Parties Hold Their Breath in Battle Over R300-Million Stellenbosch Mountain Estate

All infrastructure work on the R300-million Botmaskop Fynbos Estate on the Helshoogte Pass between Stellenbosch and Franschhoek has already been completed.

• Concerned citizens in Stellenbosch are seeking an urgent interdict to stop construction of a gated housing estate, arguing that the environmental integrity of the mountainside will be “forever lost” if the development continues.
• The developer of Botmaskop property has already invested R300-million and sold 29 of 77 plots, with remaining erven priced between R8-million and R36-million. They argue an interdict would be “catastrophic” for the project.
• The case includes challenges to the environmental authorisation granted without public participation in 2021, and a controversial land swap deal between the developer and Stellenbosch municipality.
• Both parties anxiously await the court’s ruling.

A Western Cape High Court judge is mulling over whether to approve an urgent application for an interim interdict to temporarily halt all further work on a R300-million luxury housing estate being developed on the mountain slopes above Helshoogte Pass, just outside Stellenbosch.

The interdict application forms part A of a High Court application that will be followed by part B, seeking final relief through several substantial legal challenges to the continued development of Botmaskop Fynbos Estate now under construction.

Concerned citizens, who have brought the interdict application, argue that the environmental integrity of this important site will be “forever lost” if development is allowed to continue.

But the judge was told by the developer that granting the application would likely be “catastrophic” because of the impact on future sales of erven in the gated estate.

Botmaskop is the latest in a series of proposals for this spectacular mountain property that have raised concerns in the winelands community over more than two decades.

Currently, all bulk infrastructure work in the form of services like roads and water and sewerage reticulation for the exclusive estate has already been completed. Only an estate clubhouse is outstanding.

When the developer filed an answering affidavit in mid-November last year, 29 of the 77 residential plots had already been sold, of which 17 had already been transferred to the buyers. Prices of remaining erven ranged from just under R8- million to more than R36-million.

Part B of the interim interdict application is for final relief in the form of various declaratory orders and two review applications.

The first review is in respect of environmental authorisation for the estate granted by the provincial government in February 2021, allegedly without public participation.

The second review is of a highly controversial land-swap involving the transfer of some four hectares of municipal land on Botmaskop to the estate, in return for an equal amount of land owned by the estate higher up on the mountain.

Objectors insist that the deal was unlawful, partly because the municipality’s land should have been valued at a much higher rate since it is suitable for development, whereas the estate land offered in return is extremely steep and unsuitable.

The applicant is the Stellenbosch Interest Group (SIG), a voluntary group of concerned citizens established in 1996 to safeguard environmental rights enshrined in the Constitution and to participate in and comment on developments that may infringe on those rights. The group is registered with Heritage Western Cape as a heritage conservation body.

The first respondent is Western Cape environment and development MEC Anton Bredell; a senior official in his department is the second respondent. Stellenbosch municipality is the third respondent; the developer, Botmaskop Fynbos Estate, the fourth; the provincial heritage authority, Heritage Western Cape, the fifth; and Reset Properties, a predecessor of the current developer, the sixth.

After the application was launched, a further 25 respondents were added to the case, including buyers of plots in the estate and sub-contractors.

Originally set down for hearing on 4 December 2024, the matter was postponed to 11 February 2025. After listening to the arguments, Judge Melanie Holderness reserved judgment.

The founding affidavit in the case was deposed by SIG chairperson Ronnie Donaldson, a professor of geography at Stellenbosch University.

“Developers have been eyeing this prime residential site with its wonderful views out over the winelands for more than two decades,” he explains in this affidavit.

“The background to the proposal is the inappropriate and the highly insensitive development of Botmaskop that has been the source of serious concern to the broader Stellenbosch community for more than two decades.”

“The February 2021 decision to approve a gated residential estate on the site also had the effect of depriving members of the public of access to parts of the mountainside.

“SIG’s case, in a nutshell, is that an extensive residential development on the slopes of the mountain should never have been approved without the views of members of the public having been sought and taken into account.”

Explaining the need for an urgent interim interdict, Donaldson states: “If interim relief is not granted, Botmaskop will be able to build itself into an impregnable position, where the extensive residential development on the site is an accomplished fact.”

“The harm suffered will be irreparable in that the environmental integrity of the site, the sense of place and the unspoilt beauty of the mountainside within a grade II cultural landscape along a grade II scenic route to Stellenbosch, as well as public access to parts of the mountainside, will be forever lost if the development is allowed to continue.” (Find the explanation of a Grade II site in the box below)

The developer responds

In heads of argument, Botmaskop’s legal team state that SIG failed to provide facts supporting the urgency of its application. Also, the land had already been “materially transformed”.

They said that “given the advanced development of the property and the significant land disturbance that has already taken place, a temporary interdict designed to protect the environment and/or heritage of the site is far too late to be effective”.

They argue that Botmaskop had already invested some R300-million in the development, a significant part of which has been financed through a development loan, and a temporary interdict was likely to be “catastrophic” for the developer.

“The interdict will effectively bring to a halt future sales and transfers of erven in the estate until the finalisation of the review. This will prevent Botmaskop from servicing its loan and paying its service providers from the proceeds of sales, exposing Botmaskop to irrecoverable finance charges and potential recovery proceedings brought by its service providers.”

In his affidavit, Botmaskop chief executive Werner Roux comments: “The proverbial horse has bolted.”

“It seems that the applicant has been content to watch Botmaskop invest hundreds of millions of rands into the development while sitting back, taking no steps to protect or advance its position, and biding its time. The applicant has waited until the very last minute to launch this application, the result being that the harm Botmaskop will now suffer if the interdict is granted is out of all proportion to the harm that the applicant might suffer if the interdict is not granted.”

What is a grade II site?

Grade II sites are so special that they need to be given a status beyond the protection provided by being entered in the Heritage Register, but are not of outstanding national significance. They may be rare examples of their kind, or otherwise be highly representative of a type. They may connect closely to an event or figure of provincial/regional significance. Grade II sites should enrich the understanding of the cultural, historical, social and scientific development of the Western Cape and of the region in which they are situated. The intrinsic, comparative and contextual significance of the heritage resource must be determined. Once declared, Grade II sites become Provincial Heritage. Sites and are managed by HWC in the Western Cape.

Grade I and II sites may include, but are not limited to places, buildings, structures and immovable equipment of cultural significance; places to which oral traditions are attached or which are associated with living heritage; historical settlements and townscapes; landscapes and natural features of cultural significance; geological sites of scientific or cultural importance; archaeological and palaeontological sites; graves and burial grounds; sites of significance relating to the history of slavery in the Western Cape; sites of significance to Khoesan heritage in the Western Cape and sites of significance relating to the liberation struggle in the Western Cape.

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