Oudekraal owner Kassie Wiehahn has lost his fourth court case in his attempt to use development rights granted in 1957 to build luxury housing on his mountainside property below the Twelve Apostles in Cape Town.
In 2007, the high court in Cape Town set these old development rights aside as unlawful because they had been given "in criminal disregard" for the existence of Muslim graves and kramats on the land.
Wiehahn appealed against the high court decision, saying there had been an unreasonable delay by the three authorities - the City of Cape Town, the SA Heritage Resources Agency and SA National Parks - in bringing the court action to have the development rights set aside.
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The high court found in 2007 that there had been an unreasonable delay by the authorities, but it condoned the delay and set aside the development rights.
Wiehahn argued that the court had been wrong to condone the delay.
He said the "delay rule" in law would validate the unlawful administrative decision that had given him development rights.
But on Thursday the Supreme Court of Appeal upheld the high court's decision to condone the delay, and dismissed Wiehahn's case.
In his judgment, Judge Mahomed Navsa said: "It is true that the degree of delay in this case is unprecedented. The other circumstances are, however, equally unique. The ecology of the area is unequalled.
"Moreover, the entire area is regarded as sacred by a formerly marginalised section of South African society."
The appeal court said it was Wiehahn's practice to invest in land for the long term and to develop it later.
This carried a risk of changed market conditions, planning norms, and social and political changes.
There was no proof Wiehahn had laid out any substantial costs between acquiring the land in the 1960s and wanting to develop it in 1996, nor was Oudekraal valueless without development rights.
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