City of Cape Town v Michels and Others (22715/2023) [2025] ZAWCHC 159; [2025] 3 All SA 95 (WCC) (28 March 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Western Cape High Court, Cape Town South Africa: Western Cape High Court, Cape Town You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2025 >> [2025] ZAWCHC 159 | Noteup | LawCite sino index ## City of Cape Town v Michels and Others (22715/2023) [2025] ZAWCHC 159; [2025] 3 All SA 95 (WCC) (28 March 2025) City of Cape Town v Michels and Others (22715/2023) [2025] ZAWCHC 159; [2025] 3 All SA 95 (WCC) (28 March 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAWCHC/Data/2025_159.html sino date 28 March 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy FLYNOTES: MUNICIPALITY – Zoning – Land use contraventions – Unauthorized alterations to properties – Zoned for single residential use – Construction of additional structures and conversion into boarding houses – Use not permitted under present zoning – Inspections confirmed multiple contraventions – Alterations unlawful and not in compliance with approved plans – By-law provides for investigations and subsequent enforcement steps – City demonstrated importance of enforcement – Application granted. IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) REPORTABLE Case No: 22715/2023 In the matter between: THE CITY OF CAPE TOWN Applicant and JAN PAUL MICHELS First Respondent ABSA HOME LOANS GUARANTEE COMPANY (RF) (PTY) LTD Second Respondent NEDBANK LIMITED Third Respondent SB GUARANTEE COMPANY (RF) (PTY) LTD Fourth Respondent FIRSTRAND MORTGAGE COMPANY (RF) (PTY) LTD Fifth Respondent Heard:           25 March 2025 Judgment:    28 March 2025 JUDGMENT Handed down by email on 28 March 2025 The date of the judgment is 28 March 2025 1.            The first respondent owns the following immovable properties in the Milnerton area in Cape Town, which form the subject matter of this application: 1.1       Erf 8[…] Milnerton, more commonly known as 1[…] Erica Way, Milnerton, in extent 935 square metres and held under deed of transfer T13266/2020 (“the Erica Property”). 1.2       Erf 3[…] Milnerton, more commonly known as 1[…] Algoa Road, Milnerton, in extent 991 square metres and held under deed of transfer T53817/2019 (“the Algoa Property”). 1.3       Erf 3[…]2 Milnerton, more commonly known as […] Ceres Road, Milnerton, in extent 991 square metres and held under deed of transfer T5477/2020 (“the Ceres Property”). 1.4       Erf 2[…] Milnerton, more commonly known as […] Heather Road, Milnerton, in extent 991 square metres and held under deed of transfer T4774/2020 (“the Heather Property”). 2.            When referred to collectively, these four properties will be referred to as “the Properties”. 3.            The Properties are zoned single residential zoning 1: conventional housing: SR1 (“SR1”). This means that the primary use of the Properties is as a residential dwelling by a single family. Certain additional uses of the Properties are possible with the consent of the City of Cape Town (“the City”). 4.            Between December 2021 and March 2022, the City received numerous complaints from the Milnerton Central Rate Payers’ Association (“the MCRPA”) and surrounding residents alleging that: 4.1.       Unauthorised additions/alterations were being carried out at the Properties. 4.2.       The purpose of these additions and alterations was to utilise each of the Properties as boarding houses. 4.3.       The Properties were being used as boarding houses. 5.            A boarding house is defined in section 1 of Schedule 3 to the Cape Town Municipal Planning By-Law of 2015 (“the By-Law”), as follows: “ ‘ boarding house ’ means a building where lodging is provided, and may incorporate cooking, dining and communal facilities for the use of lodgers, together with such outbuildings as are normally used therewith; and includes a building in which rooms are rented for residential purposes, youth hostel, backpackers’ lodge, guest house, home for the aged, handicapped or orphaned and residential club; but does not include a hotel, dwelling house, second dwelling, third dwelling or group house;” 6.            A series of inspections at the Properties were conducted by City officials which revealed numerous contraventions of the National Building Regulations and Building Standards Act 103 of 1977 (“the Act”), the By-Law, and the Development Management Scheme (“the DMS”) which is Schedule 3 to the By-Law. 7.            The building works alleged by the City to be unlawful which were carried out by the first respondent can be categorised broadly as: 7.1.       the construction of new/additional structures on each of the Properties without any approved building plans ; and/or 7.2.       the addition to and alteration of the existing structures on the Properties (either internally or externally) contrary to the existing approved building plans in relation to each of the Properties. 8.            It is the City’s contention that these additions and alterations have been carried out by the first respondent in order to utilise each of the Properties as boarding houses with as many as possible separate and self-contained units within each property. 9.            In the main application, the City seeks relief in respect of the building works, addition and alterations on the Properties which it contends are unlawful (“the main application”), as follows: 9.1.       Declaring certain identified additions and alterations at the Properties unlawful. 9.2.       Directing the first respondent to submit a series of applications in terms of the By-Law for, inter alia, the imposition of administrative penalties and the regularisation of contraventions, within stipulated time frames. 9.3.       Interdicting and restraining the first respondent, or any person or entity under the control, or on behalf, of the first respondent, from unlawfully altering any immovable property owned by the first respondent in the future. 9.4.       Directing the first respondent to grant officials of the City access to his immovable properties in future in order to monitor compliance with the order granted by this court in the main application. 9.5.       Entitling the City to supplement its papers in future in order to seek demolition and restoration orders in the event of the first respondent failing to comply with any order granted by this Court. 9.6.       Entitling the City to make application declaring the first respondent in contempt of court in the event of him failing to comply with any order granted by this Court. 9.7.       As a result of the facts giving rise to the Main application, costs on a punitive scale. 10.         The first respondent launched a counter-application for judicial review, to which he subsequently added terse averments as to a constitutional challenge in his supplementary founding affidavit, although no relief in this regard was sought in the notice of counter-application. This is explained in some detail below. Postponement 11.         The matter was set down on 19 February 2025 before me. It was postponed to 25 March 2025 at the request of the first respondent after an opposed hearing in the circumstances set out below. 12.         On 18 March 2025, the first respondent’s attorney sent an email to my registrar which reads as follows: “ We refer to the above and confirm that pursuant to the previous postponement and the subsequent receipt of the order of this Honorable Court, regarding the further conduct of this matter. We have informed our client and established that he had a flight out of the country hastily for, among others, a medical emergency. We anticipated his return before now but despite several contact and attempts to get civil, we were unable to do so. We have previously advised our opponents of the difficulties in settling the Replying Affidavit, as required by the Court and also in bringing the Application for Leave to Appeal in joinder application related to this matter. The purpose of this correspondence is to take this Honorable Court to our confidence of such an inability to do so. We have taken the liberty of copying our Opponent in this Correspondence and we have previously intimated them of the need to do so in a separate correspondence.” 13.         I requested my registrar to respond as follows, which she did on 20 March 2025: “ Kantor AJ has requested me to inform you that any issues of the nature of those contained in the email below, if they are to be sought to be relied upon, must be raised in the proper form at the hearing of the above matter on 25 March 2025.” 14.         At the hearing of the matter on 25 March 2025, Mr Sharuh, who appeared for the first respondent and is the author of the above email, requested what he termed a ‘reprieve’ of two to three weeks (effectively a further postponement of the matter). 15.         My ruling on the day was as follows: “ 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. I will deal with the reasons for this decision should the need arise in due course.” 16.         The reasons for the ruling are set out below. 17.         Despite the aforesaid email from my registrar, no application for a postponement supported by an affidavit was filed. Nor was any documentation in any respect made available to the court. While that is not an absolute requirement for a postponement, in order to rely on facts to justify a postponement they need to be placed before the court in a proper form, which is usually in the form of an affidavit. Where the other party opposes the application and does not accept averments of fact from the Bar, an affidavit will ordinarily be required. 18. The Constitutional Court held as follows in National Police Service Union and Others v Minister of Safety and Security and Others 2000 (4) SA 1110 (CC) at paragraph 4: “ The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the Court. Such postponement will not be granted unless this Court is satisfied that it is in the interests of justice to do so. In this respect the applicant must show that there is good cause for the postponement. In order to satisfy the Court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that give rise to the application. Whether a postponement will be granted is therefore in the discretion of the Court and cannot be secured by mere agreement between the parties. In exercising that discretion, this Court will take into account a number of factors, including (but not limited to): whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed.” 19.         In Madnitsky v Rosenberg 1949 (2) SA 392 (A) it was held as follows at 399 (a dictum which has been cited and followed in numerous matters, including in the above-referred decision of the Constitutional Court): “ No doubt a court should be slow to refuse to grant a postponement where the true reason for a party’s non-preparedness has been fully explained, where his unreadiness to proceed is not due to delaying tactics, and where justice demands that he should have further time for the purpose of presenting his case. In the present case, however, it cannot be said that those requisites were satisfied and, in all the circumstances, I am not prepared to hold that the trial Judge did not exercise his discretion judicially.” 20.         In the context of the postponement sought in this matter, the key questions are whether the true reason for the first respondent’s non-preparedness has been fully explained, where the unreadiness to proceed is not due to delaying tactics, and where justice demands that he should have further time for the purpose of presenting his case. 21.         A chronology of some of the events in the litigation of this matter will be set out and thereafter the basis for the postponement will be considered. 22.         Litigation chronology: 22.1. The main application was issued on 12 December 2023 and served on the first respondent on 18 and 19 December 2023. 22.2. The notice of opposition was served on 16 February 2024. 22.3. On 20 February 2024 the matter was postponed by agreement by order of this court, per Thulare J (“the Thulare Order”), for hearing on the opposed motion roll on 11 June 2024. 22.4. The first respondent’s answering papers in the main application were due on 26 April 2024 in terms of the Thulare Order. 22.5. An informal mediation was held on 12 March 2024. 22.6.       No answering papers were delivered (due, in accordance with the Thulare Order, by 26 April 2024). 22.7. On 7 May 2024, the City informed the first respondent’s attorneys in writing that their instructions were for the matter to proceed on 11 June 2024. 22.8. On 17 May 2024, the City delivered a supplementary founding affidavit dealing with the first respondent’s applications for administrative penalties (more of which below). 22.9. No answering papers had been delivered by the first respondent. 22.10. On 5 June 2024, the matter was removed from the roll for 11 June 2024. 22.11. On 5 June 2024, the City brought a chamber book application to compel the delivery of the answering papers of the first respondent, which was granted on 21 June 2024 and the order served on the first respondent on 28 June 2024. The answering affidavit was due in terms thereof on 12 July 2024. 22.12. No answering affidavit was delivered by that date. 22.13. This was the second time that a court order in respect of the delivery of the answering papers had not been complied with by the first respondent. 22.14. Despite this, on 15 August 2024 the first respondent served a counter application. The City served its notice of opposition on 16 August 2024. 22.15. On 19 August 2024, the first respondent delivered a conditional answering affidavit. 22.16. On 20 August 2024, Erasmus J granted an order postponing the main application and the counter-application for hearing on 17 October 2024 (the Erasmus Order). 22.17. On 27 August 2024, the first respondent served a notice in terms of Rule 7(1) on the City’s attorneys. 22.18. On 29 August 2024, the City delivered its replying affidavit in the main application on the date it was due in terms of the Erasmus Order and its response to the Rule 7(1) notice, and provided an electronic link to the Rule 53 Record. The first respondent communicated that it could not access the link and on 2 September 2024 a new link was sent. On 11 September 2024 the first respondent communicated to the City that the link was inaccessible. The City delivered a flash drive containing the Rule 53 Record to the first respondent on 12 September 2024. 22.19. The first respondent’s supplementary affidavit in the counter application was due on 12 September 2024 in terms of the Erasmus Order. No affidavit was delivered by then. 22.20. On 13 September 2024 first respondent alleged that it could still not access the Rule 53 Record. On the same day the City’s attorneys delivered a hard copy to the first respondent’s attorneys. 22.21. On 23 September 2024, being the due date for it in terms of the Erasmus Order of 20 August 2024, the City delivered its answering affidavit in the counter-application. 22.22. On 30 September 2024, the first respondent’s replying affidavit in the counter-application was due but was not delivered. 22.23. On 8 October 2024, the first respondent delivered an amended notice of motion and supplementary founding affidavit in the counter-application. 22.24. On 16 October 2024, the day before the opposed hearing date, the first respondent filed notices in terms of Rule 10A and 16A, together with an application for the Executive Mayor of the City of Cape Town and the Premier of the Western Cape (“the Premier”) to be joined. These were not served on the Premier. 22.25. On 17 October 2024, the matter was crowded out due to a shortage of Judges. The City served an irregular step notice in terms of Rule 30 in respect of the attempted joinder of the Premier. 22.26. On 23 October 2024, the City requested the Acting Judge President to allocate a date for the hearing of the joinder and Rule 30 applications. The first respondent objected to this. The joinder application was served on the Premier. 22.27. On 24 October 2024, the Premier delivered its notice of opposition to the joinder application. 22.28. On 28 October 2024, the Acting Judge President granted an order setting the rule 30 application down for hearing on 20 November 2024 with a timetable for the delivery of further papers therein. 22.29. On 4 November 2024, the first respondent’s answering affidavit in the Rule 30 application was due. It was not delivered by that date. 22.30. On 15 November 2024, the City delivered its supplementary answering affidavit to the first respondent’s amended notice of motion and supplementary affidavit in the counter application. 22.31. On 20 November 2024, the Rule 30 application was heard before Carolissen AJ. The application was granted, striking out the attempted joinder of the Premier and ordering a further timetable for the delivery of papers in the main application and the counter-application, including that it was postponed to be heard on 19 February 2025. 22.32. On 29 November 2025 reasons were requested for the aforesaid order. The reasons were delivered on 22 January 2025. 22.33. On 28 January 2025, an application for leave to appeal was delivered. It was argued and dismissed on 14 February 2025. 22.34. The main application and counter-application were allocated for hearing before me on 19 February 2025. At the hearing, the first respondent requested from the Bar that the main application and counter-application be stayed pending the determination of an application for leave to appeal to the Supreme Court of Appeal (“the SCA”) the order in the Rule 30 application. After this was argued and before I ruled thereon, the first respondent then scaled down its request to be that the matter postpone for a month to allow for the application for leave to appeal to the SCA to be delivered. The City (albeit very reluctantly) did not object to that if I was prepared to order as such, which I was, provided that the first respondent was ordered, as a last opportunity, to deliver its replying affidavit in the counter-application and heads of argument in both applications. The date of 25 March 2024 was arranged and the matter was postponed with the first respondent to deliver its replying affidavit and heads of argument on 12 March 2025 and 18 March 2025 respectively. 22.35. The first respondent’s application for leave to appeal to the SCA was due on 14 March 2025. No such application was delivered. The result thereof is that there is no application for leave to appeal to the SCA. By 25 March 2025, at the hearing of the matter, the application for leave to appeal had still not been delivered (although it would have been out of time by then). 23.         The aforegoing timeline presents a concerning narrative of serial infractions on the part of the first respondent in complying with the Rules of Court and even orders of this court. 24.         As mentioned, no formal application for postponement was brought, supported by any affidavit, and nor was any documentation handed up to be relied upon. Mr Sharuh stated from the Bar that the first respondent had not attended their consultation arranged for 19 February 2025, that they had had no contact from the last hearing on 19 February 2025 to 26 March 2025 and that the first respondent had boarded a flight to France on 26 February 2025. Mr Sharuh provided a copy of the boarding pass and an extract from the first respondent’s passport in this regard to the City’s attorneys, although this was not shared with the court. He referred to an email which he had sent to the City’s attorneys which recorded that the first respondent had gone overseas for a “ sudden family emergency or held reasons ” (perhaps ‘held’ was intended to be ‘health’, but with an affidavit not having been delivered, one cannot know for sure). This email, too, was not shared with the court. He had not been told anything else by the first respondent or his wife whom he had also contacted (Mr Sharuh referred to the first respondent’s ‘wife’, but I do not know whether he was married and the identity of the person. For convenience I will continue to use the term ‘wife’ in this regard). 25.         The aforesaid is what was before the court. 26.         Mr Sharuh did not know what the position was and after time in argument started resorting to speculation, even postulating to the extent that maybe the first respondent would need a curator. I impressed upon Mr Sharuh that it was wholly unsatisfactory and unacceptable that nothing had been placed before the court as to the first respondent’s medical condition, and nothing at all on any aspect in an affidavit. In response, Mr Sharuh said that if the court wants the medical information it can be given. Pregnant in that statement is that it had not yet been requested – the reason I say this is that it had not been obtained over the previous five weeks, which leads to the obvious (and rhetorical) question as to why a further two or three weeks as had been requested should be expected to make a difference. 27.         No affidavit was filed by Mr Sharuh. Nor was one obtained from the first respondent or his wife, or even a statement or an email or a text message. 28.         The effective sum total of what was before the court was that the first respondent was well enough to undertake an international flight, he was not communicating with his attorney (including for a week before travelling to Europe) and a vague, hearsay and contradictory statement that the first respondent had travelled to France because of a “ sudden family emergency or held reasons ” . Discussion (1) The request for a ‘reprieve’ 29.         As mentioned, Mr Sharuh’s request was for what he termed a ‘ reprieve’ of two to three weeks to place medical information before the court. 30. I asked him why that could reasonably be expected to make a difference bearing in mind that he and the first respondent had already had five weeks since the postponement on 19 February 2025 and the first respondent, according to Mr Sharuh, had been incommunicado since then, even though he could travel abroad (Mr Sharuh said that there are many emails from him putting pressure on his client to deal with the matter. When I asked to see them, Ms O’Sullivan, who appeared with Ms Hendricks for the City, said the City would have liked to consider them and respond thereto. I nonetheless still asked for the emails, but Mr Sharuh then decided not to hand them up). This was also four weeks since the first respondent had boarded a flight to France because of a “ sudden family emergency or held reasons ” . The fact that the first respondent could travel abroad on 26 February 2025 leads to the ineluctable inference that he had made himself incommunicado in the modern age of easy inter-continental communication. His wife, too, provided no information despite request, according to Mr Sharuh, who could give no reason but speculated that it could be because she was scared . 31.         As mentioned, Mr Sharuh provided a copy of the boarding pass and an extract from the first respondent’s passport to the City’s attorneys to show that he had boarded the flight (although the court was not so provided). One of the various problems with this is that these documents (and certainly the first respondent’s boarding pass) had to have originally emanated from him as the travelling passenger or his wife. Contact in this regard had therefore taken place in regard to the first respondent’s affairs, whether directly with him or through his wife. This brings into sharp focus how highly improbable it is that the first respondent and his wife could not provide any information. When it suited them, they had even provided travel documentation. 32.         Mr Sharuh’s request for what he termed a ‘ reprieve’ of two to three weeks was to place medical information before the court if the court wants the medical information . That should have been done, or at least attempted to be done, previously and no explanation, let alone proper explanation, whether on affidavit or otherwise, was furnished to the City and the Court as to why it was not done. Similarly, Mr Sharuh said that the reprieve would give him the opportunity to prepare a substantive application for a postponement. That is what should have been done already to the extent possible and only serves to exacerbate the situation. Similarly problematic, Mr Sharuh submitted along the lines that he could then get the medical information for the sake of progress and then we would have a basis on which to proceed. 33. Mr Sharuh’s request for a reprieve was grounded in the hope that he would be favoured with some co-operation from his client and his client’s wife in the next two to three weeks in order to get medical information, if that is what the court wants, as he put it. That last statement is per se of concern because that information plainly should have already been sought and provided at a bare minimum. 34. The content of the email of 18 March 2025 is extremely vague in numerous respects. It strikes me as an exercise in vague obfuscation. For example, it is not explained who had the medical emergency (whether the first respondent or someone else), what was wrong with that person, where he/she went, why he/she went there and why he/she could not be treated in this country. 35. Similar considerations apply to the content of the email of 5 March 2025, to the extent that it was related to the court from the Bar. 36. In my view, that state of affairs is neither satisfactory nor sufficient, a circumstance which is heavily aggravated by the fact that the first respondent had been incommunicado for five weeks already – save for when it suited him to provide copies of his boarding pass and extract from his passport, whether directly or through his wife, the court was not informed – and had flown to Europe four weeks previously. 37.         As is the nature of approaching matters in the irregular manner in which the request for a ‘reprieve’ was made, unintended consequences can emerge. In this instance, from the provision of the extract of the passport. The stamps therein, according to Ms O’Sullivan, who had seen the extract, showed that the first respondent returned to South Africa in 2020 and did not leave again until 2023. I asked Mr Sharuh to comment. He said that he did not dispute what Ms O’Sullivan had said, but that the whole passport had not been provided. The extract provided, however, I was told, contained date stamps for the aforesaid period. On what was before the court, therefore, the first respondent was in South Africa between those dates. This contradicts his averment under oath in the first sentence of paragraph 13.4 of his supplementary affidavit in the counter-application, which dealt with requests for access from August 2022 to March 2023 mentioned in paragraph 13.2 thereof, that he was not in the country in August 2022 when access to the Properties relevant to this matter was sought. That paragraph reads as follows: “ Unfortunately, due to my temporary absence from the Republic, illness and hospitalisation at relevant time, I did not respond to City’s requests for access immediately.” 38.         This is further aggravated by Mr Sharuh’s statement from the Bar that the replying affidavit in the counter-application and the founding affidavit in the application for leave to appeal to the SCA against the granting of the Rule 30 application had been prepared and were ready. Ms O’Sullivan submitted that those affidavits would consist primarily of legal argument and could be signed by Mr Sharuh (a cursory consideration of this matter reveals that her submission appears to be correct). This was not done. Mr Sharuh did not contest Ms O’Sullivan’s submission, but claimed he did not have instructions to sign and file the affidavits. That is facile, not least of all because the previous postponement on 19 February 2025 was sought purely on the basis of the application for leave to appeal being delivered – Mr Sharuh could not have argued as he did on that date without having the instruction to pursue that application. The converse is worse for the first respondent (and Mr Sharuh) because, if he did not have the instruction, the previous postponement was sought on a false premise. 39.         In any event, as incongruous as it is, and raising further problems as it does, Mr Sharuh’s statement from the Bar as to an instruction means that it could even be satisfied by a simple WhatsApp or email, even a ‘thumbs up’ in response to a request for the instruction from Mr Sharuh. Yet the first respondent was, according to Mr Sharuh, incommunicado at even this level for the whole five week period of the postponement from 19 February 2025, despite being able to board a flight and travel to Europe. 40.         Aggravating the whole situation is that Mr Sharuh did not depose to an affidavit setting out fully what had happened for the full period from 19 February 2025. In further aggravation, this was not done timeously ( National Police Service Union , at paragraph 4, quoted above) to afford the City an opportunity to deal therewith. Instead, statements were made in dribs and drabs over the course of two hours of argument for the ‘reprieve’ in a wholly unsatisfactory and unacceptable fashion. 41.         On the basis of the above alone, I considered that the ‘reprieve’ sought could not be granted in the exercise of the court’s discretion. (2) The application for leave to appeal to the SCA 42.         The issue at stake in the Rule 30 application was whether the Premier is obliged to be joined to this matter in terms of Rule 10A. Rule 10A requires the joinder of the provincial or national executive authorities responsible for the administration of the legislation at issue in the proceedings (the By-Law). The question is therefore whether the Western Cape Province is responsible for the administration of the legislation relevant to this matter (dealt with below), necessitating the joinder of the Premier. 43.         I have perused and considered the papers and judgment in the Rule 30 application, as well as the judgment in the application for leave to appeal. A most cursory consideration of section 156 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), reveals it to be plainly to the effect that the legislation in question (the By-Law) is administered, implemented and enforced by the local authority and not the province. As held by the SCA at paragraph 16 of Telkom SA SOC Ltd v Cape Town (City) and Another 2020 (1) SA 514 (SCA) , the subject of which was the very By-Law relevant to this matter (see also Cape Town City v Independent outdoor Media (Pty) Ltd and Others 2024 (1) SA 309 (CC) at paragraphs 43-45): “ In terms of s 156(1) of the Constitution a municipality has executive authority and the right to administer the local government matters listed in Part B of Schedule 4. Relevant for present purpose is municipal planning. Municipalities may make and administer by-laws for the effective administration of these matters. The by-law in issue in this case was made pursuant to that power.” 44.         In my view there can be no question that the Rule 30 application was correctly upheld and that there is no prospect of success on appeal. 45.         With the application to this court for leave to appeal having been dismissed on    14 February 2025, an application to the SCA for leave to appeal was due by 14 March 2025. It was not delivered, despite this being the reason for the postponement of the matter on 19 February 2025. The first respondent, according to Mr Sharuh, did not attend, without notice or explanation, their consultation arranged for 19 February 2025 and travelled abroad on 26 February 2025, all while remaining incommunicado for the full period from 19 February 2025 (the date of the previous postponement) to the postponed date of hearing, 25 March 2025. 46.         In the result, there is therefore no application for leave to appeal (or appeal) pending in respect of the Rule 30 application. 47.         This would even be the case were an application for condonation to be lodged, in respect of which the analysis in paragraph 11 to 15 of Panayiotou v Shoprite Checkers (Pty) Ltd and Others 2016 (3) SA 110 (GJ) is, in my view, apposite. 48.         The possibility of an application for leave to appeal to the SCA, while the time period for it had not yet run its course, was the main factor by which I was apprehended in the argument for the previous postponement on 19 February 2025. This aspect is now, for the above reasons, not a possible impediment to the matter proceeding. 49.         In any event, while, in theory and notionally, the first respondent could, should it at some stage see fit, apply for condonation of a late application for leave to appeal to the SCA, I do not think that this is a realistic prospect for at least five reasons: 49.1.       The prospects of success on appeal (crucial to an application for condonation) are extremely poor, if not non-existent. 49.2.       The reason for the non-compliance with the rules has not been properly explained, on oath or otherwise. 49.3.       Condonation without a proper explanation is notoriously difficult to obtain in the SCA. 49.4.       The recordal in Mr Sharuh’s email of 18 March 2025 is that, because of his client’s absence, there were difficulties in bringing the application for leave to appeal. Problems with this include: 49.4.1.      The explanation is very vague:  “ We have informed our client and established that he had a flight out of the country hastily for, among others, a medical emergency. ” 49.4.2.      One does not know when and how the first respondent made this communication and when and how his attorneys established that he was hastily gone. No detail is given of the medical emergency, including who was having that emergency. 49.4.3.      That email is also not consistent with his email of 5 March to the City’s attorneys (not seen by the court, but mentioned by both Mr Sharuh and Ms O’Sullivan) in which he said that the first respondent had travelled to France because of a “ sudden family emergency or held reasons ” . It is also vague. 49.4.4.      The further problem with this is that the issue at stake in the Rule 30 application is not fact based. It concerns a matter of law. The issues had been clearly delineated in the Rule 30 application, the first respondent’s application for leave to appeal to this court and the two judgments which followed therefrom. Mr Sharuh could therefore have deposed to the affidavit which was to be prepared by him in any application for leave to appeal. 49.5.       This matter cannot lie in limbo until the first respondent may bring an application for condonation to the SCA and may obtain that condonation. 50.         In my view, for these reasons, the prospect of an application for leave to appeal to the SCA is of no assistance to the first respondent. (3) The history of the litigation 51.         The following emerges from the above exposition of the timeline of the litigation: 51.1.       The first respondent did not comply with two orders of this court to deliver its answering papers in the Main application. 51.2.       The first respondent did not deliver its replying affidavit in the counter-application which was due more than three months ago, with no explanation attempted, let alone provided. 51.3.       The first respondent did not deliver its heads of argument in the Main application and the counter-application, with no explanation attempted, let alone provided. 51.4.       Every substantive document delivered by the first respondent was outside of the time periods provided for in the Uniform Rules of Court. 51.5.       Other than documents it wished to deliver (notably the founding papers and supplementary founding affidavit in the counter-application), the delivery of all other substantive documents has required an order (and sometimes more than one order) of this court (including the answering affidavit in the main application, the replying affidavit in the counter-application and the heads of argument in both applications, with the latter two documents still not having been delivered). 51.6.       There appears to be a serial and flagrant disregard of the Uniform Rules of Court and even orders of this court. 51.7.       The last-minute timing of the ill-fated attempt to join the Premier, which was so lacking in merit, indicates tactics of delay. 51.8.       So, too, do the attempts to delay the matter on 19 February 2025 and then on 25 March 2025. Conclusion 52.         For the above reasons, I am of the view that the true reason for the first respondent’s non-preparedness has not been explained at all, let alone fully, as is required, it cannot be concluded that the unreadiness to proceed is not due to delaying tactics and justice does not demand that he should have further time for the purpose of presenting his case. 53. In the premise, I declined to grant the ‘reprieve’ sought and directed that the matter proceed. My ruling in this regard in recorded in paragraph 15 above. 54.         Mr Sharuh then asked to be excused. Despite Ms O’Sullivan reminding him that a costs order is sought against him personally, he then left the court-room at approximately 12h30. 55.         The matter was then argued on the merits by the City until approximately 15h30 (a lunch break was not taken because half the court day had already been used up). ## The applicable statutory scheme The applicable statutory scheme 56.         The main application concerns the use of, building plans in respect of, structures on and zoning of the four Properties. 57.         The purpose of a zoning scheme is explained in the minority judgment of O’Regan ADCJ in Walele v City of Cape Town and Others [2008] ZACC 11 ; 2008 (6) SA 129 (CC) , as follows: “ [129] At common law, property owners have full rights (dominium) to   determine the manner in which their property is used. But these rights have for practical purposes never been unfettered. They have been limited by the common law and legislation to ensure that land ownership is regulated in a manner that is in the interest of all.  In congested urban spaces, this need for regulation is particularly acute. Zoning or town-planning schemes are one of the key ways in which the rights of property owners are limited. They often provide for the maximum height of buildings in an area. They also often limit where a building may be built on an erf and the use to which properties may be put in urban areas. These are all limitations on the right of ownership. [130] The result of a zoning scheme is thus to restrict the rights of all owners in an area. Yet zoning schemes also confer rights on owners, because owners are entitled to require that neighbouring owners comply with the applicable zoning scheme. Where an owner seeks to depart from the scheme, the rights of neighbouring owners are affected and they are entitled to be heard on the departure. Owners in the area are also entitled to be heard when land is rezoned. A zoning scheme is therefore a regulated system of give and take: it both limits the rights of ownership but also confers rights on owners to expect compliance by neighbours with the terms of the mutually applicable scheme. The result is that where an owner seeks to use his property within the terms of the zoning scheme, it cannot be said that the rights of surrounding owners are affected materially or adversely.” 58.         In Lind and Another v Trustees for the of the time being of The Indigo Trust (T3685/96) (10072/2020; 6800/2021) [2021] ZAWCHC 97 (18 May 2021) , this court explained as follows at paragraph 28: “ T he object of zoning has been described consistently in the jurisprudence and by the academic commentators as directed at the coordinated and harmonious use and development of land; cf. Johannesburg Turnbull-Jackson v Hibiscus Coast Municipality 2014 (6) SA 592 (CC) (2014 (11) BCLR 1310 ; [2014] ZACC 24 at para 6, Municipality v Gauteng Development Tribunal and Others 2010 (2) SA 552 (SCA) at para 6, Broadway Mansions (Pty) Ltd v Pretoria City Council 1955 (1) SA 517 (A) at 523B, Cape Town City and Another v Da Cruz and Another 2018 (3) SA 462 (WCC) at para 80, Da Cruz and Another v City of Cape Town and Another v City of Cape Town and Another 2017 (4) SA 117 (WCC) at para 45, Camps Bay Residents and Ratepayers Association and Others v Hartley and Others [2010] ZAWCHC 215 (16 November 2010) at para 23, Esterhuyse v Jan Jooste Family Trust 1998 (4) SA 241 (C) at 253H-I and Jeannie van Wyk, Open-space systems in urban land-use planning: invaluable assets in conserving the environment and enhancing the quality of life 2005 TSAR 256 at 260 at §4 (citing Van Wyk Planning Law (1999) 30-35).  That much has also been expressly been recognised in various legislative equivalents of the By-Law, some of which are identified in the aforementioned judgments. ” 59.         The significance of this municipal function was commented on by Rogers AJ (as he then was) in Intercape Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs and Others 2010 (5) SA 367 (WCC), in which he stated (at paragraph 105) that land use contrary to the then in force (Western Cape) Land Use Planning Ordinance 15 of 1985 (LUPO) would frustrate the very purpose of town planning: “ The purpose of town planning would, in my view, be frustrated if the State as a significant user of land were free to disregard zoning restrictions. Even if only a few pieces of land in a particular area were free to be used by the State contrary to the zoning for that area, the character of the area and the welfare of the members of the community in that area would be jeopardised and the planning objectives of the local authority (as approved by the province) frustrated.” 60.         The City is the local authority responsible for the administration, implementation and enforcement of the Building Act, the By-Law, and the DMS, including in the area in which the Properties are located. ### (1)The Act (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 (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 (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. # The impugned building works on the Properties The impugned building works on the Properties 85.         Between December 2021 and March 2022, the City received numerous complaints relating to building works at the Properties and the use of the Properties as boarding houses. 86.         The City, as the relevant local authority, is responsible for the enforcement of the Building Act and its Regulations, the By-Law and the DMS. In order to do so, upon receipt of complaints, the City is obliged ( must ) to investigate the complaints in terms of section 125(2) of the By-Law. This required that the City undertake physical inspections at the Properties. 87.         The City carried out various inspections, at times being allowed partial access to the Properties, and at other times being allowed full access to the Properties. The last inspection was a joint inspection of all four of the Properties by various officials of the City on 23 February 2023. These various inspections culminated in a series of notices being issued by the City in respect of illegalities identified by the City on each of the properties. The earliest four notices were issued on 31 January 2022 and 2 February 2022. In practice, what the identification involves is the comparison of the approved plans to what was actually built to see if there are any discrepancies and if there are any then there has been a contravention – a relatively simple and objective exercise. 88.         Subsequent to the main application having been launched, the first respondent opposed the application, but requested that the City attempt to mediate the dispute with him. The City acceded to his request and the parties attempted informal mediation. 89.         As part of these mediation attempts, the first respondent submitted a number of applications to the City which included applications for the imposition of administrative penalties and applications for rezoning, accompanied by motivations for using the Properties as boarding houses. The City, in my view correctly, contends that these amounted to concessions that the relevant building works on the Properties were unlawful and that the City was correct in its assertion that the Properties were being used as boarding houses. 90.         The City contends that each of the applications that were submitted by the first respondent were deficient and/or inaccurate and/or incomplete in several respects, predominantly because every one of the applications which were submitted failed to disclose the full extent of the additions and alterations carried out at the Properties, and the usage of the Properties with these alterations. The City further contends that in order to submit regularisation applications, the first respondent is required to submit comprehensive administrative penalty applications for each of the Property, and to pay the penalty. Absent that, the rectification of the contraventions cannot take place. This is confirmed by the analysis of the legislation above. It is the construct of the By-Law which is fundamental to the main application. I therefore agree with the contentions of the City recorded in this paragraph. 91.         The first respondent seeks to rely on the administrative penalty applications which were granted in support of his assertion that the relief that the City seeks has been rendered moot by his voluntary regularisation attempts. This is incorrect for the reasons set out in the analysis of the legislation above. 92.         Anticipating this following the mediation efforts, the City filed a supplementary founding affidavit before the first respondent filed any answering affidavit, placing evidence before the court concerning these applications and explaining, correctly, in my view, why they did not rectify the contraventions based on the construct of the By-Law articulated above. 93.         Each of the contraventions in respect of each of the Properties are addressed in the next four sections. ## Erf 8[…]:  The Erica Property Erf 8[…]:  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 m 2 . 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 22m 2 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 m 2 , 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 m 2 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 3[…] Milnerton:   the Algoa Property Erf 3[…] Milnerton:   the Algoa Property 112.      The City’s inspections of the Algoa Property revealed that: 112.1.     The existing garage had been extended to the front and to the back boundary of the property and converted into a dwelling unit. This extension contravenes the 3 metre building line setback. 112.2.     Additions were made to the back of the main dwelling, which had been separated into four separate dwelling units. 112.3.     The patio area had been enclosed and was being used as a dwelling unit. 112.4.     Internal alterations were carried out to the main dwelling. The approved plans depict a three-bedroom main dwelling, but inspections revealed a total of seven bedrooms in the main dwelling. 113.      The first respondent has submitted two applications in respect of the Algoa Property. 114.      The first is an application for an administrative penalty, in which he discloses only that he created two separate units on the property for accommodation purposes. No mention is made of the building line setback in the administrative penalty application. 115.      The second is for rezoning and a permanent departure and removal of restrictive title deed conditions, in order to allow the first respondent to use the Algoa Property as a boarding house. 116.      The building plans which accompany these applications make repeated references to proposed additions and proposed bedrooms when, in fact, as was evident during the site inspections of the property, these additions and alterations had already been carried out. The additional bedrooms already exist. This needs to be fully dealt with in the administrative penalty application in that the first respondent must disclose that he has already carried out these alterations. 117.      The applications do not address the matter of the covered patio having been converted into a dwelling unit, or the correct number of bedrooms (which were observed during the inspection). This does not align with the number of bedrooms indicated on the approved plans. 118.      The first respondent claims that the construction took place in mid-January 2023 and that he was not aware of the contravention. The difficulty for the first respondent with this assertion is that by mid-January 2023, he had already been served with several notices (in respect of this and other properties) notifying him that he was not permitted to build without prior approved building plans. 119.      For the reasons explored above, without a comprehensive and accurate application for an administrative penalty, any land use application cannot be considered, let alone approved. Until land use clearance is given, a building plan application cannot be approved. 120.      As long as it remains the case that the first respondent does not have approved building plans for the additions and alterations at the Algoa Property, those additions and alterations will remain unlawful. Furthermore, without land use approval, the current use of the Algoa Property as a boarding house is also unlawful. 121.      In my view, therefore, the City has established the various instances of unlawfulness adumbrated above in respect of the Algoa Property. ### Erf 3[…]2 Milnerton:  the Ceres Property Erf 3[…]2 Milnerton:  the Ceres Property 122.      Inspections at the Ceres Property revealed the following: 122.1.    The carport had been covered and converted into approximately 8 or 9 bedrooms. 122.2.    The patio area had been covered and was converted into 3 bedrooms. 122.3.    The existing tandem garage had been converted into 4 bedrooms. 122.4.    Internal alterations had been carried out in the main dwelling in order to create more bedrooms. 123.      The first respondent’s application for an administrative penalty in respect of the Ceres Property specifies only the contravention of converting the double garage into two (not four) habitable rooms for accommodation purposes. 124.      The first respondent substituted his application, including by submission of an amended plan that indicates fourteen marked-up additional bedrooms on the property. 125.      This is reinforced by the application for rezoning, permanent departure and amendment and suspension or deletion of restrictive title deed condition which was lodged for the Ceres Property. The stated purpose for this application is the intended operation of a boarding house. Pregnant in these applications is the concession of the numerous illegalities. 126.      However, these applications are all premised on inaccurate and incomplete administrative penalty applications. For the reasons set out above, until such time as the first respondent remedies that, the construct of the By-Law means that he is precluded from submitting any application seeking approval of the irregular building works. 127.      In my view, therefore, the City has established the various instances of unlawfulness adumbrated above in respect of the Ceres Property. ## Erf 2[…]Milnerton:   the Heather Property Erf 2 […] 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 (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 (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 (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 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 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 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. # The counter-application The counter-application 180.      The first respondent brings his counter-application in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), alternatively, the common law. 181.      The relief sought by the first respondent in the counter-application includes: 181.1.     The failure to furnish the first respondent with the complaints of the MCPRA prior to undertaking an investigation be declared irrational, unreasonable and unlawful. 181.2.     The City’s decision to investigate complaints against him without prior notice to him be declared unlawful and invalid. 181.3.     The City’s process and decision to find that he had contravened the By-Law and Regulations be declared unlawful, invalid, reviewed and set aside. 181.4.     The City’s decision to institute the main application on the basis of the complaints, investigations and findings be declared irrational, unreasonable and invalid and, accordingly, set aside. 182.      The simple answer to all of these complaints is that they are legally invalid for the reasons set out above under the main application. I will deal with them further below for the sake of completeness. 183.      The point of departure in a PAJA review is that each of the decisions that an applicant seeks to review and set aside are indeed decisions which constitute administrative action. To use the language of section 1 of PAJA, they must have direct, external legal effect. 184.      This requires that the action under consideration be final and that it creates legal obligations. It must impact directly and immediately on an individual and it must have legal consequences ( Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] ZASCA 43 ; 2005 (6) SA 313 (SCA) at paragraphs 22 to 24). At paragraph 24 the SCA held as follows: “ Administrative action is rather, in general terms, the conduct of the bureaucracy (whoever the bureaucratic functionary might be) in carrying out the daily functions of the state which necessarily involves the application of policy, usually after its translation into law, with direct and immediate consequences for individuals or groups of individuals .” [emphasis added] 185.      The City contends as follows:  a consideration of the facts of the main application makes it clear that no such decision has been taken by the City. To the contrary, the City has carried out an investigation, as it is obliged to do in terms of the relevant statutory scheme, and it has placed the outcome of that investigation before this court in order for the court to make a final determination on whether or not the first respondent has engaged in unlawful activity and, if so, what is to be done to remedy the contraventions. The first respondent has not been denied any right to respond to the allegations. Indeed, he is invited to do so by the City in its notice of motion and is entitled to do so through the mechanisms provided in the Uniform Rules of court. No action taken by the City thus far has any direct legal effect. The City is seeking an order from this court in order to ensure that the first respondent complies with the By-Law and remedies the manifest contraventions. According to the City, the steps that have been taken may be summarised as follows: 185.1.     The City received complaints that there were unlawful building works at the Properties. It did not take a decision to receive these complaints, they were simply sent to the City. 185.2.     The City is statutorily and constitutionally obliged to investigate these complaints in terms of section 125(2) of the By-Law. It is not entitled to make a decision in this regard. It must do so. 185.3.     The City has placed its findings before this court and has asked for a final determination as to the lawfulness of the first respondent’s conduct and, flowing from such a declaration, to impose binding obligations upon the first respondent. 185.4.     The decision to launch the main application is not, and cannot be, determinative of the first respondent’s rights and obligations. This is because launching the application gives rise to nothing more than the City’s right to place its case before this court. The City must still prove its case to the satisfaction of the court before it will be entitled to any relief. Equally for the first respondent, he is entitled to place his case in defence before the court. It is then for the court to determine the rights and obligations of the parties. Nothing that has final external legal effect or direct and immediate consequences came about as a result of the decision to launch the main application.  The first respondent has a full right to be heard i.e. audi alteram partem prior to any decision being taken that can finally impact upon his rights. 186.      The City contends that there is simply no decision that has been made by it that is capable of being reviewed and set aside. Similarly, the City contends, if the first respondent can establish an entitlement to proceed with a legality review, there is no decision to be reviewed as there has been no exercise of any power. The City’s officials have, to date, done nothing more than what they are statutorily required to do, and they have turned to the court to now obtain finality in the matter, utilising an enforcement mechanism which is competent in terms of the By-Law. 187.      The City therefore contends that the counter-application must fail simply because there is nothing that can be reviewed or set aside, not in terms of PAJA and not in terms of the common law. 188.      I agree with these submissions. ## Whether the review is out of time 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 substantive grounds underlying the review ### (a)Investigation of complaints without prior notice to the first respondent (a) Investigation of complaints without prior notice to the first respondent 200.      In an email from the first respondent to the City’s inspector on 9 February 2022, he confirms that they had spoken about the unlawful building works at the Erica Property telephonically and that he was submitting applications to “legalize the process”, a clear acknowledgement that it was not legal to begin with. 201.      A letter dated 5 August 2022 from the City’s previous attorneys informed the first respondent that, as a result of various complaints, the City was seeking access to the Properties in order to carry out inspections. The first respondent replied in writing on 9 August 2022 indicating that he had managed to arrange for urgent inspection of the Erica Property. 202.      In an email from the first respondent on 11 August 2022, he records that he is attempting to arrange for access to the remaining properties, namely Algoa, Ceres and Heather. He also indicates that he is attempting to legitimise the building works under discussion and that “Lebo” (referred to in the City’s affidavits as Ms Monakali) will be available to assist the City with access to the Properties in his absence. 203.      Further correspondence between the City’s erstwhile attorneys and the first respondent, dated 15 December 2022 and 19 January 2023, records the City calling for access to the Properties in order to investigate the complaints against the first respondent, and the first respondent agreeing to arrange such access and stating that he is taking steps to regularise the position. 204.      While the written complaints themselves were not furnished to the first respondent, he was aware that complaints were made and of the City’s investigation of the complaints. 205.      Insofar as the complaint of the first respondent is that he did not receive copies of the complaints sent to the City, he is not entitled to receive such complaints in terms of section 125 of the By-Law. Citizens are entitled to submit complaints anonymously. This is done for their protection. The City is only obliged to inform complainants of the outcome of the investigation and of steps, if any, which are to be taken in terms of section 125. 206.      The first respondent was aware of the fact of the complaints and the investigations and therefore this ground of review is of no merit. ### (b)Enforcement notices (b) Enforcement notices 207.      The first respondent avers that he had no knowledge of the City’s enforcement notices and that, accordingly, the main application, has been instituted without such prior notice having been properly served on him. 208.      The facts, however, in my view, show that the first respondent was aware of the City’s various enforcement notices: 208.1.     On 2 February 2022, various enforcement notices were sent to the first respondent via email, forming part of the papers. 208.2.     On 9 February 2022, after a previous telephone call between the first respondent and a City inspector in which the latter informed him about the notices, the first respondent sent an email in response. That email response was sent on the same email chain as the initial email serving the enforcement notices on him. 208.3.     That he did, in fact, see them, is evidenced by the fact that on 14 February 2022, a matter of days after the first respondent replied to the email chain containing the notices, he submitted building plans in an attempt to regularise what was raised by the City in its notices. These plans, drawn up the very day after the City’s notices were emailed to the first respondent, indicate that that he was well aware of the notices prior to 9 February 2022. 208.4.     On 21 February 2022, the City’s inspector personally attended at the Erica Property for an inspection. He was met and given access by the first respondent himself. This averment is made in the founding affidavit in the main application and, in response, the first respondent states that he “ cannot admit or deny such further details but put the Applicant to proof thereof. ” The proof is the evidence of the City’s official in the founding affidavit. 208.5.     Notices were also sent to the first respondent via WhatsApp. The first respondent does not explain that, or why, he did not receive those messages, but he received and was able to respond to subsequent messages. 208.6.     An email from the first respondent dated 11 August 2022 recorded that “ Lebo will help out during times I am unable to do so. ” As mentioned, Lebo is Ms Monakali. On 3 October 2022, enforcement notices were served on Ms Monakali. While he states that he did not receive the notices, the first respondent offers no explanation as to why he was not made aware of them, and in any event he had indicated Ms Monakali would be involved. There is also no affidavit by Ms Monakali. 208.7.     The first respondent states in his application for an administrative penalty for the Ceres Property:  “ In response to the served notice of boarding house i have appointed IKHAYA DEV Townplanners and Construction (Pty) Ltd. ” The words which I have placed in bold and underlined’ expose that the first respondent received the notice. 209.      In my view, therefore, the first respondent was aware of the notices and this ground of review is of no merit. ### (c)Adverse findings without an opportunity to be heard (c) Adverse findings without an opportunity to be heard 210.      The first respondent contends that the City made adverse findings against him without giving him an opportunity to be heard. 211.      Neither the By-Law nor the Act require notice to be given to the first respondent, prior to taking any enforcement steps. 212.      The City has conducted inspections and, on the basis of what they established at these inspections, took enforcement steps in terms of the By-Law. 213.      In the circumstances, I am of the view that there is no merit in this ground of review. ### The constitutional challenge The constitutional challenge 214.      It is axiomatic that constitutional litigation challenging the validity of legislation is litigation of the most serious and important order, a consideration which is even more apposite in the case of legislation such as the By-Law which affects a great number of persons on an everyday basis. All litigation, especially litigation of this nature, must be approached in a responsible, disciplined and correct manner. 215.      The first respondent launched a review by way of counter-application which has been dealt with already in this judgment. 216.      In its answering affidavit, the City pointed out that the first respondent had not launched any challenge in respect of the empowering legislation that gave rise to the City’s investigation into the first respondent’s unlawful conduct. 217.      What followed was paragraph 16 of a supplementary founding affidavit and a Rule 16A notice which alleged sections 125, 126 and 128 of the By-Law to be unconstitutional and invalid. The first respondent did not seek any relief to that effect in the amended notice of motion. Despite the City pointing out that no such relief was sought in the notice of motion, and that there is no application before this court which requires a determination of the constitutionality of these provisions, the first respondent did nothing to remedy that position, nor has it filed a replying affidavit. 218.      The substantive portion of paragraph 16 of the supplementary founding affidavit in the counter-application reads as follows: “ That the Honourable Court declares sections 125, 126 and 128 of the City of Cape Town Municipal Planning By-Law, 2015 as amended (By-law) unconstitutional and invalid to the extent that it empowers the City to: 16.1 Entertain complaint(s) without constructively notifying and/or affording me the opportunity to respond thereto; 16.2 Conduct investigation of alleged complaints with prior written notice to me in respect thereof; 16.3 Exercise judicial and/or quasi-judicial powers determine my guilt for alleged contravention of the City’s relevant By-Law and National Building Regulations without any prior charges and/or affording me the opportunity to plead thereto;” 219.      Nothing of any moment was presented in the founding papers in the counter-application. No replying affidavit has been delivered despite being many months overdue, but it is in any event trite that a case must be made out in the founding papers. 220.      What is of significant moment is the conspicuous absence of any attention being directed to which provisions of the Constitution were breached and why that is contended to be the case. Sections 126 and 128 of the By-Law (quoted below) in particular are fairly lengthy provisions, yet nothing is identified. 221.      In similar vein, nothing is said as to which portions of the applicable sections are to be impugned on the basis of what is stated in the aforesaid paragraph 16. 222.      It appears to me that the aforesaid paragraph 16 was a very poorly thought-out and very poorly executed after-thought with no real conviction as to the merits thereof. To borrow from the vernacular of American Football, a ‘Hail Mary’, which is a desperate, long-distance throw, typically attempted in the final seconds of a game, with a very low chance of completion, often used as a last-ditch effort in desperation to salvage a losing cause. 223.      The supplementary founding affidavit was very repetitive and was to a significant extent a cut and paste job from the founding affidavit, even including a reservation of the right to supplement in accordance with Rule 53(4) which was what was being done in that very same affidavit. 224.      No relief in respect of the constitutional challenge has in fact been sought and properly pleaded. 225.      In my view, a constitutional challenge is not properly before the court and the counter-application in this respect is to be dismissed for this reason. This sentence illustrates the fallacy of the situation:  because no relief has been sought in the notice of counter-application, there is actually nothing in that notice to specifically dismiss or grant insofar as a constitutional challenge is concerned. 226.      I might add that, while it is for the court to determine aspects such as reading in or reading down or suspension of invalidity in granting just and equitable relief, nothing has been placed before the court to assist in these respects. 227.      It is impermissible for a party to rely on a constitutional complaint that was not pleaded ( Phillips and Others v National Director of Public Prosecutions [2005] ZACC 15 ; 2006 (1) SA 505 (CC) at paragraph 39). 228. In Prince v President, Cape Law Society, and Others [2000] ZACC 28 ; 2001 (2) SA 388 (CC) it was held as follows at paragraph 22 : “ Parties who challenge the constitutionality of a provision in a statute must raise the constitutionality of the provisions sought to be challenged at the time they institute legal proceedings. In addition, a party must place before the Court information relevant to the determination of the constitutionality of the impugned provisions. Similarly, a party seeking to justify a limitation of a constitutional right must place before the Court information relevant to the issue of justification. I would emphasise that all this information must be placed before the Court of first instance. The placing of the relevant information is necessary to warn the other party of the case it will have to meet, so as [to] allow it the opportunity to present factual material and legal argument to meet that case. It is not sufficient for a party to raise the constitutionality of a statute only in the heads of argument, without laying a proper foundation for such a challenge in the papers or the pleadings. The other party must be left in no doubt as to the nature of the case it has to meet and the relief that is sought. Nor can parties hope to supplement and make their case on appeal.” 229.      The constitutional review of legislation such as the By-Law would be of wide-ranging effect and ought to be undertaken with due care, attention to detail, discipline and responsibility. 230.      In short, the constitutional review leaves much to be desired in many respects and is not properly before the court. 231.      In the premise, I consider it to be inappropriate to determine a constitutional challenge. 232.      For the sake of completeness, however, were I to consider the constitutional issue, my views would be as set out below. ## The City’s municipal planning competency 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). # The relevant provisions of the By-Law The relevant provisions of the By-Law 237.      Complaints are addressed in section 125 of the By-Law. 238.      Section 124 of the By-Law affords the City a 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.” 239.      The constitutionality of section 124 is not impugned in these proceedings.  There is therefore no challenge to the City’s authority to take enforcement measures, or its discretionary power to select an appropriate measure. This appears out of kilter, and undermines, paragraph 16 of the supplementary founding affidavit. 240.      The measures contemplated in section 124 of the By-Law include inter-alia issuing a compliance notice (in terms of section 126), or a directive (in terms of section 128), the payment of an administrative penalty (in terms of section 129) and enforcement litigation (in terms of section 131). 241.      Section 125: 241.1.     Section 125(1) provides that any person who is affected by an alleged contravention of the By-Law is entitled to request the City Manager to investigate the alleged contravention and to act in terms of the enforcement Chapter. 241.2.     Section 125(2) provides that the City “ must ” investigate the complaint. 241.3.     Section 125(3) provides that the City must inform the complainant of the outcome of the investigation and the steps to be taken in the event that the City is of the opinion that the By-Law is being contravened. 242.      There are two important aspects to note in respect of section 125: 22.1.    It confers no powers on the City other than powers of investigation and thereafter, to act in terms of the enforcement chapter. 22.2.    Section 125 does not require the City to furnish the complaint itself to an individual in the position of the first respondent (this is considered briefly below). 243.      Section 126 of the By-Law provides as follows: “ Compliance notice (1)   The City may serve a notice on an owner or other person if there are reasonable grounds for believing that the owner or other person is in contravention of this By-Law. (2)   The notice must – (a)   describe the land unit; (b)   describe the conduct constituting a contravention of this By-Law; (c)   indicate which provision of this By-Law, condition of approval or other provision the conduct contravenes; (d)   if relevant, state that the unlawful conduct constitutes an offence and indicate the penalties; (e)   instruct the owner or other person to cease the unlawful conduct and to comply with this By-Law, condition of approval or other provision immediately or within a time period determined by the City, and where relevant must specify the steps to be taken to comply; (f)     state that a failure to comply with the notice constitutes an offence and indicate the penalties; and (g)   state that, in the event of non-compliance with the notice, the City may take one or more of the following measures – (i)     if relevant, take steps contemplated in section 127 to withdraw an approval for a temporary departure or an approval granted for a limited period of time; (ii)    take steps contemplated in section 128 to issue a directive in the terms specified in the notice; (iii)   apply in terms of section 129 for the determination of an administrative penalty; (iv)   apply to a competent court for appropriate relief including the costs of the application; and (v)    institute a criminal prosecution.” 244.      Section 128 of the By-Law provides as follows: “ Directive (1)   If the City is of the opinion that an owner of other person is in contravention of this By-Law, it may serve a notice on the owner or other person – (a)   setting out the information contemplated in sections 126(2)(a)-126(2)(c); and (b)   inviting the owner or other person within a specified time to make written representations on the notice and give reasons why the City should not direct the owner or the other person within a specified time to – (i)     submit documentation including a diagram or plan to the City or appoint a professional person selected by the City to conduct an investigation and to report to the City on the nature and extent of the contravention; (ii)    demolish a building or part thereof which contravenes this By-Law and restore the building or rehabilitate the land as the case may be to a form and within the time period specified in the directive; or (iii)   address another impact of the contravention. (2)   After considering any representations and reasons submitted, and if it is satisfied that this By-Law is being contravened, the City may decide to use a directive in terms which are the same as, substantially similar to or less onerous than those contemplated in subsection 1(b). (3)   A directive must – (a)   set out the directions; (b)   include the information contemplated in section 104(2); (c)   state that a failure to comply with a duty imposed by the directive constitutes an offence and indicate the penalties; and (d)   state that instead of, or in addition to, prosecuting the owner or the other person, without further notice the City may apply to a competent court for enforcement of the directive and other appropriate relief including costs of the application. (4)   The owner or other person must comply with a directive from the effective date of decision contemplated in section 105(2).” 245.      Sections 131 and 132 of the By-Law entitle the City to approach the High Court for relief. Section 131 of the By-Law provides as follows: “ 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.” 246.      The first respondent has not sought to challenge section 131 of the By-Law, despite claiming that the City breached his rights in launching the main application. ## Certain contentions of the City in regard to the constitutional aspects 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 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. ### Anonymous complaints Anonymous complaints 252.      The City explains that there are sound reasons for permitting the anonymous submission of complaints.  The City does not have the human resources to monitor compliance throughout its area of jurisdiction at all times and is therefore dependent upon the residents of Cape Town to bring contraventions of the By-Law to its attention. This is particularly the case, given the number of properties in the area for which its building and land use inspectors are responsible. There are only six land use inspectors (including a principal land use inspector), and six building inspectors (including senior building inspectors) employed in the Blaauwberg District while the geographic spread thereof is extensive. The requests and complaints received from the public serve a legitimate and extremely important purpose. Complaints are a necessary mechanism to ensure that contraventions are identified and, as a result, for the effective enforcement of the legislative scheme. 253.      The City permits the anonymous submission of requests in terms of section 125(1) of the By-Law. According to the City, this is because it must facilitate a system in which residents are not deterred from bringing contraventions of the By-Law to its attention, due to a fear of reprisal from those against whom the complaints are made. Without the assurance to citizens that they are safe from retaliatory conduct, the City’s reporting system would be rendered ineffective. The reporting system is fundamental to the City effectively exercising its legislative mandate in relation to municipal planning and building regulations. 254.      The City contends that this reasoning is similar to the motivation for enacting the Protected Disclosures Act 26 of 2000 (“the Disclosures Act”) which provides protection for whistle-blowers in the workplace. The preamble thereto articulates the reason for its enactment as follows: “ And bearing in mind that – Neither the South African common law nor statutory law makes provision for mechanisms or procedures in terms of which employees may, without fear of reprisals, disclose information relating to suspected or alleged criminal or other irregular conduct by their employers, whether in the private or public sector; Every employer and employee has a responsibility to disclose criminal and any other irregular conduct in the workplace; Every employer has a responsibility to take all necessary steps to ensure that employees who disclose such information are protected from any reprisals as a result of such disclosure; And in order to – Create a culture which will facilitate the disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a responsible manner by providing comprehensive statutory guidelines for the disclosure of such information and protection against any reprisal as a result of such disclosures; Promote the eradication of criminal and other irregular conduct in organs of state and private bodies.” 255.      The Disclosures Act provides mechanisms through which unlawful conduct in the workplace may be reported, and it emphasises the importance of persons who make such disclosures being protected against reprisal from those implicated by their disclosures. 256.      The City demonstrated the importance of enforcement in relation to its municipal planning competency, to ensure that residents of the City adhere to the By-Law, referred to above. There is no legislation similar to the Disclosures Act in the municipal context that governs the social contract between neighbours and citizens and offers protection to those who report unlawful activity to the City, as the enforcement authority. 257.      In the premises, in my view, there is no merit in the first respondent’s complaint in this respect. ### Exercise of the City’s investigative function withoutaudiapplying Exercise of the City’s investigative function without audi applying 258.      Conversely, the protection offered to the person who has allegedly committed the contravention which is the subject of the complaint (in this case, the first respondent) is that no enforcement action flows from the receipt of the complaint. 259.      It is only after the City has independently investigated (which it must do on receipt of a complaint) and found objective prima facie evidence of a contravention of the By-Law (essentially comparing the approved plans to what is built on the ground), that the City proceeds to take one of the enforcement measures provided for in the By-Law. 260.      The City contends that the investigation itself is not administrative action, and the first respondent was not entitled to audi alteram partem at that stage. There are two distinct stages in complaints of this nature. The first is purely investigative, and it is only the second stage which is determinative of a party’s rights. In that stage the By-Law provides for audi . 261. In Chairman, Board on Tariffs and Trade and Others v Brenco Inc and Others 2001 (4) SA 511 (SCA) the SCA considered, inter alia , whether the Board on Tariffs and Trade (BTT) had violated the principles of natural justice by making recommendations to the Minister of Trade and Industry without giving the respondents access to all information at its disposal or the opportunity to respond thereto prior to the BTT making the recommendation. The SCA held, at paragraph 14, that no single set of principles for giving effect to the rules of natural justice is applicable to all investigations, official enquiries and exercises of power and emphasised the need for a flexible approach in applying the principles of natural justice. The SCA also considered the nature of BTT investigations and found that in terms of its empowering legislation, BTT performs both an investigative and determinative function. It went on to hold as follows at paragraph 29 and 30: "Whilst BTT has a duty to act fairly, it does not follow that it must discharge that duty precisely in the same respect in regard to the different functions performed by it. When BTT exercises its deliberative function, interested parties have a right to know the substance of the case that they must meet. They are entitled to an opportunity to make representations. In carrying out its investigative functions, BTT must not act vexatiously or oppressively towards those persons subject to investigation. In the context of enquiries in terms of ss 417 and 418 of the Companies Act 61 of 1973, investigatory proceedings, which have been recognised to be absolutely essential to achieve important policy objectives, are nevertheless subject to the constraint that the powers of investigation are not exercised in a vexatious, oppressive or unfair manner." 262.      The SCA held (at paragraph 42) that when BTT carried out its investigative functions, fairness did not demand that ‘ every shred of information provided to BTT should be made available to the respondents ’ but rather that the standard applicable was that they know the substance of the case they must meet before the determinative body. The SCA also dealt with the fact that BTT inspectors had obtained information from a third party, and that the information had not been given to the respondents so that they could test its correctness. On this point the Court held at paragraph 51: "There is no requirement that BTT in the investigation of a matter must inform the parties of every step that is to be taken in the investigation and permit parties to be present when the investigation is pursued by way of the verification exercise. There is no unfairness to the respondents in permitting the officials of BTT to clarify information without notice to the respondents. To hold otherwise would not only unduly hamper the exercise of the investigative powers of BTT, but would seek to transform an investigative process into an adjudicative process that is neither envisaged by the BTT Act, nor what the audi principle requires." 263. In Norvatis SA (Pty) Ltd and others v Competition Commission and Others CT22/CR/B/Jun 01, 2.7.2001 at para 54 – 55, the Competition Tribunal held as follows in relation to a similar challenge to the Competition Commission’s powers to refer a complaint to the Competition Tribunal, with reference to Brenco : “ T he Brenco decision is entirely in point in relation to the matter at hand. It is our view that the distinction drawn by the Court between an investigative and a determinative function performed by public bodies is crucial in ensuring that public bodies are not unduly restrained in their work where the exercise of their powers carries no serious or final consequences for affected parties. In the context of this application the distinction drawn by the Court between investigative and determinative administrative conduct by public bodies disposes of the applicants' case. In terms of the decision in the Brenco case the violations of natural justice alleged by the applicants against the commission can only be upheld if the complaint referral by the commission constitutes a determinative action. Our view is that it does not.” 264.      This distinction has also been recognised by the SCA in Simelane and Others NNO v Seven-Eleven Corporation SA (Pty) Ltd and Another 2003 (3) SA 64 (SCA) in which, at paragraph 17, it accepted the reasoning of the Competition Tribunal in Norvatis , and reiterated that an investigative function is not subject to review, save in cases of ill-faith, oppression, vexation or the like (which has not been established by the first respondent). 265.      It is against this backdrop that the remaining enforcement provisions of the By-Law must be understood, i.e. that prior to any enforcement steps, the City must undertake an investigation, in respect of which the first respondent is not entitled to audi alteram partem . 266.      Section 126 only allows the City to send a compliance notice to the first respondent. The City is permitted to do no more than that and, in the event of the compliance notice being ignored, as it was in this case, the City is then compelled to take one or more further steps provided for therein before any sanction can be imposed. ## The City’s enforcement options 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 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 8[…] Milnerton, situated at 1[…] 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 3 […]2 Milnerton, situated at […] 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 2 […] Milnerton, situated at […] 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 3 […] Milnerton, situated at 1 […] 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 IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) REPORTABLE Case no:   22715/2023 In the matter between: THE CITY OF CAPE TOWN Applicant and JAN PAUL MICHELS First Respondent ABSA HOME LOANS GUARANTEE COMPANY (RF) (PTY) LTD Second Respondent NEDBANK LIMITED Third Respondent SB GUARANTEE COMPANY (RF) (PTY) LTD Fourth Respondent FIRSTRAND MORTGAGE COMPANY (RF) (PTY) LTD Fifth Respondent Matter was heard on:                   25 March 2025 Judgment delivered on:               28 March 2025 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 sino noindex make_database footer start