South Africa: 'Final' Battle Over Oudekraal Development Rights Heads for Cape High Court

Opening salvoes will be fired in the Cape High Court tomorrow in what could be the "final push" in the war over the proposed development of Oudekraal, arguably the most valuable piece of natural real estate on the peninsula still in private hands.

Three authorities - the City of Cape Town, SA Heritage Resources Agency and SA National Parks - are asking the court to overturn township development rights approved for the 44-hectare "Portion 7" of the former Oudekraal Farm, adjoining Camps Bay, by the then administrator of the Cape in 1957.

The application is being opposed by the owner, property company Oudekraal Estates headed by wealthy businessman Kasper "Kassie" Wiehahn.

Three other respondents - the provincial minister of environmental affairs and development planning, the registrar of deeds and the surveyor general - are not contesting the court action.

According to property valuators, Portion 7 is worth about R570 million if development rights are confirmed, and about R20m if they are not.

The property is part of the undeveloped western slopes of Table Mountain below the Twelve Apostles, and has extremely high conservation and aesthetic value.

It is also of deep cultural and religious significance to the city's Muslim community and contains 53 graves and three kramats (shrines honouring particularly holy practitioners of the faith).

The property has been earmarked for development since 1957. The legality of the township approval granted in that year is the subject of the court action.

Portion 7 is one of five land parcels (one a commonage) that make up the remainder of Oudekraal Farm bought by Wiehahn's father, Theodorus, from a deceased estate in 1968.

Wiehahn's efforts to confirm his development rights on Portion 7 have been blocked by the courts.

After losing an application in the Cape High Court in 2002, Oudekraal Estates' appeal to the Supreme Court of Appeal (SCA) in Bloemfontein in 2004 was also dismissed with costs.

The SCA found that the presence of Muslim graves and kramats should have been taken in to account by the then administrator when approving the township layout in 1957

This was because, even before the constitution came into effect after the 1994 elections, it was an offence in terms of common law to desecrate a grave. The SCA ruled that the administrator had not considered the graves and his approval was thus invalid.

However, it also found that the then Cape Metropolitan Council - now incorporated into the City of Cape Town - had not been entitled to refuse to approve the engineering services plan for the proposed development that Oudekraal Properties submitted in 1996.

Even though the administrator's original approval had been invalid, the council had been obliged to act as though it was valid until successfully challenged and set aside by a court, the SCA said.

However, this finding did not validate Wiehahn's appeal.

"More graves probably lie as yet undiscovered. The whole of Portion 7 represents a cultural landscape and an area of religious significance to Muslims," say lawyers for the City of Cape Town and SA National Parks.

In a letter that was part of the court record, the Cape Mazaar Society said it had tried for years to discuss the protection of graves at Oude-kraal with Wiehahn and his father, "but to no avail".

In their heads of argument, lawyers for the city and SA National Parks said Wiehahn himself had acknowledged that any application for sub-division of Portion 7 for a township was "doomed to failure".

Wiehahn had alleged in papers that the applicants were trying to use the court action to drive down the price that would be payable on expropriation.

The lawyers said Oudekraal Estates' argument was that, because the authorities had delayed bringing a review application to challenge the administrator's decision, it had been prejudiced by not being able to apply for new township development rights.

This, according to the law-yers, would have been granted "in the racist and insensitive times of the past". But this was a "cynical" argument and did not constitute prejudice as accepted by the courts.

In their heads of argument, Wiehahn's lawyers said they had not been able to find any legal precedent for a review application being upheld in respect of a decision taken 50 years ago, "or indeed any period remotely approaching that".

"International legal history, therefore, suggests this is a most ambitious and exceptional application ...

"Upholding applications like the current one will have the effect of subverting the confidence with which the public can be expected to treat information in the deeds registries and will undermine the very basis of the system."

They suggested that the city should have instituted review proceedings in 1996 when it had obtained senior counsel's opinion that the administrator had acted beyond his powers.

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