Introduction

[1] The first defendant, the City of Cape Town (‘the City’), raised an exception to the plaintiff’s particulars of claim on the basis that no cause of action had been disclosed. A plea on similar grounds raised by the second and third defendants was separated for determination under rule 33(4). Both the exception and plea are now before this Court for determination.

[2] The plaintiff, Really Useful Investments No 219 (Pty) Ltd, instituted action during May 2014 against the City, the Minister of Water and Environmental Affairs, as second defendant and the MEC of Local Government, Environmental Affairs and Development Planning (Western Cape), as third defendant, each in the alternative, for payment of compensation under s 34 of the Environment Conservation Act 73 of 1989 (‘the ECA’) in an amount of R16 750 846 plus VAT, alternatively R2 818 422 plus VAT, and ancillary relief.

[3] The plaintiff is the owner of 39 immovable properties in a security estate in Hout Bay, Cape Town known as the Hout Bay Beach Club, situated west of the Disa River and between Princess Street and the seashore. Development plans were approved by the City’s predecessors-in-law and the plaintiff commenced developing the properties until receipt of a directive dated 10 May 2011 made in terms of s 31A(1) and (2) of the ECA (‘the directive’). This directive was designed to protect a wetland that covered part of the properties and placed limitations on the purposes for which the plaintiff may use and/or on activities which may be undertaken on the properties. As a consequence, the plaintiff claims to have suffered actual loss in the form of the diminution in the market value of the properties which it seeks to recover under s 34 of the ECA from the City, alternatively the second defendant, further alternatively the third defendant. In the further alternative, the plaintiff claims that if it fails to provide for a claim for limitations imposed by a local authority or government institution, s 34 is unconstitutional and invalid and must be declared so in terms of s 176(1)(a) of the Constitution.