Below is a partial typed copy of the judgment on the case 8640/23:
Please download the full judgment: JUDGMENT: 00206B0D1F0D240821132606.pdf
Also here you can read the CBCRA's response to the judgment as well as to the City of Cape Town's open letter:
IN THE HIGHT COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 8640/23
THE CAMPS BAY & CLIFTON RATEPAYERS' ASSOCIATION
1st Applicant
MARY PENELOPE JOAN LLOYD
2nd Applicant
v
CAMPS BAY BEACH HOTEL (PTY) LTD
1st Respondent
THE CITY OF CAPE TOWN
2nd Respondent
THE EXECUTIVE MAYOR OF THE CITY OF CAPE TOWN
3rd Respondent
THE REGISTRAR OF DEEDS, CAPE TOWN
4th Respondent
THE WESTERN CAPE PROVINCIAL MINISTER OF ENVIRONMENTAL AFFAIRS
5th Respondent
THE MINISTER OF RURAL DEVELOPMENT AND LAND REFORM
6th Respondent
MAS SAM HOLDING (PTY) LTD
7th Respondent
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
JUDGMENT DELIVERED ON THIS 21st DAY OF AUGUST 2024
____________________________________________________________
FORTUIN, J:
A. INTRODUCTION
[1] This is an application to review and set aside several decisions of the second respondent (the City) and the third respondent ("the Mayor"). The seventh respondent, Mas Sam Holding (Pty) Ltd, bought the site, which is at the centre of this application, from the first respondent, Camps Bay Beach Hotel (Pty) Ltd.
[2] The application had its genesis in January 2023. The impugned decisions collectively permit the construction of a five-storey, 98-bedroom hotel ("the Hotel") on the site at the corner of the Fairway Avenue and Victoria Road, Camps Bay and running through from the Fairway Avenue to Van Kamps Street, on what were previously erven 2542 and 258 Camps Bay. These erven are now renumbered under the consolidated title as erf 3349 Camps Bay ("the consolidated erf").
[3] The demolition of the previous buildings on the erven commenced in January 2023 and construction of the new building was underway at the hearing of this matter. The previous building on the same erf was also a hotel.
[4] The application is twofold. Firstly, the application to review the decisions by the city, and secondly, the applicants also brought a constitutional challenge to certain legislative provisions.
B. THE PARTIES
[5] The parties to this dispute is the Camps Bay and Clifton Ratepayers Association (CBCRA), the first applicant. This is a voluntary association, which has as one of its objectives the safeguarding of the property rights and the associated interests of its members, who are property owners in the above-mentioned suburbs of Camps Bay and Clifton. On the first applicant's own version it has for many years played a 'watchdog role' in respect of monitoring compliance with, and enforcement of the legislative provisions that regulate building developments in the residential suburbs of Camps Bay and Clifton. The focus, on their version, is due to the enormous impact of building developments that do not respect the area's particular characteristics, and the impact it may have on its members' interests, in terms of the loss of enjoyment of their own properties, loss of amenities and, pertinently, loss of value of their own individual properties as a result of the above. The first applicant's standing to litigate on behalf of its members in respect of their property interests is common cause.
[6] The second applicant, Ms. Lloyd, resides at 12 Van Kamp Street, Camps Bay, and address which is in close proximity to the proposed development. Ms. Lloyd was notified of, and was an objector to the proposed development. Her standing in this review is challenged on the basis that she did not appeal the Municipal Planning Tribunal ("MPT") decision and has accordingly not exhausted internal remedies, as required by section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
[7] The first respondent is Camps Bay Beach Hotel (Pty) Ltd, who is the registered owner of erf 3349, Camps Bay. The second respondent is the City of Cape Town and has local government jurisdiction over the neighbourhood of Camps Bay, which includes the area in which erf 3349 is situate. The third respondent is the Executive Mayor of the City of Cape Town, and is the appeal authority in respect of all planning decisions taken y the City's MPT in terms of section 51 of Spatial Planning and Land Use Management Act 16 of 2013 ("SPLUMA"), read with section 114(3) of the Planning By-Law. The fourth respondent is the Registrar of Deeds, Cape Town. The fifth respondent is the Western Cape Provincial Minister of Environmental Affairs, who is the competent authority tasked with granting or refusing environmental authorisations pursuant to the Provisions of NEMA. The sixth respondent is the Minister of Rural and Land Development and Land Reform, who is responsible fo the administration of SPLUMA. The seventh respondent is MAS SAM (PTY) LTD, who purchased the property on 2 March 2023 for an amount of two hundred and thirty million rand (R230 000 000), and took over the construction activities.
C. RELEVANT LEGISLATION
[8] For ease of refrence I will quote the relevant provisions of sextion 6 and 7 of PAJA upfront as it will becoe relevant in deciding this application.
"Section 6(2):
...
(f) the action itself – [...]
(ii) is not rationality connected to -
(aa) the purpose with which it was taken;
(bb) the purpose of the empowerig provision;
(cc) the information before the admininstrator; or
(dd) the reasons given for it by the administrator."
"Section 7
(1) Any proceedings for judicial review in terms of section 6 (1) must be instituted without unreasonable delay and not later than 180 days after the date––
(a) subject to subsection (2) (c), on which any proceedings instituted n terms of internal remedies as contemplated in subsection (2) (a)have been concluded; or
(b) where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.
... / to be continued reading on downloading the full judgment.
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