Court halts further work on luxury Stellenbosch mountain estate

Further work on the Botsmaskop Fynbos Estate has been halted by the Western Cape High Court. Photo from an appendix in court papers.

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 and Development Planning (DEADP) in February 2021 for the planned 77-unit Fijnbosch Residential Estate.

The current owner of the property is Botmaskop Fynbos Estate, who is one of 32 respondents to oppose the application.

None of the buyers or owners of erven on the estate opposed it.

History

In her 52-page judgment delivered electronically on the afternoon of Wednesday, 16 April 2025 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, Judge 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 (EA) to construct a small mountain resort consisting of 10 rooms, 15 chalets, a small gymnasium, a swimming pool, and a conference facility.

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 it advised that this was a change in the nature and scope of the development that had been approved in 2003. Therefore, a more rigorous Part II Substantive Amendment Application that included public participation was now required.

Notice of this new Part II application was duly given to the Interested and Affected Parties (IAAPs), including the SIG which then objected in October 2019.

But in October 2020, Reset Properties submitted a Part I (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.

On Tuesday, 18 February 2021, in what appears to have been an inexplicable reversal of its previous position, the Department [DEADP] approved the 2021 EA as a non-substantive Part I application, stated Judge Holderness.

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.

From small mountain resort to residential estate

This new environmental authorisation amended the 2003 approval by changing the description from a “small mountain resort” to the “Fijnbosch Residential Estate” with 77 residential units and associated infrastructure covering a development footprint of 36,282m².

"The upshot of this is that SIG only became aware that the 2021 EA had been granted, without public participation and as a non-substantive amendment (which applies only where there is no significant change in the nature and scope of the proposed development), three years after the approval had been granted to change the development from a small mountain resort to a 77-unit residential estate,” the judge wrote.

"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, Judge Holderness noted.“

"It appears…that SIG’s contention that the failure to determine the 2020 application as a Part II 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.”

Constitutional rights

Judge Holderness said she was aware her decision would have “significant and far-reaching consequences and costly implications for the unsuccessful party” and she had attempted to carefully weigh the interests of and competing harms to the parties.

“It is not a decision which I have taken lightly … Whilst being sympathetic of the difficult position in which Botmaskop finds itself, in my view the anticipated pecuniary loss to Botmaskop cannot justify the possible infringement of the SIG’s (and the public’s) constitutional rights.

"Where constitutional rights are in issue, the balance of convenience favours the protection of those rights.“

I am of the view that in all the circumstances, the balance of convenience favours the granting of the interim relief sought, as if interim relief is not granted, the harm which will be suffered by SIG and the public more generally is likely to be significant and irreparable.”

Judge Holderness ordered that, pending determination of Part B of SIG’s application, Botmaskop and the eighth to thirty-second 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.