CARMEL RICKARD

THE owner and would-be developer of valuable mountain slope property at Oudekraal next to Camps Bay has been dealt what could be a fatal blow to his plans to turn the ecologically sensitive land into a residential township.

Five judges of the Appeal Court in Bloemfontein have ruled that when the then administrator of the province approved the demarcation of the township in 1957, he had acted invalidly.

He was either not told about the kramats or graves of Muslim holy men on the land or else knew about them, but disregarded their existence. Whichever caused him to give permission despite the existence of the graves, the resulting decision was invalid.

Friday's judgment was important on three separate grounds.

It could well be the end of the road for the developers. Their plans to turn what is widely viewed as a national heritage site and a resource available for the benefit of all in South Africa, into a residential area owned and lived in by an elite few, has met with great public outrage.

There are still some steps to finalising this battle. Although the original decision has been held to be invalid, both the administrator's approval and the subsequent decisions and actions taken in terms of his decision remain valid until they are set aside by a court.

Legal action to ask for such a declaration of invalidity will certainly be the next step for the groups objecting to the proposed development.

Second, the judgment was to a large extent based on the existence on the site of kramats, and on their significance in the religious and cultural life of the Muslim community.

The judges made quite clear their view that the Bill of Rights required such sensitivities to be given proper consideration.

The third importance of the decision is spelt out by the judges in their opening paragraph: "This appeal raises important questions for the rule of law." These questions centre on what happens if an administrative act is unlawful - can it simply be ignored?"