not progress the matter in any respect. That is not surprising, because the first respondent’s unambiguous goal is to maintain, for all intents and purposes, what I have found to be unlawful structures. This is also reflected in the defective and incomplete applications which were submitted as a part of this attempted mediation.

168. In any event, it has been held that parties to litigation cannot be compelled to mediate in terms of rule 41A. In Kalagadi Manganese (Pty) Ltd and Others v Industrial Development Corporation of South Africa Ltd and Others (2020/12468) [2021] ZAGPJHC 127 (22 July 2021) it was held at para 30 as follows:

“The provisions of R 41A accord with the understood purpose of mediation and its general nature and functioning. At the expense of a degree of repetition:

a. Mediation is encouraged as a form of alternative dispute resolution. The only sanction for a failed mediation is the possibility of an adverse costs order;

b. Mediation is entirely voluntary and if the parties, or only two of them, are so minded they are at liberty to agree on such terms of mediation as they wish;

c. An unwilling party cannot be compelled to mediate. The furthest a court can go is to direct a litigant “to consider” mediation…”

169. I am of the view that directing the City and the first respondent to consider mediation will be of no use.

170. The mediation defence is therefore of no merit.

Authority to institute / oppose proceedings

171. The first respondent challenges the authority of the City to institute the proceedings and to oppose the counter-application.

172. The City attached all relevant authorities to its replying affidavit in the main application and its answering affidavit in the counter-application which it submits disposes of the point entirely. I agree.

Complaints not provided

173. The first respondent avers that he had no knowledge of the complaints against him.

174. While the complaints themselves were not provided, because section 125 of the By-Law does not oblige the City to provide them, the first respondent was notified by the City and thereafter its attorneys when the City received complaints of unlawful building works and use of the Properties, and that the City required access to the Properties in order to investigate those complaints. Access was then either arranged or provided by the first respondent, which, the City submits, put paid to his allegations that he was not aware that complaints had been made. This is self-evident and I therefore agree.

175. Further, the City contends as follows: the complaints are relevant only insofar as they serve to explain the history of the matter to the court and that they serve only to explain how the City first became aware that there may be contraventions for the City to investigate. It is the investigation and the inspections themselves that gave rise to the main application and it is therefore those inspections that are relevant for the determination of this matter, and not the complaints that were initially received in relation to the first respondent. A complaint cannot and does not affect the rights of the party against whom they are laid. In terms of s 125(2) of the By-Law (quoted above) the City must investigate a complaint. If in such an investigation the City independently forms the opinion that the By-law is being contravened, the City may, in terms of section 124(1) of the By-Law (quoted above), take any one or more of the enforcement measures contemplated in that Chapter of the By-Law, and may take them in any order or combination or with one as an alternative to another in the event of a failure to comply, or sequentially. If the City concludes that there has been no contravention of the By-Law, then there is nothing to be answered. In other words, the first respondent is not before the court answering to the complaint of the MCRPA. He is before the court answering to the independent investigations carried out relating to contraventions of the By-Law and the Building Act. I agree with these averments.

176. It is of some moment that the first respondent was provided with each complaint as a part of the City’s founding papers and has had ample opportunity to respond to them should he have considered it relevant to do so. He has not done so despite having them in his possession since at least January 2024.

177. As to the investigations themselves, the first respondent cannot contend that he had no knowledge of them given that he had to engage with the City’s inspectors in order to arrange access to the Properties for the purpose of the City carrying out its investigations. There would be no application before this court but for those investigations and those investigations, in turn, could not have been carried out without access to the Properties. In the absence of a court order giving the City access, which it did not and does not have, the City needed permission from the first respondent to access the Properties, which it obtained. First respondent confirmed this in writing in an email to the City on 9 August 2022 in which he stated: “I have urgently managed to arrange for access for inspection …”

178. In the premise, in my view, the City has made out a case for appropriate relief.

179. The counter-application will now be considered to determine whether it affects the aforesaid conclusion.

Whether the review is out of time

189. The City contends that the application for review is also out of time (1) in terms of the 180 days provided for in PAJA and (2) it has been brought after an unreasonable delay that ought not to be condoned and which has not been explained by the first respondent.

190. The first respondent must, in terms of section 7(1) of PAJA, have launched the counter-application without unreasonable delay and within 180 days of becoming aware of the administrative action.

191. In Opposition to Urban Tolling Alliance and Others v The South African National Roads Agency Ltd and Others [2013] 4 All SA 639 (SCA) it was held at paragraph 26 (approved by the Constitutional Court in Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC) at paragraph 49) that the 180 day period set out in section 7(1) of PAJA is indicative of the fact that the legislature considered a delay exceeding 180 days to be:

“… unreasonable per se. It follows that the court is only empowered to entertain the review application if the interests of justice dictates an extension in terms of section 9. Absent such extension, the court has no authority to entertain the review application at all.”

192. The “… clock starts running from the date that the applicant became aware or reasonably ought to have become aware of the action taken.” (Buffalo City at paragraph 49). If the first respondent became aware of what it regards as the City’s decisions on 15 January 2024, the counter-application ought to have been launched by 15 June 2024. The first respondent launched the application two months later without any explanation for his failure to adhere to the 180 day time limit of PAJA. In terms of the authority referred to above the delay is per se unreasonable. Since no explanation is offered for it whatsoever, that finalises the question for the purposes of PAJA.

193. Insofar as undue delay in a legality review is concerned, this is not addressed at all by the first respondent. The Constitutional Court has held in Buffalo City at paragraph 52) that:

“… the reasonableness of the delay, must be assessed on, among others, the explanation offered for the delay … [which must] cover the entirety of the delay ... But, as was held in Gijima, where there is no explanation for the delay, the delay will necessarily be unreasonable.”

194. In summary, there is no explanation by the first respondent for his delay in launching the counter-application. There is a suggestion that he only became aware of the ‘decisions’ of the City on 28 June 2024 while consulting with his attorneys. This cannot be so because, as the City points out, this would have to mean that the first respondent and his attorneys, who had represented him since February, had not read the main application. If this is true, the City avers that it is anything but reasonable conduct given that the parties were in the midst of ongoing litigation and that the first respondent had agreed to file answering papers in April 2024. I agree with this submission.

195. The first respondent has presented no basis upon which this court could exercise its discretion in his favour. The delay has not been explained and no reasons have been advanced for why the delay ought to be excused.

The City contends that the counter-application is an abuse of process

196. The City submits that there are several indicators that the counter-application is not a legitimate attempt to review and set aside any decision of the City, but is rather an attempt to delay a final decision in the main application. In making this submission the City relies on inter alia the following:

196.1. The first respondent strenuously insists that the main application be mediated in terms of rule 41A. If the first respondent is of the view that the City’s conduct in instituting the main application was unlawful, then there is nothing to be mediated. Despite the launching of the counter-application (which preceded the filing of the first respondent’s answering affidavit in the main application) the first respondent maintains his position in the main application that the matter must be mediated. This notwithstanding an already unsuccessful attempt at mediation. This indicates that the ultimate goal of the first respondent is to delay finalisation of the main application and nothing more.

196.2. The time periods for the hearing of the counter-application further support this view in that the main application was to be finally determined on 20 August 2024, however the counter-application, which included an application to stay the main application, made no provision for it to be heard prior to the hearing of the main application. It was, in the City’s submission, a clear attempt to stay the main proceedings through nothing more than the threat of the counter-application’s relief.

196.3. The true purpose of the counter-application was to secure the further delay of the hearing of the main application.

196.4. The first respondent, who is dominus litis in the counter-application, has not filed a replying affidavit. The City has met every deadline imposed by the court for the exchange of affidavits. The first respondent is persisting with such delaying tactics in an attempt to once again prevent the matter from being heard.

197. I might add that no heads of argument in the counter application (or the main application) have been delivered by the first respondent. A further factor is the joinder application which effectively hijacked the hearing of the matter in October 2024 (crowded out) and then in November 2024.

198. The City contends that the first respondent is litigating in an unacceptable manner and submits that the Court ought to view this as an abuse of this court’s processes.

199. While there appears to be some merit in these contentions, I do not consider it necessary to make a decision thereon bearing in mind my views expressed herein on other aspects applicable to the counter-application.

The substantive grounds underlying the review

The City’s municipal planning competency

233. The City contends that the counter-application is premised on a misapprehension and erroneous interpretation of the relevant provisions of the By-Law.

234. The City has executive authority in respect of, and the right (and obligation) to administer, the matters listed in Part B of Schedule 4 and Part B of Schedule 5 of the Constitution. This includes the administration of the legislative provisions that govern municipal planning and building regulations, such as the By-Law.

235. The City has the constitutional and statutory obligation to regulate land use within its geographical area of jurisdiction. In doing so, the City applies and enforces the By-Law, schedule 3 of which is the DMS.

236. The City applies and administers the By-Law (as well as its building related competency in terms of the Act) to facilitate the lawful and appropriate development and use of land within the City. This all forms part of the ‘Developmental duties of municipalities’ of the City (in terms of section 153 of the Constitution) and the constitutional object of local government ‘to promote social and economic development’ (section 152(1)(c) of the Constitution).

Certain contentions of the City in regard to the constitutional aspects

247. As mentioned, no relief in respect of a Constitutional challenge is sought in the first respondent’s amended notice of motion. In the Rule 16A notice, the first respondent alleges that the impugned provisions “confer wide and unfitted [unfettered] power upon the City to entertain and investigate all and/or any complaint of an alleged contravention of the [By-Law] against inter alia, an owner(as the Applicant) … determine guilt, issue sanctions and enforce compliance against inter alia, an owner without giving a notice and opportunity to the owner and/or the person against whom such complaint is being made to have access to such complaint and respond thereto at any time…’.

248. The Rule 16A notice avers that the “City delegates such unwelded power to entertain, investigate, determine guilt, sanction and enforce said finding prima facie or bare allegations against inter alia an owner. In this instance, City, did so without following procedural fairness, without notice, or furnishing such complaints or opportunity to respond to the said complaints or giving reasons or provide mechanisms to lodge internal remedies in terms of Act 3 of 2000.”

249. The City contends as follows: The Constitutional challenge lacks any factual foundation, because the impugned legislative provisions do not state nor have the effect that the first respondent suggests. In other words, the first respondent alleges that the impugned provisions allow for a host of unlawful behaviour on the City’s part when, in fact, the provisions themselves do not provide for any such unlawful conduct.

The City’s investigative function

250. The enforcement steps taken by the City under the By-Law, as provided for in the impugned provisions, are only followed after the City:

250.1. has received complaints of alleged unlawful building works (or establishes the unlawfulness itself, which is not a common reality because of the high number of properties in the area concerned and the very small number of inspectors, as referred to below); and

250.2. has investigated the complaints as it is obliged to do by section 125 of the By-Law.

251. The crux of the first respondent’s challenge is that the City entertained the unlawful building works complaints anonymously, and that it then carried out its investigations without notice to him, without allowing him to have sight of the complaints, and without affording him an opportunity to participate in the investigation. He also contends that the City makes a finding of guilt.

The City’s enforcement options

267. The various options can be taken individually or as a combination (‘one or more’) or in any sequence.

268. One option is the imposition of administrative penalties, when someone in the position of the first respondent accepts that they have indeed contravened the provisions of the By-Law. As explained in detail above, when an owner wishes to rectify the contravention, the owner must, as a first step, apply for the determination of an administrative penalty in terms of section 129 of the By-Law before it can move on to the rectification of the contravention(s) in terms of section 130, read with section 42. Section 129 normally finds application when an owner accepts that it has contravened the By-Law and seeks to rectify the contravention. In this event, the contravention is admitted and the City plays no role in that admission (and, if the owner wishes to do so, the contravention can be sought to be rectified in terms of section 130, read with section 42, but only after the administrative penalty has been paid). In such a case, the matter is referred to the Municipal Planning Tribunal, which will make a ruling in terms of the penalty to be paid, after the tribunal has invited the owner to make written representations (which the tribunal must do, in terms of section 129(4)) and, if necessary, called for additional information, in terms of section 129(6)(a). In such a case, the opportunity to provide written representations and further information, if called for, gives effect to an owner’s right to audi alteram partem.

269. However, where there is no such admission of a contravention, the City is obliged to seek enforcement through one of the other mechanisms provided for in the By-Law. These mechanisms include both civil and criminal proceedings. Section 126(2)(g) of the By-Law provides that the City may take one or more of the following measures:

269.1. Withdraw a prior approval (section 127).

269.2. Issue a directive (section128).

269.3. Apply for an administrative penalty (section 129 and 130)

269.4. Apply to a competent court for appropriate relief (section 131 and132).

269.5. Institute criminal prosecution (section 133).

270. Each of those measures, in turn, makes provision for representations or submissions to be made before a decision affecting an individual’s rights is taken by the City, namely:

57.1. Section 127(1)(b) requires the City to invite the owner to make written representations before it may act in terms of that section, thus complying with audi.

57.2. Section 128(1)(b) similarly requires the City to invite an owner to make written representations before it may act in terms of that section which, the City submits, disposes of the Constitutional challenge against section 128. I agree.

57.3. Sections 129 and 130 provide for the owner himself to make application for an administrative penalty where the contravention is admitted by the owner. The City cannot be expected to give such an owner an opportunity to make prior representations about his/her/its guilt when such acknowledgment is made by the owner. The section 129 and 130 processes themselves do, however, contain opportunities to make written representations as a part of that process in terms of sections 129(4) and (6)(a), as referred to above. These representations, however, pertain to the penalty to be imposed given that the contravention is already admitted when the application is submitted.

57.4. Sections 131 and 132 entitle the City to approach the High Court for appropriate relief. Inherent in that process is the right of the owner to defend any proceedings launched by the City and thus exercise their rights to audi alteram partem. Those sections have not been impugned.

271. The first respondent is therefore incorrect when he asserts that the impugned provisions allow for a finding of guilt against him without due process being followed.

272. The enforcement provisions of the By-Law are preceded by an investigation during which the City does not act as a determinative body, as per Brenco, Norvartis and Simelane above.

273. Once the investigation is completed, the first respondent was informed of its outcome and he then had an election as to which steps to take from that point.

274. In several respects, the first respondent, acting under legal advice, acknowledged his wrongdoing and made application for administrative penalties, as dealt with above.

The validity of legislation is fact-independent and objective

275. The correct approach to legislative interpretation is trite. The method of interpreting statutes is settled. In Minister of Water and Sanitation and Others v Lötter NO and Two Similar Cases 2023 (4) SA 434 (CC) it was held as follows at paragraph 19):

“In Cool Ideas Majiedt AJ held that words of a statute “must be given their ordinary grammatical meaning, unless to do so would result in an absurdity”. Three riders to this are that: the provisions must be interpreted purposively; the provisions must be contextualised; and statutes must, as far as is reasonably possible, be interpreted in conformity with the Constitution.”

276. When a court is called upon to assess the constitutionality of a legislative provision, it carries out an objective exercise (Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at paragraph 26, independent of the subjective circumstances of a litigant (Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC) at paragraph 25).

277. The City contends that the constitutional challenge is premised on the first respondent’s incorrect interpretation of the City’s processes. It also contends that it is premised on the assertion that, because the first respondent did not understand that in making application for an administrative penalty, he was admitting guilt. I agree with both of these contentions.

278. The fact that the first respondent may not have understood that in making application for an administrative penalty, he was admitting his guilt, is subjective circumstance which cannot render the By-Law unconstitutional.

279. The wording of the By-Law is clear and unambiguous. It sets out the steps available to the City in the event of contraventions of the By-Law, and it sets out the steps available to an individual in the position of the first respondent.

280. As dealt with above, in respect of each step where the City acts as a determinative body, provision is made for audi alteram partem.

281. In my view, therefore, there is no basis for the constitutional challenge.

282. The counter application for review and constitutional challenge would therefore also fall to be dismissed on this basis.

Costs

(a) The costs of the main application

283. The main application has been successful (the variations of the relief sought which are dealt with below do not have any material effect on this) and there is no reason that costs should not follow that result. The costs of the main application will therefore be ordered in favour of the City.

284. The matter also warranted the employment of two counsel.

285. The City requested costs on the scale as between attorney and client.

286. In In re Alluvial Creek Ltd 1929 CPD 532 it was held as follows at 535:

“Now sometimes such an order is given because of something in the conduct of a party which the Court considers should be punished, malice, misleading the Court and things like that, but I think the order may also be granted without any reflection upon the party where the proceedings are vexatious, and by vexatious I mean where they have the effect of being vexatious, although the intent may not have been that they should be vexatious. There are people who enter into litigation with the most upright purpose and a most firm belief in the justice of their cause, and yet whose proceedings may be regarded as vexatious when they put the other side to unnecessary trouble and expense which the other side ought not to bear.”

[emphasis added]

287. This has been upheld and applied in many cases, including in this division in Absa Bank Limited v S J Du Toit 1995 (3) SA 265 (C) at 268BE and Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic and Others 2014 (1) SA 381 (WCC) at paragraph 61 and in the SCA in Claase v Information Officer, South African Airways (Pty) Ltd 2007 (5) SA 469 (SCA) at paragraph 11 and Boost Sports Africa (Pty) Ltd v The South African Breweries (Pty) Ltd 2015 (5) SA 28 (SCA) at paragraph 27.

288. No defence was disclosed at all to the myriad contraventions identified in the main application, as discussed above. The opposition to the main application was therefore devoid of any prospect of success whatsoever. The City was put to unnecessary trouble and expense in having to bring the Main application. In this sense, as contemplated in Alluvial Creek, the opposition to the main application was vexatious.

289. In the result, I am satisfied that an award of the costs thereof against the first respondent on the attorney client scale would be appropriate in the exercise of the court’s discretion.

The costs of the counter-application

290. A judicial review (Harrielall v University of KwaZulu-Natal 2018 (1) BCLR 12 (CC) at paragraphs 11, 17 and 18) and a constitutional challenge attract the application of the Biowatch rule (Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC) at paragraph 28). That rule is that the court will not order costs against litigants who seek to enforce their constitutional rights, “The underlying principle [being] to prevent the chilling effect that adverse costs orders might have on litigants seeking to assert constitutional rights.” (Harrielall at paragraph 11).

291. The Constitutional Court has qualified this rule, holding, for example, in Harrielall at paragraphs 12 to 14 as follows:

“[12] However, the rule is not a licence for litigants to institute frivolous or vexatious proceedings against the State. The operation of its shield is restricted to genuine constitutional matters. Even then, if a litigant is guilty of unacceptable behaviour in relation to how litigation is conducted, it may be ordered to pay costs. This means that there are exceptions to the rule which justify a departure from it. In Affordable Medicines this Court laid down exceptions to the rule. Ngcobo J said:

“There may be circumstances that justify departure from this rule such as where the litigation is frivolous or vexatious. There may be conduct on the part of the litigant that deserves censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs.”

This Court takes active cognisance of these limitations on the Biowatch principle, which it recently applied in Lawyers for Human Rights [v Minister of Home Affairs 2017 (5) SA 480 (CC)].

[13] In yet another Lawyers for Human Right [v Minister in the Presidency 2017 (1) SA 645 (CC)], this Court defined the exceptions to the Biowatch rule. It stated:

“What is “vexatious”? In Bisset the Court said this was litigation that was “frivolous, improper, instituted without sufficient ground, to serve solely as an annoyance to the defendant” And a frivolous complaint? That is one with no serious purpose or value. Vexatious litigation is initiated without probable cause by one who is not acting in good faith and is doing so for the purpose of annoying or embarrassing an opponent. Legal action that is not likely to lead to any procedural result is vexatious.”

292. In Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others [2020] 2 All SA 330 (SCA) it was held as follows at paragraph 84:

“For the Biowatch principle to apply the case should raise genuine, substantive, constitutional considerations. The rule does not mean risk-free asserted constitutional litigation.”

293. What can be distilled from the aforegoing for present purposes is the following:

293.1. Biowatch is restricted to genuine constitutional matters.

293.2. It does not apply to litigation instituted without sufficient ground, or with no serious purpose or value or without probable cause or that is not likely to lead to any procedural result.

294. I think that both of the above factors apply in the instant matter. In addition, in my view, the counter-application was instituted to protect the first respondent’s business (note his statements quoted above as to the (plainly unlawful) business conducted by him at the Properties) and not to raise genuine constitutional concerns. At the crudest level, relief in respect of a constitutional challenge was not even formulated in the notice of counter-application. It was also devoid of any prospect of success whatsoever.

295. In my view therefore, the instant matter is an exception to the application of Biowatch.

296. The first respondent will therefore pay the costs of the counter-application. As to the scale of costs, I think that the considerations in the above section are equally applicable and the attorney client scale will apply.

297. The matter also warranted the employment of two counsel.

298. In the result, I am satisfied that an award of the costs of the counter application against the first respondent on the attorney client scale would be appropriate in the exercise of the court’s discretion.

299. Costs stood over on 20 February 2024, 20 August 2024 and 19 February 2025. I see no reason why those should not follow the result.

Order

300. As mentioned above, I interrogated and scrutinised in depth with Ms O’Sullivan the relief sought in the notice of motion in the main application and identified certain features which I considered to require variation, which are reflected in the order below, including:

300.1. Certain time periods for further possible action by the first respondent were extended.

300.2. The direction against the first respondent would apply should he wish to attempt regularise the contraventions identified above and in paragraph 1 to 3 of the order below. This is because I considered that he was not obliged to do so, having another option, namely to decide to abandon the irregularities (in which event he should not be compelled by order of court under pain of contempt to regularise them, but must remove them). In that event, and also in the event that he does nothing or does not fully and timeously comply with any item in paragraphs 3 and 4 of the order below, the City would then be entitled to take the steps in paragraph 6 of the order below.

300.3. To be clear, as soon as any one (or more) of the items in paragraphs 4 and 5 of the order below is not complied with timeously and in full, irrespective of whether the first respondent intends to attempt to regularise or not, the City will be entitled to set the matter down for the enforcement relief in paragraph 6 of the order below.

300.4. The order in respect of access was limited to the Properties (paragraph 9 of the order below).

300.5. The relief in respect of the City being entitled to bring contempt proceedings on 5 days’ notice was deleted. Ms O’Sullivan agreed to this. I considered that the City has the right to bring such proceedings, while the notice period depends on the facts and exigencies at play at the time and that it would not be appropriate for this judgment to be seen to be prescribing any such period to the court which would be faced with such proceedings.

301. In the result, it is ordered as follows:

1. It is declared that the additions and alterations at erf 840 Milnerton, situated at 12 Erica Way, Milnerton, Cape Town (“the Erica Property”), which are identified and labelled in Annexures “A” and “B” to this Order, and for which no building plan approval has been granted by the Applicant (or “the City”) in terms of the National Building Regulations and Building Standards Act, 103 of 1977 (“the Building Act”), are unlawful.

2. It is declared that the additions and alterations at erf 318 Milnerton, situated at 7 Ceres Road, Milnerton, Cape Town (“the Ceres Property”), which are identified and labelled in Annexure “C” to this order, and for which no building plan approval has been granted by the City in terms of the Building Act or in terms of the City of Cape Town Municipal Planning By-Law (“the By-Law”), are unlawful.

3. It is declared that the additions and alterations at erf 2278 Milnerton, situated at 3 Heather Road, Milnerton, Cape Town (“the Heather Property”), which are identified and labelled in Annexure “D” to this order, and for which no building plan approval has been granted by the City in terms of the Building Act or in terms of the By-law, are unlawful.

4. Should the First Respondent wish to attempt to regularise the illegalities identified in paragraphs 1 to 3 above, he is ordered and directed to:

4.1. Submit application(s) for the imposition of an administrative penalty in terms of section 129 and 130 of the By-Law in respect of all the additions and alterations on the three properties referred to in paragraphs 1 to 3 above which he wishes to attempt to regularise, to the Applicant for its consideration, within 60 calendar days of the granting of this order.

4.2. Submit any further information requested by the City in respect of the administrative penalty application(s) referred to in paragraph 4.1 above within 20 days in terms of s 75(1) of the By-Law.

4.3. Pay the administrative penalty/penalties to the City within 30 calendar days of its/their determination or within such further period as the Municipal Planning Tribunal may decide in terms of section 129(9)(c) of the By-Law.

4.4. Submit the necessary applications in respect of those applications listed in section 42 of the By-Law required in respect of all the additions and alterations on the above properties referred to in paragraphs 1 to 3 above to the City for the latter's consideration, within 60 calendar days of the granting of this order.

4.5. Submit any further information requested by the City in respect of the applications referred to above in this paragraph 4 within 20 calendar days above within 20 days in terms of s 75(1) of the By-Law.

4.6. Submit the necessary building plans to the City within 60 calendar days of the approval of any applications in terms of section 42 of the By-Law (referred to in paragraph 4.4 above) in the event that the applications referred to above in this paragraph are approved.

4.7. Submit any further information requested by the City in respect of the building plan application(s) within 30 calendar days.

4.8. Ensure that the buildings on the applicable properties are altered to comply with any further building plan approval, if obtained from the City, within 90 calendar days of such approval.

5. Should the First Respondent wish to attempt to obtain approval for any or all of the additions and alterations for which no approval has been obtained under the By-Law on erf 308 Milnerton, situated at 10 Algoa Road, Milnerton, Cape Town (“the Algoa Property”), he is ordered and directed to:

5.1. Submit an application for the imposition of an administrative penalty in terms of section 129 and 130 of the By-Law in respect of all the additions and alterations on the Algoa Property, for which no approval has been obtained under the By-Law, which he wishes to attempt to regularise, to the Applicant for its consideration, within 60 calendar days of the granting of this order.

5.2. Submit any further information requested by the City in respect of the administrative penalty application referred to in paragraph 5.1 above within 20 calendar days in terms of s 75(1) of the By-Law.

5.3. Pay the administrative penalty to the City within 30 calendar days of its determination or within such further period as the Municipal Planning Tribunal may decide in terms of section 129(9)(c) of the By-Law.

5.4. Submit the necessary applications in respect of those applications listed in section 42 of the By-Law required in respect of all the additions and alterations on the Algoa Property to the City for the latter's consideration, within 60 calendar days of the granting of this order.

5.5. Submit any further information requested by the City in respect of the applications referred to in this paragraph within 20 calendar days.

5.6. Submit the necessary building plans to the City within 60 calendar days of the approval of any applications in terms of section 42 of the By-Law (referred to in paragraph 5.4 above) in the event that the applications referred to above in this paragraph are approved.

5.7. Submit any further information requested by the City in respect of the building plan application within 30 calendar days.

5.8. Obtain approval and/or confirmation in respect of what is described by the First Respondent as an “existing second dwelling” within 30 calendar days of an order being granted in terms of item 25A of the Development Management Scheme (“DMS”).

5.9. Ensure that the buildings on the property are altered to comply with any further building plan approval, if obtained from the City, within 90 calendar days of such approval.

6. In the event of the First Respondent failing to comply timeously and in full with any of the requirements of paragraphs 4 and 5 above (non-compliance with the first step alone or any other single or more steps will suffice) or failing to remove the irregularities identified in paragraphs 1 to 3 above and failing to restore the applicable properties to be in compliance with the approved plans in respect thereof by the time of the deadline set for the first step (or any other subsequent step if prior steps have been complied with timeously and in full) in paragraphs 4 and 5 above, alternatively in the event, and to the extent, of the City refusing any land use applications and/or the building plan submissions in respect of any of the above four properties (“the Properties”), granting the City leave to apply on these papers, supplemented insofar as may be necessary, for an order incorporating:

6.1. Declarators and interdicts concerning the use of the applicable Properties.

6.2. An order directing the First Respondent to restore the internal configuration of the applicable Properties in accordance with the last approved building plan for each of the applicable Properties within 90 calendar days of the granting of any further order, failing which:

6.2.1. The First Respondent is directed to demolish, within 60 calendar days of the granting of any further order, any and all structures and internal configurations which are not approved by the City; and

6.2.2. Any eviction related relief, insofar as this may be necessary.

7. To be clear, as soon as any one (or more) of the items in paragraphs 4 and 5 of this order is not complied with timeously and in full, irrespective of whether the first respondent intends to attempt to regularise or not, the City will be entitled to set the matter down for the enforcement relief in the above paragraph 6 of this order.

8. The First Respondent (whether directly or through any person and/or entity under the control of or on behalf of the First Respondent), is interdicted and restrained from commencing building works at any of the Properties, or at any other property/ies which the First Respondent or any entity under his control may acquire in future, prior to the approval of such building works under the Building Act, the By-Law and the DMS, and from contravening the Building Act, the By-Law and the DMS in future in this respect.

9. The First Respondent is directed to grant officials of the City access to the Properties for purposes of inspection in order to ensure compliance with this Order.

10. The First Respondent is to pay the costs of the main application, including the costs which stood over on 20 February 2024, 20 August 2024 and 19 February 2025, on an attorney client scale, including the costs of two counsel where so employed.

11. The counter-application is dismissed, with the First Respondent (the applicant in the counter-application) to pay the costs of the counter-application, including the costs which stood over on 20 February 2024, 20 August 2024 and 19 February 2025, on an attorney-client scale, including the costs of two counsel where so employed.

302. For the sake of convenience, I repeat the order made as follows on 25 March 2025:

The application for postponement is refused with costs which will include the costs of the employment of two counsel where so employed, with scale C in terms of section 67A applying.

_________________

A Kantor

Acting Judge of the High Court

Applicant’s legal representatives:

Counsel: Ms M O’Sullivan and Ms S Hendricks

Attorney: Ms D Olivier of Fairbridges Wertheim Bekker

First Respondent’s legal representatives: Mr Sharuh of Sharuh Attorneys

APPEARANCES:

Counsel for the Applicant: Adv Michelle O’Sullivan SC & Adv S Hendricks

michelleos@capebar.co.za

Attorneys for the Applicant: Fairbridges Werthein Bekker

For Respondents: Mr Paul Sharuh

secretary1@sharuhlaw.co.za;

admin@sharuhlaw.co.za;

info@sharuhlaw.co.za;

paul@sharuhlaw.co.za

Attorneys for Respondents: Sharuh Attorneys