Owner can't develop Cape Town's top land - legal blow

Religious and heritage rights trump the rights of a land-owner to make "astronomical" property returns.

This was the upshot of an appeal court judgment against the owner of what must have been potentially Cape Town's most valuable land - the long, scenic stretch under the Twelve Apostles' peaks, known as Oudekraal, on the Atlantic Seaboard.

A battle has been raging since the mid 1990s between environmentalists, Capetonians who believe the Table Mountain slopes should be preserved for all and the owner of a large parcel of land who was hoping to develop the area into South Africa's answer to the French Riviera.

Mr Kasper Wiehahn, the sole shareholder and director of the holding company of Estates, has been trying to enforce rights obtained by his father in the 1950s to develop a "township" on the land.

But the appeal court ruled against Estates, with costs.

The court noted that "without development rights" the land in question was worth R570 m and R20 m respectively. "If the development were to go ahead, the windfall for Estates would be astronomical. Evidently, even without development rights, the return on its initial investment is substantial."

But it is unlikely anyone will get to develop this land now.

The Supreme Court of Appeal Court said "the land around Table Mountain, particularly the ravines below the Twelve Apostle peaks, are of great historical, cultural and religious significance".

"From the turn of the 18^th century, the land was used as a refuge by slaves who had escaped from their masters and the colonial authorities. Among them were Muslim spiritual leaders who had led uprisings against slavery in the Dutch East Indies and who had been captured and brought to the Cape."

These leaders, the courts have heard, taught their disciples in the seclusion and safety of these ravines and in this way fostered and kept Islam alive at the Cape. "Prominent leaders who attained spiritual levels equivalent to Christian saints were buried there, these burial places being known as kramats. The kramats are visited regularly by members of the Muslim community who regard that area as sacred. A large number of Muslim graves are also to be found in these parts," said the judgment in the matter.

The court said it was "clear from Mr Wiehahn's founding affidavit in the first application in the Cape High Court that he too sought to suppress the presence and extent of the graves and kramats...notwithstanding the full glare of publicity".

"His explanation, proffered in the present litigation (at a time when it was no longer possible to conceal that fact) that he had denied the presence of the graves and kramats because he had recently undergone brain surgery and that his mental faculties must have been affected thereby, lacks credibility," it said.

The courts have also looked at the issue of the rights to develop the land into a township being handed over during the apartheid era. This was a time when "the overwhelming majority of Muslims were previously politically, socially and economically disadvantaged because of repressive and disempowering apartheid policies and were therefore unable to effectively assert and protect their interests".

The judgment said that long-term investors, who invest and develop when it is the optimum time to do so, also have the risk that things have changed since their initial purchase.

This is a "risk that all long-term property investors take, namely, that of changed market conditions, social and political changes, changing urban planning norms and strategies, shifting institutional attitudes, new scientific evidence and accumulating and incremental new found wisdom".

Earlier, the High Court concluded that the environmental importance of this land, in its undeveloped state, is "without doubt conservation-worthy, not only for South Africans but for all humanity".

"The submission on behalf of Estates, to the effect that urban development would not have the adverse effects contended for by the respondents and that legislation regulating Township development and the environment could be applied so as to address religious, cultural and environmental concerns notwithstanding, Van Reenen J concluded that the proposed development would indeed severely devalue Table Mountain as a heritage resource."

To read the full Oudekraal Estates vs The City of Cape Town, The South African Heritage Resources Agency & South African National Parks, see the related document accompanying this article.

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a "risk that all long-term property investors take, namely, that of changed market conditions, social and political changes, changing urban planning norms and strategies, shifting institutional attitudes, new scientific evidence and accumulating and incremental new found wisdom".

 

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responses to this article

Yippee Mr Wiehahn should have appreciated the fact that this land is for all Capetonians. He inherited this valuable land, and was a beneficiary of apartheid laws. If development were to go ahead, that would dramatically devalue the whole of Cape Town. That . .more stretch must be one of the most beautiful sectons in Cape Town to drive through. The rich can't win all the time. Now, the authorities should look at all those rich folk building higher and higher on Lion's Head and in Camps Bay. How did houses get so high up the mountain? . .less by Capetonian on September 04 2009, 11:19 Find this comment inappropriate? Report it

@Capetonian Get a life. The owner of the land inherited the property. To state that he is beneficiary of apartheid, is ridiculous as that would imply that every white person who inherited property is a beneficiary of apartheid. It seems to me that you are either . .more jealous ("look at all those rich folk") or alternatively, a racist. Take your pick. . .less by Frank on September 04 2009, 12:32 Find this comment inappropriate? Report it

Good call I agree with this judgement, that is a piece of paradise, and the longer it remains undeveloped, the better. No doubt one day it will get developed, some one will buy someone off and the deed will be done, but if it takes another 10 or 20 years, . .more that's 10 or 20 years of more beauty CT has to relish in. . .less by Buff on September 04 2009, 13:52 Find this comment inappropriate? Report it

@ Frank Most 2nd, 3rd generation whites are beneficiaries of apartheid period by Joe on September 04 2009, 16:27 Find this comment inappropriate? Report it

@Joe There are many 2nd and 3rd generation white males who are now under the ground as a result of "apartheid" - killed in the so called border wars in defense not only of apartheid, but in a part of the global struggle to stem communist expansionism in the . .more last few decades. Why did Cuba invest as many resources in Angola relative to its national capacity as the US did in Vietnam? Apartheid had costs borne particularly hard by a generation of young men from all sides of this bigger struggle, white, black and foreign. From all races, young men lost years of their productive young lives in military training and action, as pawns in a global and national power game, the focus of which has now shifted away from sub saharan Africa, to Afghanistan and the middle east, thank goodness. One of the politically incorrect unmentionables about the apartheid struggle was that it arguably went on long enough to allow a peaceful settlement in the end, and not an autocratic communist take over. . .less by It's not that simple on September 05 2009, 03:45 Find this comment inappropriate? Report it

This piece of land is full of crackheads and dead bodies Anyone who knows CT knows well that this piece of land is a hideout for muggers and thieves not to mention crackwhores and pimps. The city council only last month admitted that it was running out of lanmd to develop housing only to turn down a . .more application for this land to be used for that purpose. . .less by wtf on September 07 2009, 05:09 Find this comment inappropriate? Report it

Good call otherwise a pristine landscape with priceless flora and fauna would have been ruined and CT would have been the poorer for it. by M on September 07 2009, 10:35 Find this comment inappropriate? Report it

no Riviera thanks We don't want or need our own bloody "French Riviera" down here. A big selling-point for CT is that you can be in the city-centre one minute and out in nature five minutes later. More and more "development" will ultimately not prove beneficial. by Rafa on September 09 2009, 09:11 Find this comment inappropriate? Report it

Why did he wait so long? Two questions, how much rates has the owner been paying and if he could afford to keep such a huge parcel of land undeveloped for such a long time then surely he has resources to buy land elsewhere and develop. The fact that paper profits always . .more looks good sometimes suggests a hold forever policy. A compromise can be reached (in lieu of rates paid and estate duty, if any). The tragedy with life is that many speculators buy up land and allow it to lie fallow when this can be used productively and enhance peoples lives. This is where the problem lies. . .less by Muhammad I Omar on September 09 2009, 10:17 Find this comment inappropriate? Report it

Aggenee man ! I was so hopng for a nice new development. Something like "Tuscan Sunsets" or "Avignon Oudekraal" or "Rue de la Wiehahn". Come on, admit it, wouldn't that have been nice ? Especially if it was a nice security complex with an outa in the front sitting at . .more the security entrance, aimlessly looking at rich whities from Gauteng driving past to and from their fancy penthouse units. Now the develoepr will have to go and develop somewhere in the terrible suburbs, ag sies man ! . .less by Frankie on September 09 2009, 10:43 Find this comment inappropriate? Report it

development of Cape Town's mountain slopes I knew, even before I read the article, that Islam was going to put a stop to this. If this land is so precious to them, why don't they buy it from Wiehann and then exercise ownership over it. I agree that the land is just a place for vagrants and not . .more so very long ago that whole area burned because of vagrants. I say let the owner develop this land and create jobs for the thousands of people who are desperate for work. I wonder how much time do the so-called "nature lovers" spend in this specific piece of land or even cast an eye on it. And as for the race card being brought up again, that is just so bloody typical of a small-minded bigot. . .less by Plainstupid on September 11 2009, 16:03 Find this comment inappropriate? Report it

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