where court orders do not matter
- Whenever there are public protests against failed service deliveries, the lost narrative is how negatively our actions contribute to local governments inabilities to deliver vital services
- Zoning regulations, for instance, enables municipal authorities to plan better on provisions of various utilities, from water, electricity, sewage and refuse collections, but some developers routinely ignore these regulations despite the consequences
- The regulations aside, ignoring court orders simply because we can, have even greater repercussions
- Without law and order and the respect for vital institutions like the judiciary, our society would be gearing for a wild-west kind of scenario or to a situation where the powerful take it all at the expense of the weak?
- Francis Newdigate Peter, a Sandton-based developer has rubbished the City of Cape Town’s zoning regulations while remaining defiant to a high court order
- The unfortunate thing is that Peter is not the only one. A spot-check shows that several developers across the country have continuously contravened various municipals’ by-laws with no actions being taken.
This is a narrative about those drawing more than their undue shares of social infrastructure, amenities and other social services. As the search for sustainable solutions to water scarcity intensifies, we are thus reminded of Samuel Taylor Coleridge’s 18th century poem, The Rime of the Ancient Mariner: “Water, water, every where, And all the boards did shrink; Water, water, every where, Nor any drop to drink.”
Saving water is one of the best things to do during a drought. In Cape Town, authorities put up electronic signboards on freeways to remind residents how much water is left and the need to use this commodity sparingly.
Going by the numbers on the signboards, the message is not effective. There are less than 100 days left of available water to the city. Authorities are now looking for emergency sources by the end of June after measures such as confronting big users didn’t get the desired results.
Many people must wonder if municipalities’ water plans have been good enough or been somewhat relaxed on greedy users. Drought is winning mainly because of the utter selfishness of some residents who routinely flout municipal regulations.
The shameful disregard for regulations isn’t confined to water management.
Municipalities across South Africa have for years battled with stubborn property developers who ignore zoning regulations that subsequently disrupts the planning for crises such as the current water shortage.
Take the case of Sandton-based developer, Francis Newdigate Peter (62). He would have remained unnoticed outside his circles had this journalist not taken some keen interests in a particular high court case since 2012.
In this particular case, the City of Cape Town successfully obtained a high court order instructing Peter through one of his companies, Straightprop 95 (Pty) Ltd, to demolish parts of a development that contravened various municipal by-laws, including zoning regulations.
Peter’s company had unilaterally decided to convert a ‘Zone 1 single dwelling property’ to a multiple dwelling. Zonings help municipalities plan for services to ratepayers. A single dwelling unit is meant for a single family. By converting a single dwelling property to a five-story building capable of accommodating up to 10 families, Peter increased the City’s unplanned services by nine.
Unfortunately, Peter is not alone. Many owners of single dwelling properties have built unapproved structures to get extra rental income.
According to the City’s Planning Department, the bulk of existing structures are based on rider plans. A rider plan records minor changes made to the original building plans that were submitted to a council.
For new buildings, some developers ask architects to draw two separate plans. Plan one, which fully conforms to relevant by-laws, is initially submitted to the municipality. Plan two is handed to the construction company and is only submitted to the municipals’ building departments after the development is complete as a rider plan.
Due to shortcomings in building inspectorate units, it is common for developers to build ‘unapproved’ developments and submit a rider plan to the council. There are consequences for such reckless behaviour, including mere warnings and fines.
The changes made on Peter’s building plans weren’t the minor kinds that move a door from location A to B. Not only did he convert a single dwelling into a multi-floor housing apartment, he illegally encroached on road reserves and parts of his neighbours’ properties.
Peter’s scheme in Gordon’s Bay launched on March 3, 2004, when his six-month-old company, Straightprops 95 (Pty) Ltd, acquired a 481 square meters property located at 177 Beach Road. Straightprops 95 had successfully secured a R2.5 million bond from First National Bank (FNB) to buy the property, ERF2680, for R2.525 million. The company’s own contribution to the purchase appears to have been R25,000.
For those who cared to know (for example, FNB), the new owners planned to convert the property into a guest house (Bed & Breakfast) facility.
Peter and his then co-director at the company, Yves Bernard Adrien Fontannaz, proceeded to submit new plans to the municipality that would enable them to increase the capacity of the property. The new plans, if approved, would provide additional guest rooms. [Fontannaz resigned from the company on July 7, 2010].
Also, a representative of Straightprops 95 (Pty) Ltd submitted an application for temporary ‘land use departure’ seeking permission to operate the planned guest house.
Requests for temporary departure are granted for a limited period, but not more than five years. Straightprops 95’s application for departure was based on the then existing structure and not the new plans that were still under consideration by the city’s Planning Department.
The company’s new plans didn’t conform with the city’s zoning and land use regulations. The plans sought to increase the capacity of the zoned dwelling from single to multiple. For unknown reasons, Straightprops 95’s flawed plans were secretly approved by the city just as the residents were being called up to provide comments on the application for a guest house.
Without waiting for the outcome of the temporary departure application, Straightprops 95 demolished the existing building and started working on the new building plans. Considering the age of the previous building, this journalist has been unable to establish how permission for demolition of the old building was obtained, if at all.
Despite objections from neighbours and various Gordon’s Bay community organisations, Peter who was then in full control of the company proceeded to build his new housing block as he pleased. Those who objected were threatened with multi-million-rand lawsuits.
He added two more floors to the approved three floors and invaded road reserves and part of immediate neighbours’ area.
Soon some neighbours started complaining that they were losing natural light due to the new construction. In one of the complaints filed with the city and seen by this journalist, one neighbour said the shadows of the tall building forced them to use electricity for lighting even on sunny days.
When this journalist visited the site on February 9, 2009, three floors comprising of six units and a so-called basement were ready to be occupied. Several estate agents competed to sell the units. And investors, including one chartered accountant, were biting on the marketed contentious apartments.
Images taken by Google Streetview cameras in September 2009 (seven months after this journalist’s initial visit) showed an extra floor on the soaring building. The image also showed the for-sale signs put up by estate agents and a signboard inviting potential investors to ‘Invest in their own bed & breakfast joints,’ with Peter’s contact details prominently displayed.
The local municipality, despite numerous objections, had granted approval for the temporary departure allowing Peter to operate a guest house.
However, there were anomalies on the granted permission. In the 2006 application for departure, the company’s representative, Messrs NS Terblanche & Associates Town & Regional Planners, had requested the municipality to allow it to utilise “a portion of the existing dwelling for purposes of a Guest House (6 guest bedrooms)”
Contrary to published details of that application, the permission granted in 2009 allowed the company to operate “not more than 4 guest suites … at 2 bedrooms per suite and a maximum of two guests per bedroom.”
That increased the number of initially requested bedrooms from six to eight. This would enable the single dwelling property to accommodate 16 people at any given time.
The municipality further placed a condition that there had to be one central kitchen and dining room “to service the guests and a minimum of 8 parking bays be provided on-site.” The plans that were by then at play provided kitchens for every apartment.
To fully comply with the condition on parking on a 481sqm property, Peter attempted to excavate underneath to build a basement parking – which was later turned into another dwelling, so he decided to encroach onto the road reserves on both ends of his property to create parking spaces.
When uSpiked’s team visited the municipal’s planning department at Somerset, officials couldn’t trace any publication for the adjusted number of dwellings and the number of bedrooms for the guest house application.
Despite the granted permission to operate a guest house, the new apartments were already being sold to prospective investors as independent apartments. The property wasn’t zoned for Sectional Title Scheme, so it’s not clear what proof of ownership the investors are being issued.
The latest addition to the property is advertised by estate agency, Seeff Properties, as a four-bedroom ‘Upmarket penthouse with spectacular views, secure address’ for R7.95 million.
Susan Bezuidenhout, the listed Seeff agent for this offering, said investors would get a “Sectional Title”. But the property has not been zoned to be Sectional Title Scheme. Asked what bearing the latest high court judgement would have on the advertised details and to the prospective buyers, Bezuidenhout confessed ignorance of any high court orders.
After numerous attempts by the City of Cape Town to have the developer rectify the various contraventions of its by-laws by the owner(s), the former approached the Western Cape High Court in 2012 seeking an injunction stopping the developer from further contravention and to pull down sections of his apartment block that had encroached onto the road reserves and those that were out of approved plans. This was granted on August 10, 2012.
It can be assumed Peter never intended to abide by that high court order. As the initial application was being formulated by the City’s attorneys, Peter applied for name-change for his company and the City may not have been informed of this change. When the injunction was finally granted in 2012, the first respondent against which the order was issued was Staightprops 95 (Pty) Ltd and not the renamed entity, Strainghtprops 95 Shareblock (Pty) Ltd.
Amongst the pertinent issues that Peter’s Straightprops 95 had been prohibited from doing in the 2012 high court order that he ignored included;
- permitting any person to use the property in any manner which was not permitted by the zoning of the property as ‘single residential’ in terms of the Gordon’s Bay zoning scheme regulations. [the rogue developer however continued to sell parts of the new building to multiple owners]
- carrying on any building works at the piece of land other than in accordance with plans and specifications which have been approved by the City of Cape Town in terms of the National Building Regulations and Building Standards Act 103 of 1977 … this order also prohibited Straightprops from allowing any third parties to carry on any such building
The complete 2012 High Court Order can be accessed here.
Seemingly feeling confident that with the name change, the high court order would not apply to him, Francis Newdigate Peter defied the order and continued as if nothing would touch him. It was at that very moment that he launched his own high court damages suit against all that he deemed to have been causing him loss of income. These included a community newspaper journalist, Independent Newspapers Group, a neighbour and a local civic organisation. [He later withdrew the suit without prosecuting].
He was wrong to think that the name change would shield him from liabilities. The City’s attorneys at Fairbridges Wertheim Becker did not hesitate to apply the Companies Act No. 71 of 2008, which binds directors of companies personally liable for actions of their companies. The City then proceeded to institute a contempt of court proceedings against the renamed company, Straightprops 95 Shareblock (Pty) Ltd, and its directors that by then also included Peter’s wife, Jane Rosemary Peter. The wife resigned from being a director soon after the proceedings were commenced.
The contempt of court proceedings dragged on for a few more years and after repeated postponements by Peter and companies, in March 2017, Hon J I Cloete had had enough of being shown the finger. The learned judge refused Peter’s December 2016 application for further postponement and proceeded to find that Peter and his company were in contempt of the August 2012 high court order.
She also found that Peter and his company:
- had undertaken building and construction work on ERF 2680, Gordon’s Bay in contravention of Section 4 of the National Building Regulations and Building Standards Act 103 of 1977.
- Had used and is using the property in a manner which is not permitted by the zoning of the property as ‘single residential’ in terms of the Gordon’s Bay zoning scheme regulations, the zoning of the property as ‘single residential 1’ in terms of the Development Management Scheme and the departure approval as a guest house for a 5-year period and its conditions
The learned judge gave Peter and his company 30 days (from March 1, 2017) “to bring the building on the property in line with the approved building plans in all respects, whether the inconsistency with the approved building plans arises from conduct before or after the order of 10 August 2012.”
The complete March 2017 High Court Order can be accessed here.
As the thirty days were drawing to a close, uSpiked dispatched an intern to the property to confirm whether this time round the order was being taken any less or more seriously. Unfortunately, not. In fact, the ‘penthouse’ which was part of the out-of-pans addition was being offered for sale under an out-of-zoning Sectional Title Scheme. The estate agent handling the matter had also not been informed of the court orders that had required pulling down of the out-of-approved plans constructions.
Catch me if you can…
One would wonder how untouchable Peter is! This journalist didn’t have to wonder though.
Francis Newdigate Peter appears to have created safeguards that are somewhat confusing. In the Companies and Intellectual Property Commission (CIPC) data base, this journalist found four (4) different Identities that have been used by Peter to register over thirty companies and close corporations. These were 551007****003, 551007****013, 551007****083 and 551007****086.
There are 23 entities register under ID No. 551007****003: Champagne Homes (Pty) Ltd. – 1983/008355/07, ERF 2 Paulshof Ext 55 (Pty) Ltd. – 1995/011680/07, Nexus Brokers (Pty) Ltd. – 1987/004764/07, Jathak Property Investments cc – 1987/020810/23, Nexus Construction (Pty) Ltd. – 1981/006651/07, Nexus Corporation (Pty) Ltd. – 1969/017759/07, Nexus Film Productions (Pty) Ltd. – 1987/004948/07, Nexus Holdings Ltd. – 1987/004854/06, Nexus Homes (Pty) Ltd. – 1984/008711/07, Nexus Land Holdings (Pty) Ltd. – 1987/004934/07, Nexus Marketing (Pty) Ltd. – 1987/004765/07, Nexus Projects (Pty) Ltd. – 1986/003646/07, Nexus Properties (Pty) Ltd. – 1986/003645/07, Nexus Property Investments (Pty) Ltd. – 1987/004786/07, Nexus Property Investment (Cape) (Pty) Ltd. 1989/001650/07, Nexus Systems (Pty) Ltd. – 1987/002784/07, Nexus Ventures (Pty) Ltd. – 1987/002094/07, Plus Agt Ontwikkelings (Pty) Ltd. – 1982/002351/07, Portland Manor Estate cc – 1994/016719/23, Portland Manor Estate (Pty) Ltd. – 1998/020779/07, Rem Sunninghill 78 (Pty) Ltd. – 1993/003030/07, Sunninghill Ext 75 (Pty) Ltd. – 1991/006196/07, and Wensleydale Farm (Pty) Ltd. – 1989/004337/07.
One entity, Nexus Group (Pty) Ltd. – 1987/004784/07 is registered using ID number 551007****013. Similarly, in 1990, he used ID number 551007****083 to register a close corporation called 25 Church Street cc – 1990/000353/23 a close corporation from where he resigned and is presently under final deregistration.
ID number 551007****086 is the one used for the registration of the now Straightprops 95 Shareblock (Pty) Ltd plus eleven other companies; ERF 8180 Plet (Pty) Ltd. – 2014/247142/07, Jaferta cc – 2004/031166/23, Jaferta (Pty) Ltd. – 2014/187054/07, Mile Investments 366 (Pty) Ltd. – 2010/007655/07, Mystic Blue Trading 422 (Pty). – 2006/022632/07, Nexprop 102 (Pty) Ltd. – 2015/226446/07, Qualyprop 914 cc – 2001/046690/23, Rapid Dawn 1058 cc – 2002/068272/23, Seacrest Investments 167 (Pty) Ltd. – 2010/007196/07, The Wine Warehouse (Pty) Ltd. – 2012/086129/07, Turtle Covenine (Pty) Ltd. – 2012/086130/07.
With most of these registered companies featuring Peter (of whatever identity) and another shell name, NTV Nexus Corporation (Pty) Ltd. as directors, it would somehow be difficult to identify the real culprit in this blatant disregard of judicial authority as well as municipal by-laws.
During a recent visit to the Cape Town’s Deeds Office, uSpiked did not find any records showing that ERF 2680 Gordon’s Bay has been rezoned into a Sectional Title Scheme. And as the estate agent involved here continues to market it as such, we are yet to see what kind of title, the successful investor will be given. Or is Peter intending to sell the illegal penthouse before demolishing it in compliance with the court order? Only time will tell.
For now, Francis Newdigate Peter appears to be playing a game of 'catch me if you can' with the City of Cape Town, the High Court as well as unsuspecting investors.