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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE – GRAHAMSTOWN

Case no: 22/2011

In the matter between:

MAKANA MUNCIPALITY …....................................................First Appellant

SIDNEY WILLIAMS FITZHENRY NO …...........................Second Appellant

PENELOPE LYNN FITZHENRY NO ….................................Third Appellant

HAROLD RICHARD GLENNIE NO …................................Fourth Appellant

and

PRUDENCE JANE RUCK …............................................................Respondent

APPEAL JUDGMENT (FULL BENCH)

D. VAN ZYL J:

1. This appeal relates to the definition of the side building line restriction contained in the Zoning Scheme Regulations (“the Regulations”) of the Makana Municipality (“the Municipality”). The issue was raised by way of review proceedings in terms of the provisions of the Promotion of Administrative Justice Act¹ (PAJA) wherein the respondent sought to set aside the decision of the Municipality to approve building plans submitted to it by the owner of erf 9455 for the construction of a block of flats thereon and that the said application be referred back to the Municipality to be considered afresh. In her notice of motion the respondent also sought to interdict the owner from continuing with the building works on the property which had already commenced by the time the application was launched. It would appear from the judgment of the Court a quo that the respondent chose not to pursue this form of relief and it was abandoned.

2. The respondent’s sole objection to the approval of the building plans was that it was in contravention of the side building line restriction contained in regulation 3.4.2 in that the Municipality failed to give consideration to the height of the roof in its calculation of the building line when it approved the plans. In placing an incorrect construction on the words “half of the height of the building” in regulation 3.4.2 the submission is that the Municipality acted ultra vires and that its decision to approve the building plans falls to be set aside. The Court a quo found upon an interpretation of regulation 3.4.2 that the word “building” therein must include the roof of the building. As a result it declared the decision of the Municipality in approving the building plans invalid and set it aside with costs. The Municipality and the Trust subsequently applied for leave to appeal the findings of the Court a quo, which application was granted.

3. The material facts are that Erf 9455, known as no. 4 and 6 Worcester Street, Grahamstown, is owned by a Trust known as the Karoo Vlakte Trust (the Trust) which is represented in the proceedings by the second to fourth appellants. This erf is a consolidation of erven 9303 and 2179. The respondent is the owner of a neighbouring erf, being the remainder of erf 2190, known as no. 2 Worcester Street. The respondent’s property is not directly adjacent to erf 9455 owned by the Trust as they are separated by what has been referred to as a passageway. The passageway was created by a public servitude registered over the respondent’s erf in favour of the Municipality.

4. The relevance of the passageway relates to the question whether or not it must be taken into account in determining the extent of the side building line. To this extent it was alleged by the Trust that it had acquired ownership of the passageway by means of acquisitive prescription in terms of the provisions of section 2 of the Prescription Act². It was accordingly submitted that if the width of the passageway is factored into the calculation of the building line, then the approval of the building plans would not, even on the interpretation given to regulation 3.4.2 by the respondent and the Court a quo, be in breach of the building line restriction. According to the measurements of the Municipality’s Building Control Officer and the Trust the passageway is 2.52 meters wide.

5. Ownership of the passageway is a secondary issue raised in the context of deciding the main issue, namely whether there has been compliance with the side building line restrictions. For the following reasons I do not intent to deal with it in this judgment: Firstly, the interpretation that must in my view to be placed on regulation 3.4.2 makes it unnecessary to do so. Secondly, it is evident that the Trust did not apply for the approval of the building plans on the basis that the passageway forms part of erf 9455, and that as a consequence, the Municipality did not give any consideration thereto in its decision to approve the building plans. Thirdly, the Trust’s claim to ownership of the passageway is disputed. It is alleged by the Municipality in its answering affidavit that the passageway is a “public street” as defined in the Regulations and that ownership thereof consequently vests in it by virtue of the provisions of the Land Use Planning Ordinance, alternatively, the Townships Ordinance³. The respondent in her founding papers similarly contended that the passageway forms part of her property and that she had since initiated steps for its use to revert back to her. As stated by Harms JA in National Director of Public Prosecutions v Zuma⁴, ‘Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities.’ The person or entity in whom the right of ownership of the passageway vests is accordingly in my view not an issue which should be determined in these proceedings.

6. There are essentially two issues to be considered in this appeal. It is whether the Municipality’s application of regulation 3.4.2 in calculating the side building line is correct, and if not, whether the decision of the Municipality to approve the building plans submitted by the Trust should be set aside. A further argument was advanced on behalf of the Trust at the hearing of the matter based on the wording of section 7(1) of the National Building Regulations and Building Standard Act (“the Act”)⁵. This section authorizes a local authority to approve a recommendation by a Building Control Officer relating to inter alia building plans if it is “satisfied” that the application complies with the applicable legal requirements⁶. It was submitted that the section introduces a subjective element into the decision making process in that it requires the decision maker to form an opinion that the applicable laws have been complied with. On the facts of the present matter this does not mean that the Municipality’s interpretation of regulation 3.4.2 must necessarily be correct. The Municipality, so it was argued, interpreted the said regulation in a reasonable manner and on the basis of a longstanding practice, and that in doing so it acted rationally.

7. There is in my view no merit in this argument. Section 7(1)(a) requires that the decision-maker must be satisfied that the relevant statutory requirements have been met. In the context of the present matter the section requires the Municipality to be satisfied that the building plans comply with the building line restrictions laid down in regulation 3.4.2. The fact of its satisfaction is a jurisdictional fact or precondition for the exercise by the Municipality of the power to approve the building plans. That is however not
   
   the end of the matter. The Municipality must also show that its subjective opinion which it formed and on which it relied upon for exercising its power to grant approval was based on reasonable grounds. ‘And if he is subjectively satisfied, this view is one which is susceptible to review if his conclusion was, objectively speaking, unreasonable.’⁷ If the Municipality is found to have placed an incorrect interpretation on regulation 3.4.2, its own erroneous view of the meaning and the application thereof cannot constitute reasonable grounds for being satisfied that there was compliance with the necessary legal requirements. On the contrary, it would render the decision invalid and liable to be set aside on review.

8. Proceeding then to deal with the aforesaid two issues, it is common cause that the building plans in question relate to the construction of a three storey block of flats for residential purposes and that the application by the Trust for the approval of the building plans was made and was considered by the Municipality in terms of the Regulations. Provision is made in regulation 3.4 for the approval of the construction of flats for residential purposes. It restricts the erection of a building to within certain building lines which includes a side building line. A building line is defined in the Regulations as ‘the line delimiting the area measured from the boundary of a land unit, or from a setback, if any, within which no building or the structure except a boundary fence may be erected.’⁸

9. It is further common cause that in calculating the side building line the Municipality excluded the height of the roof therefrom and determined it solely on the basis of the height of the individual storeys of the building. Calculated on this basis the Municipality took the height of the building for purposes of the side building line to be 8.16 meters. This required a side building line of 4,08 meters. The approved line was 4.2 meters. According to the Building Control Officer of the Municipality the actual measurement of the side building line exceeds this measurement as it is 4.21 meters. The Trust in turn measured the actual building line to be 4.45 meters. As stated earlier, the respondent’s contention is that the calculation of the side building line should have been done on the basis of the total height of the building which would include the roof. Consequently, as the approved height of the building inclusive of the roof is 11,123 meters⁹, the required side building line should on the respondents reading of regulation 3.4.2 have been 5,561 meters, and not 4.2 meters as approved by the Municipality.

10. It is accepted for purposes of this appeal that the provisions of regulation 3.4.2 of the Regulations were applicable to the application by the Trust for the approval of the building plans for the development of erf 9455. The Respondent’s case was that the Regulations of which regulation 3.4 forms part of are one of the “applicable” laws referred to in section 7(1) of the Act. It would appear from the judgment of the Court a quo that it was accepted that the Regulations were issued in terms of section 17 of the Act. This section authorizes the relevant Minister to make regulations, to be known as National Building Regulations, regarding a number of matters relating to the erection of buildings in the area of jurisdiction of local authorities. As counsel for the Municipality quite correctly pointed out in his heads of argument, it would appear from a reading of the Regulations that they were promulgated in terms of the Land Use Planning Ordinance¹⁰ and not the Act. Whether or not the Regulations or the said Ordinance constitute an “applicable law” for purposes of section 7(1) of the Act was not raised in or considered by the Court a quo¹¹. It was alleged by the respondent in her founding affidavit and accepted by the parties in both the Court a quo and in this Court that the Regulations in question were valid and were to be regarded as applicable to the building plans submitted by the Trust to the Municipality for its approval.

11. Proceeding then from that premise, the respondents’ case is that erf 9455 is zoned as “general residential”, and that any approval for the development thereof must comply with the provisions of regulation 3.4. The primary use of properties zoned a “general residential” is “flats”. Consent uses include “dwelling house, group houses, town house, public housing, professional usage, residential building.” The relevant portion of regulation 3.4 for purposes of this appeal is paragraph 2 thereof. It reads as follows:

‘Land use restrictions:

Floor factor: at most 1,0

Coverage: at most 40%

Height: at most three storeys

No building or any portion thereof except boundary walls and fences shall be erected on a site within the following building line restrictions:

Street building line: at least 8m

Side building line: at least 4m or half the height of the building, whichever is the greater, subject to Regulation 3.4.3 (a).

Rear building line: 4,5m

Parking: 1,25 parking bays per flat; of which 25% shall be clearly demarcated and properly indicated by means of a notice board to the satisfaction of the Council for the exclusive use of visitors (refer Regulation 4.12.1).’

12. Regulation 3.4.3 referred to in the restriction relating to the side building line deals with the approval for the erection of an out-building which encroaches into a side building line. It authorizes a local council to approve the erection of such an outbuilding but subject to inter alia the following:

‘i. Compliance with a street building line;

2. Such out-building not exceeding a height of one storey;

3. No doors or windows being permitted in any wall of such out-building which fronts onto the side boundary concerned, …’

13. The respective parties each contended for a different meaning of the words “half the height of the building” in regulation 3.4.2. The construction given to the words “height of the building” by the Municipality, and the manner in which it applied the said regulation in considering applications for the approvals of building plans relating to the construction of flats, is to determine height with reference to the manner in which the height restriction which regulation 3.4.2 places upon a building consisting of flats is to be determined, ie. in terms of the height of the individual storeys which the building consists of. A “storey” is defined in regulation 1 as ‘a single level of a building, excluding a basement, which does not exceed a height of 4m measured from finished floor level to finished floor or to the ceiling in the case of the top storey.’

14. In applying this method the height of the roof is not taken into account in calculating the height of the building as it is, according to the Municipality, expressly excluded from the definition of “storey” in regulation 1. The respondent’s submission on the other hand is that the construction placed upon the said words by the Municipality makes the word “building” therein redundant. The said word, so it was argued, must be given its ordinary meaning, namely a structure with a roof and that there does not exist any need to incorporate the provisions relating to height into the restrictions relating to the side building line. To do so, it was submitted, would mean that the word “building” is given a meaning which is artificial and contrary to the definition thereof.

15. The Court a quo chose to adopt the approach contended for by the respondent, and held that the disputed phrase should be interpreted with reference to the ordinary and natural meaning of the word “building” as opposed to, what was referred to as a “strained” view, that height is to be determined in terms of a “storey”. In other words, it must not be given a meaning which is inconsistent with the usual meaning of the said word namely “a structure with a roof.” To this extent the Court a quo had regard to the dictionary meaning of the word “building”¹². This, it was held, is consistent with the wide definition of what constitutes a “building” in section 1 of the Act. A similarly worded definition is also contained in regulation 1 of the Regulations. Section 1 reads as follows:

‘building includes –

(a) any other structure, whether of a temporary or permanent nature and irrespective of the materials used in the erection thereof, erected or used for or in connection with-

(i) the accommodation or convenience of human beings or animals;

(ii) the manufacture, processing, storage, display or sale of any goods;

3. the rendering of any service;

4. the destruction or treatment of refuse or other waste materials;

5. the cultivation or growing of any plant or crop;

(b) any wall, swimming bath, swimming pool, reservoir or bridge or any other structure connected therewith;

(c) any fuel pump or any tank used in connection therewith;

(d) any part of a building, including a building as defined in paragraph (a), (b) or (c);

(e) any facilities or system, or part or portion thereof, within or outside but incidental to a building, for the provision of a water supply, drainage, sewerage, stormwater disposal, electricity supply or other similar service in respect of the building;’

16. It is trite that the purpose of statutory interpretation is to ascertain and give effect to the intention of the legislature as expressed in the Act under consideration¹³. To this extent, and as a point of entrance or departure, the ordinary or natural meaning of a word or phrase is to be considered in ascertaining the intention of the legislature. The simple reason for this is that the medium used by the legislature to express its intention is by way of the written word. The truth however is that a word or phrase can very seldom be considered in isolation. The Act is to be read as a whole. The advantage of reading an enactment as a whole is that it enables the Court generally to recognize that a particular word or phrase may in its context as part of the Act have a meaning that may or may not correspond with the grammatical or ordinary meaning thereof¹⁴. While the starting point may therefore be to first look at the grammatical meaning of the enactment in isolation, ‘… the task remains of ascertaining the particular meaning and sense of the language intended in the context of the statute under consideration.’¹⁵ As correctly stated by du Plessis¹⁶, this is ‘… but another way of stating that the ordinary meaning of the various linguistic constituents of an enactment must be determined with proper reference to all other structurally relevant elements of such an enactment.’¹⁷ The task of ascertaining the intention of the legislature is therefore not limited to a purely literal interpretation, but is undertaken by way of a process of interpretation whereby the Court will inform itself with reference to the language used, contextual considerations such as the purpose of an enactment¹⁸, and a consideration of the Act as a whole.

17. I agree with counsel for the appellants that to confine the task of interpreting the phrase “half the height of the building” in regulation 3.4.2 to a simple determination of the ordinary meaning of the word “building” therein, and with reference to what is defined in the Act or the Regulations as forming part of a building for purposes of the Act, is on the facts of the present matter an unduly narrow approach to adopt. The word “building” in the disputed phrase must be read in the context in which it is used in regulation 3.4.2 and the purpose which it serves therein. It is used in the context of serving a particular purpose, namely the determination of height as a yardstick to measure the distance between the building and the boundary of a land unit. It accordingly has a specific application. By contrast, on a reading of the definition part of the Act and the Regulations relating to the word “building”, it has a more general application. Its primary purpose is to regulate which structures and constituent parts thereof fall to be regulated by the provisions of the Act and any regulations to be issued in terms thereof. In other words, it is not primarily intended to be used in a technical sense, that is as a standard to determine or establish compliance with specifications or restrictions as laid down in the regulations and directives as contemplated in section 17 of the Act.

18. Further, the word “building” must be construed against the background of its place in regulation 3.4.2 and the surrounding words. It forms part of the provisions relating to “Land use restrictions”. In addition, it is a constituent part of a phrase wherein it is linked to the word “height”. The latter word is given meaning within the same paragraph of regulation 3.4 wherein it is stated to be measured in storeys. A “storey” is in turn defined in the regulations and its dimensions are specified and capable of determination. The word “height” where it is used in the context of the height restriction in regulation 3.4.2 is quite obviously to be read as a reference to the height of the building. That much is clear from a reading of for instance regulation 3.7 where the very same restriction is referred to as the “building height”.

19. Another important consideration in the construction of the phrase “height of the building” in regulation 3.4.2 is the purpose of the determination of a side building line. As acknowledged by the respondent in her founding affidavit, the offset determined by the side building line establishes a degree of privacy between two neighbouring erven. That is the primary purpose of the side building line. It is not to provide a limit to the height of the building as was also contended by the respondent, and accordingly to prevent ‘buildings with variable heights populating a neighbourhood to the detriment of the uniform and orderly development contemplated by the Act’ as concluded by the Court a quo.

20. Otherwise than in the case of properties zoned for commercial purposes, the height of residential properties are not limited to the actual height of the building but rather in terms of storeys. As in the case of a property zoned as general residential, the height of a single residential property is limited in terms of storeys (“at most two storeys”). The side building line is in turn not determined according to height, but rather in relation to the size of what is referred to as the “frontage” of the erf. I agree with counsel for the Municipality that two things emerge from this. The first is that the actual height of the residential building is of no concern, and secondly, that the primary concern is the distance from the neighbouring property so as to ensure a measure of privacy. The result of this is that the regulations themselves envisages that residential areas will be populated by buildings of variable height.

21. That the purpose of a side building line is rather aimed at ensuring privacy is also made clear from regulation 3.4 itself. As stated earlier, in paragraph 3.4.3 thereof it allows a local council to approve an outbuilding to encroach into the side building line, provided that there is compliance with the street building line (frontage), that the height does not exceed one storey, and importantly, that no doors or windows front onto the side boundary concerned. These are all quite clearly considerations which relate to ensuring some measure of privacy between neighbouring erven. It is not the roof of a residential property that creates a concern in this regard, but rather the habitable part thereof which is defined in storeys. This is also consistent with what is contained in the rest of the regulations. As opposed to residential properties where the side building line is flexible, in all the other non residential zones such as business and industrial, the building line is either zero or is fixed. Quite obviously the same considerations relating to privacy do not arise in respect of the latter properties and there is consequently no need for a flexible side building line.

22. The phrase “half the height of the building” in regulation 3.4.2 must accordingly in my view be given a meaning which is consistent with its context and the purpose sought to be achieved by providing for a flexible side building line in the case of properties zoned for residential purposes. To the extent that it may be suggested that it is ambiguous in the sense that it does not correspond with the ordinary meaning of the word “building” therein, there are on an application of the rules or principles of interpretation two considerations which militate against the construction contended for by the respondent. The first is that the Court should not place a construction on an enactment that will interfere, or adversely affect the rights of a person. In the instant matter the restriction in the regulations relating to a side building line places a limitation on the right of the Trust as the owner of a property to the full enjoyment and use thereof¹⁹. It should accordingly in the case of reasonable doubt or ambiguity be construed so as to not interfere with or prejudice private rights any more than may be necessary.

23. A second consideration is that having regard to the primary purpose of the side building line in the case of residential properties referred to earlier, there does not appear to be any obvious benefit to the owner of an adjacent erf if the roof of a residential building is to be included in the height of the building in determining the side building line. On a balance, the construction placed on regulation 3.4.2 by the respondent is likely to be more adverse to the rights of the Trust as the owner of the erf than it is beneficent to the respondent. Except for a bold statement to that effect, it is not clear to what extent the addition of a further meter and a half to the building line would effect or add to the privacy of the respondent. In this regard the existence of the passageway between the two properties is not without significance, an aspect to which I shall return to hereinunder.

24. I accordingly conclude that the restriction in regulation 3.4.2 relating to the side building line must be construed according to the construction which the Municipality placed thereon in its approval of the building plans submitted to it by the Trust. Turning then to deal with the second issue raised, both counsel for the Trust and the Municipality argued that should it be found that the Municipality placed an incorrect construction on regulation 3.4.2 and that its decision to approve the building plans submitted by the Trust was as a consequence irregular, the Court a quo should not, in the exercise of its discretion, have granted the respondent an order declaring the said decision invalid. In dealing with this issue and the arguments advanced for and against it, I shall accordingly assume for purposes of this judgment that the construction placed on regulation 3.4.2 by the Municipality was wrong and that the respondent has succeeded in establishing an illegality as contended.

25. The Court a quo held that the principle of legality requires that an invalid administrative decision be set aside²⁰. The appellants submitted with reliance on a number of reported decisions²¹ that it is an established principle that not all administrative errors will be visited with nullity, particularly where the error does not cause prejudice of any significance to an applicant seeking to review it, and where instead, to do so would result in significant prejudice to third parties. The respondent’s argument on the other hand was that once illegality has been established, the Court in judicial review proceedings must grant a remedy which gives effect to that finding, and with reliance on the decision in Bengwenyama Minerals v Genorah Resources²², it was submitted that alternative remedies will usually only be appropriate ‘… in the context of third parties having altered their position on the basis that the administrative action was valid and would suffer prejudice if the administrative action is set aside…’²³ The appellants in the present proceedings, so it was argued, had failed to allege and establish on the papers anything in support of the submission that an order declaring the decision of the Municipality invalid will have a prejudicial impact on other property owners or developers whose building plans were approved on the same basis as that of the Trust.

26. Section 8 of PAJA empowers a Court in proceedings for judicial review to grant “any order which is just and equitable”, including the orders specified in that section. It confers on a Court, what has been referred to as a “generous” jurisdiction²⁴. It is accepted that the Court exercises a discretion and that it may grant or refuse to grant a remedy. The discretion to refuse a remedy arises from the acknowledgment that there are circumstances where despite the fact that invalidity can, or can potentially be established, the Court will not intervene and quash the administrative act in question. Rules governing standing and the time limits in PAJA for bringing applications for judicial review may prevent a person from establishing the invalidity of the administrative act in question. In addition, despite a finding of invalidity, the Court concerned may thereafter in the exercise of its discretion refuse to grant a remedy. The refusal to grant a remedy means that the “invalid” decision remains effective and is accepted as if it is valid.

27. The reason for refusing to grant a remedy is the recognition that the consequences of doing so may on occasion make it inappropriate. This arises from the fact that if illegality is established, and once the Court is prepared to grant a remedy, whether it is a declaratory order or any other order confirming invalidity, the administrative act in question will be regarded as void from its inception and retrospectively nullified in the sense that it will be regarded as incapable of having produced legal effects²⁵. This may create difficulties and unfairness for individuals who have relied upon the administrative decision or to a public authority which has dealt with the implementation of legislation or regulations in a certain manner, or has taken decisions on the basis of invalid regulations, as the case may be. In the present matter the decision of the Municipality to approve the building plans will be regarded as non-existent with the result that the application by the Trust for the approval of the said plans will have to be reconsidered by the Municipality in accordance with the law.

28. What Froneman J in the Bengwenyama Minerals case emphasised with reference to the decision in Eskom Holdings Ltd and Another v New Reclamation Group (Pty) Ltd²⁶, is that the fundamental importance of the principle of legality as a constitutional imperative must be recognized when a reviewing Court exercises its discretion in terms of section 8 of PAJA. Any order that does not give effect to a finding of illegality must as a consequence be capable of being justified in the circumstances of the particular case before it. Froneman J explains it as follows:

‘The apparent rigour of declaring conduct in conflict with the Constitution and PAJA unlawful is ameliorated in both the Constitution and PAJA by providing for a just and equitable remedy in its wake. I do not think that it is wise to attempt to lay down inflexible rules in determining a just and equitable remedy following upon a declaration of unlawful administrative action. The rule of law must never be relinquished, but the circumstances of each case must be examined in order to determine whether factual certainty requires some amelioration of legality and, if so, to what extent. The approach taken will depend on the kind of challenge presented – direct or collateral; the interests involved, and the extent or materiality of the breach of the constitutional right to just administrative action in each particular case.’²⁷

29. Justification may arise from the consideration that an injustice may result from the setting aside of an invalid administrative act and the retrospective effect of such an order. In Oude Kraal Estate (Pty) Ltd v City of Cape Town and Others²⁸ the Court acknowledge this by stating that the ‘… substantive validity or invalidity of an administrative act will seldom have relevance in isolation of the consequences that it said to have produced – the validity of the administrative act might be relevant in relation to some consequences, or even in relation to some persons, and not in relation to others – and for that reason it will generally be inappropriate for a court to pronounce by way of declaration upon the validity or invalidity of such an act in isolation of particular consequences that are said to have been produced.’²⁹ It is evident that much will depend upon a balancing of all the relevant circumstances of the particular case. In Millenium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province and Others³⁰ it was stated that section 8 of PAJA requires an order that is just and equitable and that ‘This guideline involves a process of striking a balance between the applicant’s interests, on the one hand, and the interests of the respondents, on the other. It is impermissible for the court to confine itself, as the court below did, to the interests of the one side only.’³¹

30. A challenge to a decision which is of general application may have a wide impact on a wide range of interests and persons. Other decisions may have a more direct and limited impact. No reason exists to restrict the consideration of prejudice which may arise from the setting aside of an invalid administrative act to the wider public interest, as it would place on unnecessary restriction on the discretion of the Court. While it may potentially also effect other owners and developers of property within the Makana Municipality, the consequences of retrospective nullity of the decision of the Municipality in the instant case to approve the building plans would impact directly on the Trust. By the time the respondent launched the application to review the decision of the Municipality at the end of September 2010, the construction of the building in accordance with the approved plan had been ongoing since June 2010 and had, according to the Trust, in its answering affidavit reached construction of the third floor.

31. I may add that we were informed at the hearing of the appeal by counsel for the Trust that the building had since been completed. This is irrelevant for the purposes of this appeal and is disregarded³². I am not convinced that the respondent, after learning in May 2010 about the approval of the plans for the building of the flats, a project of which she was aware of since 2009, and quite clearly did not approve of, acted with the required haste and diligence expected in the circumstances. However, although not without relevance, whether or not the respondent is to blame for the failure to act earlier or whether some blame must be attributed to the appellants in that regard, is a consideration that is of lesser importance on the facts of the present case. The fact is that the decision of the Municipality to approve the building plans had been acted upon by the time the application was launched and the building was at an advanced stage of completion. The respondent’s decision not to first proceed with an application for an interim interdict also did not assist, as it allowed the Trust to continue to act upon the approval of the building plans as it was entitled to do until the decision of the Municipality was reviewed and set aside some two months after the launching of the application.

32. There is nothing to suggest that the Municipality had applied the provisions of regulation 3.4.2 any differently in the past and that the Trust was not bona fide by applying for the approval of the building plans on the basis that the height of the roof was to be excluded from the calculation of the side building line. The obvious financial prejudice which the Trust would suffer if the decision of the Municipality is declared a nullity and set aside must be weighed against the possible prejudice to the respondent if it is not. As stated earlier, the respondent has not shown the extent to which the failure of the Municipality to include the roof of the building in its calculation of the side building line would effect her privacy or the value of her property. Being a three storey building consisting of flats it must be accepted as a matter of common sense that notwithstanding the existence of the side building line, at least some of the residential units on the upper floor(s) will overlook the respondent’s property. Another equally important consideration in deciding the issue is the existence of the passageway between two properties. The practical effect thereof is that the distance between the respondent’s property and that of the Trust is extended by a further 2.5 meters. In the absence of any factual allegations that may assist in a determination of the actual prejudice, if any, which the respondent may suffer due to the irregular implementation of the building line restriction, it must be accepted that the width of the passageway would alleviate any prejudice which may exist.

33. For these reasons the appeal should in my view be upheld and the order of the Court a quo be substituted with an order dismissing the application with costs, which costs should include the reserved costs of 21 October 2010.

34. In the result I propose that the following order be made:

(1) The appeal is upheld with costs.

(2) The order of the Court below is set aside and the following order is substituted therefore:

“The application is dismissed with costs, such costs to include the reserved costs of 21 October 2010 and the costs of two counsel where and when incurred”.

________________________________

D. VAN ZYL

JUDGE OF THE HIGH COURT

Makaula J : I agree.

________________________________

M. MAKAULA

JUDGE OF THE HIGH COURT

Griffiths J : I agree.

_______________________________

R. GRIFFITHS

JUDGE OF THE HIGH COURT

Matter heard on : 8 August 2011

Matter delivered on : 6 February 2012

Counsel for 1^st Appellant : Adv T.M.G. Euijen

Instructed by : Gray Moodliar

19 Raleigh Street

Central

PORT ELIZABETH

Counsel for 2^nd to 4^th Appellants : Adv B. Ford SC

Instructed by : Rushmere Noach Inc

5 Ascot Park

Conyngham Road

Greenacres

PORT ELIZABETH

Counsel for Respondent : Adv T.J.M. Paterson SC

Instructed by : Whitesides Attorneys

53 African Street

GRAHAMSTOWN

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