It is 2010 and tens of thousands of visitors descend upon Cape Town not only to watch the football but to view the glory of the city and its wondrous mountain.
To the shock of those who have come for the first time, the mountain appears to be no more then a residential theme park.
This may well have been the position had the Supreme Court of Appeal not delivered a ground-breaking judgement in the case of Oudekraal Estates (Pty) Ltd v The City of Cape Town and others — which denied developer Cassie Wiehahn a declaratory order that would have enabled him to do far more damage to the pristine beauty of the environment than an army of tahrs could ever achieve.
The case involved Wiehahn’s company, which had secured rights to develop a township on the slopes of the Twelve Apostles as early as 1957. The only step it took to develop a township was in 1996 when it applied for an approval of an engineering services plan. The city council informed the company that it could not approve the plan because its development rights had lapsed; hence the application for a declaration of rights.
Judges Craig Howie and Robert Nugent, writing for the court, focused much of their attention on the more than 20 Muslim graves and kramats that are on the land owned by the company. The judges found that the applicant had made no reference to the graves at the time of the application and, in any event, if their existence was known to officialdom at the time, it was ignored when permission was granted. The court said the presence of religious sites was a sufficiently important factor to be taken into account even at the time permission was granted in the 1950s. Hence the grant of township rights was invalid.
The question then arose as to the status of the permission that was possessed by the company. The court held that, until the approval was set aside in proceedings for judicial review, it had legal consequences and council officials could not ignore the company’s rights.
But that conclusion did not disallow the city council from challenging the application for a declaration of rights by the company on the basis that the initial grant of township rights was invalid. Expressed differently, the council was entitled to raise the invalidity of the approval as a defence.
A careful reading of the judgement does give Wiehahn some theoretical comfort in that he could demand that council officials assist as he develops his land, but only until the approval is set aside by a court. But as the Supreme Court of Appeal has already said much about the validity of the approval, Wiehahn would be wise not to get his development hopes up.
Had the judgement gone the other way, Wiehahn’s villas would have replaced much of the beauty of the mountain.
But the judgement is not only important for this reason. Much has been made in these columns about the appeals court’s partial and halting embrace of the constitutional values that must underpin all our law. A number of judgements have raised questions about the extent of the transformation of our law — beyond pure constitutional law — during the past 10 years.
This judgement is the most hopeful sign of a different approach. It is based on a reconstruction of the past; after all, it holds that even under apartheid, officialdom should have shown care and concern for a community that was at the sharp end of the racism of our past. Its effect is to empower courts to examine the legal basis of the gains enjoyed by those, the source of which was the racism of apartheid law.
Nothing could be more important to the development of our law than a legal system that must become the antithesis of that which operated 10 years ago.