Helene Turvey, who represents a group of owners and residents, said that Mr Frankal first attempted to have the trustees sign off on his plans around 2021. She said the trustees sought legal action which proved that Mr Frankal did not own the real right - a legal right over property, such as the right to make changes to it - and only legally acquired the real right in September 2023.

She said many residents were sold units in the building with the communal deck as a unique feature.

“The loss of this communal space will impact everyone not having a front-facing apartment. It is used by many residents and owners as a safe space to take in the sea air and where they can enjoy the beauty of the beachfront without being harassed,” she said, adding that it may affect property prices for those who do not have sea-facing apartments.

Former chairman of the body corporate Leo Turvey said the communal deck was the deciding factor for him when he bought his flat in 2005.

He said members of the body corporate only heard years later when Mr Frankal made his application that a real right over all the common property was registered in 2007 and that Mr Frankal had bought a portion of the real right for R1 000 from the developer, Mike Vietri, CEO of the FairCape Group and sole owner of Muizenberg Village Developers.

“Everyone thought it was for communal use,” Mr Turvey said, adding that he would often go up there with a beer and a sandwich to watch the sunset.

Mr Turvey questioned why the sale of this section of the real right was not made available to the trustees or body corporate and described the process as “underhanded and a misrepresentation by the developer and builder.”

Ms Turvey said the initial proposal was delayed after involving a professional from the City’s environment and heritage management and spatial planning directorate, as well as Heritage Western Cape (HWC).

They found that since the body corporate had not been properly notified, the application was postponed to allow time for objections, based on heritage grounds, to be submitted.

Ms Turvey said she won the appeal at HWC but Mr Frankal sought further adjudication and this was upheld by the MEC of culture and sport in August last year, which allowed for a revised plan to be submitted to council.

Mr Frankal said it was not fair to say it was his second attempt as the process had become a “protracted process which is being spearheaded by residents and trustees”.

He said the legal advice Ms Turvey is referring to was received in 2021 and that subsequent engagement between attorneys has taken place.

The sale agreement related to this portion of the real right, made in 2019, was provided to the trustees through their attorneys, he said.

Mr Frankal said that a letter from the attorney of the trustees dated February 2023 stated that the trustees would be happy to give consent once they were provided with a certificate from a land surveyor confirming that the consolidation of sections does not contravene any implied restrictions on the scheme.

“I’ve provided this, and I’d like to add that I have compiled with all the trustees' requirements set out in this letter. The trustees are acting beyond the scope of their statutory powers,” he said.

Mr Frankal said it was not fair to say that he did not have the right to enclose the area as the portion of the real right was ceded and registered in the Deeds Office in 2023 once he had complied with the requirements to do so.

He said he acquired the portion of the real right from Muizenberg Village Developers, and that the particular portion of the real right is only of value to the owner of the apartment that leads onto the area in question and the consideration payable was a necessary part of the legalities.

He said the extension has no direct impact on any other apartment, and will not affect the heritage authenticity of the building.

“I have ensured that I have worked with the correct professionals in order to ensure continuity for the building and have followed the correct council approval process. The heritage bodies have approved the extension as it is a continuation of the existing architectural language,” he said.

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Residents unite against plans to enclose viewing deck at historic Empire building