Re-thinking the “pillar paradigm” for sustainable development: An analysis of the Bo-Kaap Case reveals a shift to simple proportionality … and the fact that deference is not dead after all [discussion of Bo-Kaap Civic & Ratepayers Association v The Ci

This article crystalises and critiques the reasoning of the Supreme Court of Appeal judgment in Bo-Kaap Civic & Ratepayers Association v The City of Cape Town 2020 2 All SA 330 (SCA) (“Bo-Kaap”). It does so against the backdrop of the environmental right in section 24 of the Constitution and its animating touchstone of “sustainable development”. In particular, it is argued that Bo-Kaap reveals that the “pillar paradigm” for elucidating and ensuring sustainability is outdated and doctrinally unhelpful. Instead, sustainability is best considered, and attained, through simple proportionality and thus the balancing of factors – including cultural concerns, such as heritage – in a context-responsive manner. Furthermore, the judgment is a significant, if somewhat flawed, one on the matter of deference in the context of reviewing the decisions of actors that exercise public powers. It cautions against judicial overzealousness where the separation of powers looms large and, as in the context of Bo-Kaap, where administrative efficiency and the developmental agenda is at stake. Furthermore, the judgment simultaneously reveals the power (and importance) of socio-economic-rights litigation (and internal appeal procedures) in enhancing participatory, responsive, and thus more accountable, governance. Bo-Kaap concerned a public-interest matter but was litigated – as per the court – to vindicate personal proprietary interests. The case is therefore also interesting insofar as the court refused to apply the principle in Biowatch Trust v Registrar, Genetic Resources 2009 6 SA 232 (CC) on cost-awards where constitutional litigation is concerned. While the judgment has laudable features, and ultimately shines a redeeming light on the (enhanced) actions of the state decision-makers in ensuring sustainable development, it may equally prove to have a chilling effect on public-interest litigation.