BOCKRA, together with two other parties – one being a property owner and resident of the Bo-Kaap, and the other an intervening party, Heritage Western Cape – brought an application challenging the approval of a development proposal made by Buitengracht Properties (Pty) Ltd (a developer), pursuant to the City of Cape Town's Municipal Planning By-Law 2015 (MPBL). The applicants also sought a declaratory order prohibiting development without the necessary permits being granted in terms of s27(18) of the Heritage Act (25 of 1999).
The applicants argued that the Bo-Kaap is, by virtue of its cultural and historical significance, a heritage site which ought to be preserved, that further development would impose on the aesthetic and cultural sanctity of the space, and that development would also be contrary to the objectives of contemporary urban planning in as much as it would result in traffic congestion and undermine social cohesion by obstructing the thoroughfare between the enclave and the CBD.
The respondents argued that due process and all relevant policy had been observed, that the development site is a Mixed Use Subzone 3 (MU3) which allows for the development of business premises, flats and parking garages amongst other facilities, that care had been taken to ensure the preservation of the character of the surrounding space and buildings, and that all objections had been considered and building plans amended accordingly. In rebuttal to the applicant's submissions that the development would have a negative effect on traffic and social cohesion between the Bo-Kaap and the CBD, the respondents also submitted a findings report, compiled by Kantey & Templer, setting out the impact of development on traffic and surrounding amenities.
The judgment is noteworthy for a number of reasons; it highlights the complexity of balancing heritage considerations against other, equally important, socio-economic considerations and demonstrates the careful exercise of judicial deference and respect for the separation of powers.
Le Grange J remarked that "…resistance to the gentrification of Bo-Kaap having regard its historical significance can never be understated…" but "…where the law entrusts a functionary with a discretion it means just that: the law gives recognition to the evaluation made by the functionary to whom the discretion is entrusted, and it is not open to the court to second- guess his/her evaluation [other] than to ensure that the decisionmaker has performed the function with which it was entrusted…".
Following the decision of Le Grange J, there has been residual tension between developers and residents. More recently, ongoing litigation between BOCKRA and developers in the Western Cape High Court has once again brought to the fore the delicate balance required when weighing up considerations of heritage preservation and development.
In May 2018, residents of the Bo-Kaap unapologetically united in protest against the imminent development of a twelve storey, seventyunit apartment block on land owned by a developer. The residents of the Bo-Kaap allegedly took to the main entryway of the recently declared national heritage site in attempts to obstruct entry of a crane that was to be used in the construction of the apartment block, threatened the developer's employees and destroyed equipment stored at the construction site. An interdict was brought by the developer, who had apparently invited community engagement prior to commencement of construction. The Bo- Kaap residents, however, expressed dissatisfaction with the developer's process and approach to development and remained determined to preserve the integrity and make-up of the historic reserve.
On 28 March, the City Council approved the Bo-Kaap area's inclusion in the Heritage Protection Overlay Zone (HPOZ). In addition, the National Minister for Arts and Culture, Nathi Mthetwa, officially declared 19 areas in the Bo-Kaap as heritage sites on 30 April. In consequence, in terms of the protections afforded by the heritage status, development in the Bo-Kaap, whilst not being prohibited, will be more rigidly regulated. Developers will be required to comply with rules over and above the base zoning rules of the land and to ensure that all structures complement the historic buildings and surrounds.
The battle for the Bo-Kaap has prompted vigorous debate as to the value of development in contrast to heritage preservation. Unfortunately, it seems that the issues brought to the forefront as a result of this engagement have resulted in more of a ping-pong match between differing moral and economic perspectives rather than constructive debate. This has perpetuated the false belief that the two ends are mutually destructive and incongruent, rather than being mutually beneficial.
