A Western Cape High Court judge has granted an urgent interim interdict preventing further development of a luxury residential estate on the scenic Botmaskop mountain slopes above Helshoogte at Stellenbosch.

According to GroundUp, the interdict relates to part A of an application brought by the Stellenbosch Interest Group (SIG) of concerned citizens. It will remain in place pending the hearing of part B, which is a full review of the environmental authorisation granted by the Western Cape’s Department of Environmental Affairs & Development Planning (DEADP) in February 2021 for the planned 77-unit Fijnbosch Residential Estate.

The owner of the property is Botmaskop Fynbos Estate, which is one of 32 respondents to oppose the application. None of the buyers or owners of erven on the estate opposed it.

In her 52-page judgment, Judge Melanie Holderness noted that only roadworks and a reservoir had been built on the property and no dwellings had been constructed.

Summarising the evidence, Holderness noted that a developer had bought the 30.7-hectare farm in 2003 for R3.135m. In November 2003, DEADP granted the developer environmental authorisation to construct a small mountain resort.

However, this was never built, and in April 2019 a new owner – Reset Properties – applied to modify the approval to allow construction of a residential estate instead of a resort.

Reset Properties proposed an estate of 67 units with an overall development footprint of 33 930m2, which it described as a ‘non-substantive amendment’.

DEADP disagreed, and told the developer in June 2019 that this was a change in the nature and scope of the development that had been approved in 2003. Therefore, a more rigorous part two substantive amendment application that included public participation was now required.

Notice of this new part two application was duly given to affected parties, including the SIG which then objected in October 2019.

But in October 2020, Reset Properties submitted a part one (non-substantive) amendment to change the 2003 environmental authorisation for the development of a gated residential estate.

This application did not require a public participation process, states GroundUp. This was approved by DEADP in 2021.

The SIG had said it was unaware of the 2021 environmental authorisation approval until May 2024. No interested and affected parties had been notified, the judge said.

A court hearing an interdict application does not determine the ultimate merits of the case at the interim stage, but there must be a reasonable probability that the applicant’s legal position is both valid and enforceable, Holderness noted.

‘It appears…that SIG’s contention that the failure to determine the 2020 application as a part two application rendered such procedure procedurally irregular… In the circumstances I am satisfied that … SIG enjoys reasonable prospects of success both regarding the declaratory relief and the review relief…

'The irreparable harm which SIG contends will ensue if the development is not halted is that Botmaskop will be able to build itself into an impregnable position, where the extensive residential development on the site is an accomplished fact and even if SIG (and those it represents), ultimately succeeded on the merits, it would be almost impossible to obtain an effective remedy, as this would require the demolition of the development and the rehabilitation of the site.' 

Holderness ordered that, pending determination of the second part of SIG’s application, Botmaskop and the eighth to 32 respondents were ‘interdicted and restrained from undertaking or proceeding with any construction, building or other work at Botmaskop related to the development of a residential estate’.

The judge also noted that the successful interim interdict was granted without prejudice to Botmaskop’s rights.

If the full review was unsuccessful, it could claim from the SIG any damages it could show to have suffered because of the interdict.

Full GroundUp report