Brief Summary

Environmental Law — Interdict — Application for rescission of interdict granted against River Club development — First applicant, a group representing First Nations Peoples, alleged fraud in the original application, claiming lack of authority by the respondent to act on their behalf — Respondent's late submission of opposing affidavit deemed unreasonable and not in the interest of justice — Court upheld the rescission application, emphasizing the need for proper authority in representing community interests in environmental matters.

Comprehensive Summary

Summary of Judgment

1. Introduction

The judgment concerns two interconnected matters heard together in the Western Cape High Court, Cape Town: an application for rescission of an earlier interdict judgment and an appeal against that same interdict judgment. The interdict had halted aspects of the River Club / Two Rivers Urban Park development in Observatory, Cape Town, pending review proceedings.

The principal parties in the rescission proceedings were the Goringhaicona Khoi Khoin Indigenous Traditional Council (and certain of its office-bearers) as applicants, and Mr Tauriq Jenkins (and others cited) as respondents. In the appeal, multiple appellants (including provincial planning authorities, the developer’s trust, and the City of Cape Town) challenged the interdict order obtained by the Observatory Civic Association and (purportedly) the Goringhaicona Khoi Khoin body.

Procedurally, the interdict was originally granted by Goliath DJP as Part A relief in proceedings in which Part B contemplated reviews of environmental and planning approvals. After that interdict, the Goringhaicona Khoi Khoin body brought rescission proceedings contending that the interdict was obtained through fraud, principally because Mr Jenkins allegedly lacked authority to litigate on its behalf and allegedly misrepresented both its governing constitution and the views of certain indigenous leaders.

The rescission application and the appeal were set down to be heard together. A further procedural feature addressed by the court was Mr Jenkins’ late attempt to file an extensive answering affidavit in the rescission proceedings; condonation for lateness was refused, with the result that the rescission application proceeded substantially on the uncontroverted version advanced by the applicants.

The broader subject-matter of the dispute concerns the legal propriety of interim interdictory relief stopping development activity, the integrity of the authorisation and participation processes underpinning a development with acknowledged heritage significance, and the institutional authority required to litigate on behalf of a voluntary association or traditional council.

2. Material Facts

The dispute arose in the context of an approved development known in the judgment as the River Club development. It was common cause that the development site is associated with significant indigenous heritage, including the cultural and historical importance of the confluence of the Black and Liesbeeck Rivers, and the site’s symbolic association with early encounters and resistance to colonialism. The court also recorded that the heritage is largely intangible in character, rooted in memory and historical association.

It was also common cause that the site was already significantly degraded and included modern features such as a golf club and associated infrastructure. The authorities had received and approved a development proposal that included environmental rehabilitation elements, public open spaces with indigenous vegetation, a heritage museum and amphitheatre, residential and commercial components (including affordable housing), and public transport infrastructure. Relevant authorities granted environmental authorisation and planning permissions after public participation, and construction commenced.

The facts material to rescission centred on authority and representation. In the interdict proceedings, Mr Jenkins asserted that he litigated on behalf of the Goringhaicona Khoi Khoin Indigenous Traditional Council and relied on a resolution dated 27 July 2021, said to authorise him to instruct attorneys, sign powers of attorney, and depose to affidavits. That resolution was presented as adopted under a March 2021 constitution.

In the rescission proceedings, the Goringhaicona applicants asserted that the only valid constitution was their 2018 Constitution, which prescribed specific internal authorisation requirements for legal proceedings, and which (on their version) were not met. The rescission applicants contended that key office-bearers whose signatures were required (including the regent and the senior chief) had not signed the resolution, rendering it invalid and leaving Mr Jenkins without authority to litigate in their name. They further contended that the “2021 constitution” relied upon in the interdict proceedings was not validly adopted by the relevant structures and did not bind the group.

In addition to authority, the rescission application relied on evidence that Mr Jenkins had made sworn claims in the interdict founding papers suggesting consultation with, and opposition by, certain indigenous leaders and groups. Affidavits were put up by persons including Mr Petrus Vaalbooi and Chief Danster, who stated that they had not spoken to Mr Jenkins (or had not had dealings with him) regarding the development and did not wish to be associated with the litigation, and that their names had been used without consent. The court treated these allegations as standing uncontested for purposes of rescission, given the absence of an admissible answering affidavit from Mr Jenkins.

Further material facts included that the interdict was granted after construction had already commenced and after the site had already been altered by construction activities in accordance with granted approvals. In the appeal, the respondents (including the Observatory Civic Association) abandoned a portion of the interdict relief dealing with “meaningful engagement and consultation with all affected First Nations Peoples”, and filed a notice to abide; the appeal itself was not opposed.

3. Legal Issues

The court was required to determine, first, whether the interdict judgment should be rescinded on the basis that it was induced by fraud. This required the court to decide issues involving both fact (whether misrepresentations were made; whether authority existed; whether consulted leaders were misrepresented) and the application of legal standards governing rescission for fraud (including the relationship between fraud, inducement, and the principle of finality).

Secondly, the court had to determine issues arising on appeal from the interim interdict granted in Part A, namely whether the respondents had met the jurisdictional requirements for interim interdictory relief, and whether the court a quo had erred by granting relief that was not sought and was, on the papers, problematic in formulation and enforceability. This involved the application of law to fact, particularly the concepts of prima facie right, irreparable harm, and whether interim relief can address past procedural defects (such as allegedly inadequate consultation).

Thirdly, the appeal required determination of whether the court a quo had erred in dismissing applications to strike out material on the basis that the respondents had impermissibly introduced new matter and new review grounds in reply, contrary to motion proceedings principles.

A further issue in the appeal was whether Mr Jenkins could represent the Goringhaicona body in the appeal proceedings, given the finding that he lacked authority and given the rule against lay representation of other persons or groups in court.

Finally, the court had to decide appropriate costs orders in circumstances involving constitutional-adjacent interests and submissions relating to Biowatch principles, as well as the effect of the respondents’ abandonment of part of the relief.

4. Court’s Reasoning

In addressing rescission, the court emphasised the limited and carefully defined grounds on which rescission may be granted, linking this to the principle of finality of judgments. The judgment referred to authority underscoring that rescission is exceptional and must be approached with prudence, particularly where the basis advanced is fraud.

The court identified the requirements for rescission based on fraud in the terms it applied: the applicant had to show that incorrect evidence was given in the initial proceedings; that it was given fraudulently with intent to mislead; and that the divergence from the true facts was such that, had the court known the truth, it would have reached a different result. The court then evaluated the rescission evidence in detail, particularly because rescission is not readily granted.

On the procedural question of Mr Jenkins’ late answering affidavit, the court refused condonation, recording that the explanation was unreasonable, did not cover the full period of delay, and that allowing admission of a voluminous affidavit at a very late stage was not in the interests of justice, especially given the linked and urgent character of the matters and the directive that the appeal be dealt with urgently. The court took into account a sequence of events reflecting delay and non-compliance with undertakings, including Mr Jenkins’ absence from a direction hearing and the timing and form of the affidavit sought to be introduced.

On the merits of fraud and authority, the court accepted the uncontroverted evidence that the Goringhaicona body was governed by its 2018 Constitution, and that the purported 2021 constitution relied upon in the interdict proceedings did not bind the group. Applying the internal authorisation requirements contained in the 2018 Constitution, the court accepted that the resolution relied upon to authorise litigation did not contain the required signatories and was therefore invalid, with the result that the interdict proceedings had not been authorised by the Goringhaicona body.

The court further accepted evidence from indigenous leaders (including Mr Vaalbooi and Chief Danster) denying consultation with Mr Jenkins prior to the interdict proceedings and denying support for the application, treating these denials as significant because the earlier judgment had relied on Mr Jenkins’ allegations to meet contentions regarding support from First Nations groups. The court reasoned that these misrepresentations were material to the earlier court’s approach, and that it was “axiomatic” that the court a quo would not have entertained the application had it been aware that the Goringhaicona body had not authorised the litigation.

In the appeal, the court first addressed the abandonment of the consultation-related relief. It reasoned that abandonment could not, in itself, resolve the difficulty that the relief operated in the interests of unidentified parties, and that their rights under the order would remain until set aside. The court characterised the abandoned relief as final in effect and unenforceable because it did not identify who must consult, or with whom consultation must occur, and because it had not been sought on the papers in that form.

The court then addressed Mr Jenkins’ attempt to represent the Goringhaicona body in the appeal. It held that the group could only be represented by a legal practitioner of its choice and that a lay person may not represent other persons in court proceedings, relying on authority that treated this as a matter admitting of no discretion and noting the statutory support found in the Legal Practice Act.

Turning to the requirements for interim interdictory relief, the court restated the familiar Setlogelo requirements. It then focused on what it considered a decisive defect in the interdict case: the respondents described their prima facie right largely as a right to pursue a review of allegedly unlawful decisions. The court applied authority holding that a general right to approach court for review is not the kind of prima facie right that, if unprotected by an interdict, would suffer irreparable harm, and that interdicts prevent future conduct rather than “decisions already made”. On the court’s reading, the founding papers did not allege or establish irreparable harm to the heritage right asserted; instead, the papers suggested the development might enhance a degraded site, and the authorisations contemplated ongoing engagement.

The court also reasoned that, because construction had already commenced and the site had already been altered when the interdict was granted, the interdict did not address imminent future harm in the manner required for interim relief, and it could not be used to remedy a past allegedly inadequate consultation process. The court treated the absence of a properly articulated prima facie right threatened by future irreparable harm as preventing the respondents from satisfying the subsequent interim interdict requirements (including balance of convenience), and it noted the availability of the review proceedings as an alternative remedy, including the review court’s ability to grant “just and equitable” relief if the impugned decisions were set aside.

On appellate interference, the court applied authority distinguishing a discretion “in the strict sense” from evaluative judgments where the result is right or wrong. It concluded that, on the evidence before the court a quo, the interim interdict should not have been granted and thus the appellate court was entitled to interfere and set it aside.

Regarding the striking-out applications, the court applied the motion proceedings principle that an applicant must make out its case in the founding papers, and that it is impermissible to introduce a new case in reply because the opposing party has no opportunity to respond. It held that the court a quo had erred in condoning and considering the new matter for purposes of the interim interdict, because that approach created obvious prejudice: the amplified grounds were used to justify interim relief without proper procedural fairness to those seeking to strike them out.

On costs, the court found no basis to apply Biowatch principles on the facts as it assessed them. It considered it appropriate that costs follow the result in the strike-out applications and the appeal, and it distinguished the position of the Goringhaicona body (as successful rescission applicant) from that of the Observatory Civic Association.

5. Outcome and Relief

On rescission, the court granted declaratory relief confirming that the 2018 Constitution was the valid constitution of the Goringhaicona body (as opposed to the March 2021 document), declared that the Goringhaicona body did not authorise the litigation under the earlier case number, declared that Mr Jenkins (and another respondent) were not duly authorised representatives of the Goringhaicona body, and rescinded the interdict judgment and order granted by Goliath DJP.

Although the court indicated that a punitive costs order might have been appropriate in the rescission proceedings, it recorded that the applicants did not seek costs, and no punitive costs order was made.

On appeal, the appeal was upheld in respect of all appellants. The orders granted by the court a quo were set aside and replaced with orders upholding the strike-out applications with costs (including the costs of two counsel), dismissing the Part A interdict application with costs against the Observatory Civic Association (including the costs of two counsel), and directing the Observatory Civic Association to pay the appellants’ costs occasioned by the applications for leave to appeal in both the court a quo and the Supreme Court of Appeal (including the costs of two counsel).

No appeal costs order was made against the Goringhaicona body in light of its success in the rescission application and the position adopted in the appeal.

Cases Cited

Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curia) [2007] ZACC 24; 2008 (2) SA 472 (CC)

Ethekwini Municipality v Ingonyama Trust 2014 (3) SA 240 (CC)

Childerley Estate Stores v Standard Bank of S.A., Ltd 1924 OPD 163

Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (Council for the Advancement of the South African Constitution and another as amici curiae) 2021 (11) BCLR 1263 (CC)

National Commissioner of Police and Another v Gun Owners of South Africa 2020 (6) SA 69 (SCA)

Commissioner for the South African Revenue Service v Candice-Jean van der Merwe (211/2021) [2022] ZASCA 106 (30 June 2022)

Setlogelo v Setlogelo 1914 AD 221

National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC)

Knox D’Arcy Ltd and Others v Jamieson and Others [1996] 3 All SA 669 (A)

Oakdene Square Properties (Pty) Ltd and Others v Farm Bothasfontein (Kyalami) (Pty) Ltd and Others 2013 (4) SA 539 (SCA)

Administrators, Estate Richards v Nichol and Another [1998] ZASCA 82; 1999 (1) SA 551 (SCA)

United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others 2022 JDR 2651 (CC)

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC)

Legislation Cited

National Environmental Management Act 107 of 1998

National Heritage Resources Act 25 of 1999

Legal Practice Act 28 of 2014

Promotion of Administrative Justice Act 3 of 2000

Constitution of the Republic of South Africa, 1996

City of Cape Town Municipal Planning By-Law, 2015

Rules of Court Cited

Uniform Rules of Court, Rule 41(2)

Uniform Rules of Court, Rule 42

Uniform Rules of Court, Rule 53(1)

Held

The court held that the earlier interdict judgment had been induced by fraud because Mr Jenkins had misrepresented the Goringhaicona body’s governing constitution and lacked authority to institute the interdict litigation on its behalf, and because sworn statements in the interdict proceedings misrepresented consultation with and support from certain indigenous leaders. The judgment and orders granted by Goliath DJP were accordingly rescinded, and declaratory orders were made confirming the validity of the 2018 Constitution and the absence of authority.

In the appeal, the court held that the interim interdict relief should not have been granted because the respondents failed to establish a prima facie right threatened by future irreparable harm, and because an asserted “right to review” administrative decisions was not, on the authorities applied, a sufficient basis for interim interdictory relief. The court further held that the consultation-oriented relief was problematic and unenforceable, and that the court a quo erred in dismissing strike-out applications where new matter had been introduced in reply and then used to support interim relief.

The appeal was upheld with costs against the Observatory Civic Association, the strike-out applications were upheld with costs, and the Part A interdict application was dismissed with costs. No costs order was made against the Goringhaicona body in the appeal.

LEGAL PRINCIPLES

Rescission of a judgment on the ground of fraud is exceptional and must be approached cautiously because of the principle of finality of judgments. The grounds for rescission must remain carefully defined, and discretion in rescission matters is exercised only in exceptional circumstances.

Where rescission is sought on the basis of fraud, the applicant must establish (as applied by the court) that false evidence was presented in the earlier proceedings, that it was presented fraudulently with intent to mislead, and that the falsehood was material in the sense that the court would have reached a different outcome had it known the truth.

A lay person may not represent another natural person or a group of persons in court proceedings; representation of others is reserved to admitted legal practitioners, with statutory support found in the Legal Practice Act and with the common law position applied.

The requirements for an interim interdict remain those articulated in Setlogelo v Setlogelo 1914 AD 221, including a prima facie right (though open to some doubt) and a well-grounded apprehension of irreparable harm if relief is not granted. An interdict is directed at preventing future infringements, not at addressing past acts or past procedural defects, and a general “right to review” administrative action does not, without more, constitute the required prima facie right threatened by irreparable harm.

In motion proceedings, an applicant must make out the case in the founding papers, and it is impermissible to introduce a new case or new grounds in reply in a manner that prejudices the opposing party, because the opposing party has no opportunity to answer those new allegations.

Khoin and Others v Jenkins and Others In re: Observatory Civic Association and Another v Trustees for the time being of the Liesbeek Leisure Properties Trust and Seven Others (12339/2022;12994/2021) [2022] ZAWCHC 227; [2023] 1 All SA 110 (WCC) (8 November 2022)