Trustees of the Simcha Trust v Da Cruz and Others; City of Cape Town v Da Cruz and Others

The City of Cape Town approved building plans for the Four Seasons sectional title scheme allowing balconies to be built up to the boundary of an adjacent property owned by the Simcha Trust. Later, the Trust applied to extend its own building by four additional storeys up to the same boundary, which would result in parts of the new structure touching the Four Seasons’ balconies. The City initially approved the Trust’s plans, but following objections and litigation, that approval was set aside and remitted. After a renewed application process, the City again approved the Trust’s plans. Mr Da Cruz and the Four Seasons body corporate sought judicial review under PAJA, arguing that the City failed properly to consider the disqualifying factors in section 7(1)(b)(ii)(aa) of the National Building Regulations and Building Standards Act. The High Court and Full Court set aside the approval, holding that the City applied the wrong legal test. The Trust and the City appealed to the Constitutional Court.

Leave to appeal was granted in both matters, but both appeals were dismissed. The Trust and the City of Cape Town were ordered to pay the respondents’ costs, including the costs of two counsel where applicable.

The case clarifies the interpretation of section 7(1)(b)(ii)(aa) of the National Building Regulations and Building Standards Act and confirms that the legitimate expectations test applies to all statutory disqualifying factors, not only derogation in value. It reinforces the Walele approach, strengthens constitutional control over municipal building-plan approvals, and emphasises the duty of local authorities to consider the impact of developments on neighbours and the broader area.