Camps Bay Ratepayers' and Residents' Association and Another v Gerda Yvonne Ada Harrison and Another

This was an application for leave to appeal against a Supreme Court of Appeal judgment dismissing a review of the City of Cape Town's approval of building plans (the "September 2007 plans") for Ms Harrison's property in Camps Bay. The legal dispute began in 2004 when Ms Harrison acquired property and sought approval for a three-storey house. Original plans were approved in February 2005, construction commenced in March 2005, and revised plans were approved in September 2005. The applicants (a ratepayers' association and a neighbouring property owner represented by attorney Mr Herman) objected to the plans on grounds that the proposed building would contravene: (a) a 3.15 metre setback requirement in title deed conditions (clause D(d)); and (b) a 10 metre height restriction in the Zoning Scheme Regulations (section 98(2)). After the September 2005 plans were set aside following an internal appeal, further revised plans were submitted and approved in September 2007. The applicants launched a review application in October 2007, which was dismissed by the High Court. They then appealed to the Supreme Court of Appeal, which also dismissed the appeal. The applicants then sought leave to appeal to the Constitutional Court.

• Whether the proper interpretation of section 7(1) of the National Building Regulations and Building Standards Act arose, particularly section 7(1)(b)(ii) relating to derogation from value of neighbouring properties
• Whether section 7(1)(b) of PAJA permits the raising of a new ground of review outside the 180-day limitation period where the original review application was brought timeously
• Whether the City's approval of plans allegedly contravening title deed condition D(d) was unlawful and whether the Supreme Court of Appeal erred in upholding that approval
• Whether the doctrine of stare decisis binds lower courts to follow decisions of higher courts
• Whether leave to appeal should be granted where constitutional issues arise

Application for leave to appeal dismissed. The first and second applicants were ordered, jointly and severally, to pay the costs of the first and second respondents incurred in the proceedings, in both instances including the costs of two counsel.

The ratio decidendi includes: (1) Whether an objection falls under section 7(1)(a) or 7(1)(b)(ii) of the Building Act depends on whether the complaint relates to non-compliance with legal restrictions or to aesthetic/value concerns beyond legal requirements. Derogation of value caused by breach of legal restrictions is a section 7(1)(a) issue. (2) The 180-day limitation in section 7(1) of PAJA runs from awareness of "the administrative action" or "the decision" being challenged, which must be determined factually. A new ground of review challenging an earlier decision cannot be introduced as of right into existing proceedings brought within time if it is raised more than 180 days after the earlier decision. (3) The doctrine of stare decisis binds lower courts to follow applicable decisions of higher tribunals on all issues forming part of the ratio decidendi, not merely obiter dicta, as a manifestation of the rule of law under section 1(c) of the Constitution. (4) A boundary wall that encloses an open area and performs primarily a boundary function is a "boundary wall" within title deed restrictions even if it incidentally retains ground, particularly municipal land outside the property.

Brand AJ made important obiter observations on: (1) The doctrine of stare decisis, emphasizing that it serves certainty, predictability, reliability, equality, uniformity and convenience in the legal system, and that courts of final jurisdiction can only depart from their own decisions when satisfied the prior decision is clearly wrong. Judges who believe a binding decision is wrong should formulate their reasons and urge the higher court to effect change, rather than engaging in "unwarranted evasion". (2) The importance of collegiality and mutual respect among judicial officers regardless of their standing in the judicial hierarchy. (3) Courts' inherent jurisdiction to regulate their own proceedings includes power to refuse review applications for unreasonable delay, which continues under the Constitution and PAJA. (4) The general rule against costs in constitutional matters aims to avoid discouraging litigants from asserting constitutional rights, but good intentions do not per se afford protection against adverse costs orders, particularly in what are essentially private property disputes. (5) Market value in property terms is understood as the price an informed buyer would pay an informed seller, with both having regard to potential risks including the risk that neighbouring properties might be developed in ways that affect views or amenity, subject to legal restrictions.

This case is significant for: (1) Clarifying that section 7(1) of the Building Act requires careful analysis of whether objections relate to legal compliance (section 7(1)(a)) or aesthetic/value concerns (section 7(1)(b)(ii)), with implications for the burden of proof; (2) Establishing that the 180-day limitation in section 7(1) of PAJA applies to the "administrative action" or "decision" being challenged, which must be determined factually - new grounds challenging earlier decisions cannot be raised as of right outside the limitation period merely because later review proceedings were brought timeously; (3) Affirming the strict application of the doctrine of stare decisis and the binding nature of Constitutional Court precedent on lower courts, as a manifestation of the rule of law; (4) Clarifying the interpretation of title deed restrictions distinguishing "boundary walls" from "structures" for setback purposes; (5) Confirming that courts may raise PAJA time limitation issues mero motu where delay is manifestly inordinate; (6) Demonstrating that constitutional litigation concerning primarily private property disputes may attract costs orders despite the general rule against costs in constitutional matters.