No relief from “flabby” City Council

Our view of the city

One hopes that if you ever get into a legal dispute that not only the law, but also the enforcers of the law will come to your aid and that justice will prevail. But this isn’t always the case, as the law is very complicated, and often it is about how much money and time you have to fight it, as to whether you will feel that the law was on your side. We are involved in a fight that has been going for 17 years (with no end in sight) with the law and feel severely let down by the City of Cape Town (“This city works for you“) who we expected to uphold the very laws that they created.

In 1992 land high on the slopes of Devils Peak, that had belonged to the SABC, was going to be developed and during the process of subdividing the erven, certain restrictions were created and made law, not only for area now known as High Cape, but also the extension of Pinoak Road where our house had been the last house on the street for many years. A City of Cape Town Ministerial Representative stood on our balcony and designed strict height restrictions for the surrounding area, as well as footprint controls which determined how much of each property could be covered in concrete. The High Cape was built as a development complex, while the properties in Pinoak Road were sold off as individual stands. This is where our trouble started.

Line-of-sight plans (1993)

In 1996, as the homes started popping up on the 17 plots that made up the extension of Pinoak Road, I noticed that something didn’t look right with the concrete pillars the builders were pouring on our neighbouring property. They were very close to our boundary line and very high. I immediately contacted the City of Cape Town’s Building Inspectors to enquire as to whether this was legal or not, and after a site visit was told that everything was fine and it was implied that they knew what they were talking about and that I obviously didn’t. If that gentleman was still alive today I’d have pleasure at sticking my middle finger up at him! In our opinions, (which have subsequently been proven in every court in the land) it was obviously NOT legal and we continued to insist as such.

A black spot on the map

Our case has been a real pain-in-the-ass for the City of Cape Town (like a haemorrhoid you’ve had for 17 years) because we were eventually advised by a senior legal mind of the city to sue the CTCC and our neighbour together because although our neighbours building plans had been approved by the CTCC, those plans contravened the law.

7.5m to the top (ex trees)

Our neighbour was building a ‘deck’ (at 5.5m above the ground) standing on pillars, with a 2m raw concrete wall on top of that right on our boundary. This ‘deck’ also has grass and tree boxes and these trees have grown a further 4 or 5 meters over and above the height of the wall over the years. This means we have an unsightly 10-meter plus structure, which has been judged illegal, obstructing our views of the Cape Flats and the West Coast, devaluing our property and causing years of distress.

In 1997 the CTCC issued our neighbour with a demolition order that gave her 30-days to rectify the situation, but she made use of the law to contest and stall and cause this issue to be delayed for a further 3 years.

Judge Dennis Davis

After much chit-chat at meetings, on-site, at the council and in legal offices, we eventually went to High Court and won our case in May 2001. Judge Dennis Davis (of television fame) found in our favour and concluded that 1) our neighbour’s building plans be set aside as she was fully aware that they contravened not only the height restrictions but also the total permitted footprint and 2) “Insofar as costs is concerned the questions arose as to whether first respondent (Municipality of the City of Cape Town) should pay costs. I would be tempted to make an order, if I could, that first respondent should not only pay the costs but the costs of the entire reconstruction of any building that has to be undertaken as far as second respondent (our neighbour) is concerned. That, however, is not within the power of this Court. Accordingly given the fact that first respondent has chosen to abide the decision of the Court, costs must be paid by the second respondent.“

Portion of deck to be removed

What makes this really sneaky is that another house in the street was forced to lower their roof by about 90cm as they had exceeded the legal height restriction, and our neighbour was party to the complaint, thereby indicating that she knew full well that her own building was going to exceed the 1992 restrictions.

Naturally, the High Court ruling was appealed and in May 2002, the Supreme Court of Appeal in Bloemfontein again ruled in our favour 5-0.

Behind that wall lies a view

In 2003 this case was once again referred to the Magistrate’s Court where an attempt was made by our neighbour to change the restrictions of the erf, but this was once again unsuccessful and in July of that year it was ordered that the ‘deck’ should be cut back to fit within the approved envelope. We did allow a concession that the main building would not have to be altered, even though this too exceeded the height and width restrictions as if it was changed the house would’ve only been left with one legal room.

In 2005 another demolition order was issued but our neighbour changed legal representatives and now in 2013 we are still no closer to achieving a solution. Madness.

Earlier this year the CTCC called a meeting of officials and the city’s top legal minds on our balcony. When I reminded them of the length of time this dispute has dragged on and that I was 24 when it all started, I was told that it would probably take another 10 years to find a solution. Is 27 years acceptable? Surely laws are created to avoid such lengthy cases?

Living in the shadow of the wall

People who have been involved in this case have retired, they’ve died from natural and unnatural causes, changed portfolios and even just plain forgotten about it while we sit every day with the reminder that in actual fact, the city just doesn’t care. We won’t back down and allow it to be swept under the carpet otherwise all the time spent and the money paid out will have been for nothing, and our neighbour will get off scot free.

In his 2001 ruling Judge Davis commented on our approach of expecting the CTCC to look after our rights saying, “…the Council was built only on bureaucratic flab rather than administrative muscle…” and we couldn’t agree more!

This is a case that will inevitably be passed down from my mother to me, but here’s hoping that my boys will not have to be wading through correspondence about this after I am gone.