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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 4859/2024
In the matter between:
THE GREEN POINT RESIDENTS’ AND
RATEPAYERS ASSOCIATION First Applicant
THE TRUSTEES FOR THE TIME BEING
OF THE RUSNIC TRUST (IT 2867/09) Second Applicant
THOMAS FRANCIS GALLAGHER Third Applicant
JACQUELINE FRANCIS GALLAGHER Fourth Applicant
ANDREW VINCENT MCPHERSON Fifth Applicant
CYRIL IAN GLASER Sixth Applicant
BARBARA RUTH MEYERS Seventh Applicant
And
LEONHARD GARTNER First Respondent
ANDREAS ROBERT HERMANN PLANK Second Respondent
JANINE ADUDE STEPHANIE PLANK Third Respondent
THE CITY OF CAPE TOWN Fourth Respondent
Heard: 22 August 2024
Delivered: Electronically on 10 September 2024
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
___________________________________________________________________
LEKHULENI J
1. Introduction
[1] This is an application for leave to appeal to the Supreme Court of Appeal ("the
SCA") alternatively, to the full bench of the Western Cape High Court in terms of
section 17(1) of the Superior Courts Act 10 of 2013 ("the Superior Courts Act"),
against the whole judgment and order of this Court handed down on 03 June 202 4.
In that judgment, t his Court dismissed the applicants' application for an interdict to
cease building works on Erf 1 […] Green Point, also known as […] J[…] Street Road,
Green Point, Western Cape, pending the determination of a review application to set
aside the decision of the fourth respondent (“the City”) to approve a set of building
plans.
[2] In their application for an interdict, the applicants asserted their right to a
review as their anchor prima facie right in their founding papers. The applicants
focused on proving their prospects of success on review. During the argument of the
main application, the court was referred to various grounds supporting the applicants'
argument that they have incredibly good prospects of success in Part B (review
application) and that the interdict should be granted. In addition, the applicants relied
on several cases where the courts held that the prospects of success in the
contemplated review proceedings represent the measure of the strength or
otherwise of the alleged right that the applicants must establish prima facie to obtain
interim relief. (See Searle v Mossel Bay Municipality and Other [2009] ZAWCHC 9 at
para 6).
[3] In its ruling, this Court found that ever since the decision of the Constitutional
Court in National Treasury and Others v Opposition to Urban Tolling Alliance and
Others 2012 (6) SA 223 (CC) ( “OUTA”), there has been a considerable shift on the
applicable test in applications for an interdict pending review proceedings. The court
found that to obtain a temporary interdict, it is no longer enough for an applicant to
contend that it has a good review case. In terms of OUTA, the prima facie right that
an applicant must establish is not merely the right to approach a court to review an
administrative decision . It is a right to which irreparable harm will ensue if not
protected by an interdict.
[4] In reaching this conclusion , the court also relied on Khoin and Others v
Jenkins and Others [2023] 1 All SA 110 (WCC) (“Khoin and Others v Jenkins and
Others”), a full court decision of this division where th e court held that protecting the
right to review an unlawful decision cannot form the basis for interim relief. The court
also relied on Joostenbergvlakte Community Forum v Montana Development
Company (Pty) Ltd, Case Number: 12205/2023 ZAWCHC (28 December 2023 ),
where it was stated that to interdict building work pending a review, a prima facie
right is not established merely if grounds of review show prospects of success.
Simply put, there could be no consideration of irreparable harm without a prima facie
right to be protected from future irreparable harm.
2. Grounds of Appeal
[5] In summary, the grounds of appeal discernible from the notice of appeal are
that the court applied an incorrect test when it dismissed the applicants' application
for an interdict. According to the applicants, the requirements for interim interdict
pending the review of an administrative decision are well-established and remained
unchanged. The applicants asserted that their appeal has a reasonable prospect of
success and that there are compelling reasons that the judgment of this Court on the
applicable test of interdicts pending review conflicts with a considerable body of
judicial precedent that has developed within the specific context of interdicts for
cessation of building works pending review.
[6] The applicants contended that this Court erred in finding that the rights
asserted by the applicants were insufficient to find a prima facie right for interim
interdictory relief as the building work did not affect th e rights the applicants sought
to protect. The applicants further asserted that they had established prima facie that
the building work of the respondents was being erected in contravention of the
Building Act, the City of Cape Town's Municipal Panning By -Law, 2015, and the
Development Management Scheme, both as amended, principally on the basis that
the building was being built too high, too close to the common boundary and in such
a manner that it was objectionable and derogated from the value of their su rrounding
properties.
[7] The applicants further asserted that the court erred in finding that the
alternative remedy for the applicants was a review. According to the applicants, they
did not seek a permanent interdict, in which a review would certainly be an
alternative remedy. The applicants implored the court to grant leave to appeal to the
full bench of this division, alternatively to the Supreme Court of Appeal.
3. Principal Submissions by the Parties
[8] Mr Paschke, the fourth respondent's Counsel, submitted that the Court's
judgment and order are correct and that an appeal has low prospects of success.
Nonetheless, Counsel submitted that leave to appeal should be granted under
section 17(1)(a)(ii) of the Superior Courts Act. Mr Paschke contended that there are
conflicting judgments relating to the interdict pending review application. Counsel
asserted that this Court followed and was bound by the decision of the full court in
Khoin and Others v Jenkins and Others. It was Mr Paschke’s submission that the
applicants continue to assert the approach in earlier cases that either predate OUTA
or do not refer to OUTA. Counsel further submitted that the City's position is clear:
the judgment of this Court is correct, and the applicants' reliance on inconsistent
historic cases is wrong.
[9] However, Mr Paschke argued that there are other compelling reasons why an
appeal should be heard. Despite the clarity and correctness of the judgment, so the
contention pr oceeded, the applicants and other objectors continue to rely on the
historic position in construction interim interdict litigation. Counsel submitted that the
circumstances in which a party is entitled to a construction interdict pending the
review of a municipality's building plan is a discrete issue of public importance that
affects many future disputes. To this end, Counsel implored the court to grant leave
to the Supreme Court of Appeal in terms of section 17(1)(a)(ii) of the Superior Courts
Act, as the appeal involves questions of law of public importance because of their
general impact on future cases.
[10] Mr Irish, on the other hand, the applicants' Counsel shared Mr Paschke's view
that there are compelling reasons to grant leave to appeal to the Supreme Court of
Appeal. However, Mr Irish maintained that this court applied an incorrect test when it
dismissed the applicant's application. Counsel urged the court to grant leave to
appeal to the Supreme Court of Appeal.
[11] On the other hand, Mr. Muller, Counsel for the first to the third respondents,
reiterated his argument in his written submission that the Court's judgment was
accurate and that the application for leave to appeal should be dismissed. Counsel
submitted in his written submission that OUTA has once altered the legal position: an
applicant’s prima facie right cannot merely be a right to review. Mr Muller contended
that a full court of this division adopted OUTA specifically in the context of building
interdicts in Khoin and Others v Jenkins and Others , by holding that a right of review
cannot form the basis for interim relief.
[12] In addition, Mr Muller submitted that Mayosi AJ considered herself bound by
OUTA and Khoin and Others v Jenkins and Others , when she decided
Joostenbergvlakte Community Forum v Montana Development Company (Pty) Ltd.
Similarly, this Court in the present case was bound by the full Court’s decision of
Khoin and Others v Jenkins and Others. Counsel implored the court to refuse the
application with costs, including the costs of two Counsels on Scale C.
4. The Relevant Legal Principles
[13] The applicants’ application for leave to appeal is based squarely on section
17(1)(a) of the Superior Courts Act . Section 17 of the Superior Courts Act regulates
applications for leave to appeal from a decision of a High Court. It provides as
follows:
‘(1) Leave to appeal may only be given where the judge or judges concerned
are of the opinion that—
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of section 16
(2) (a); and
(c) Where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and prompt resolution of
the real issues between the parties.'
[14] The test, which was applied previously in applications of this nature, was
whether there were reasonable prospects that another court may c ome to a different
conclusion. With the enactment of section 17 of the Superior Courts Act, the
threshold for granting leave to appeal a judgment of the High Court has been
significantly raised. The use of the word ‘would’ in subsectio n 17(1)(i)(a) of the
Superior Courts Act imposes a more stringent threshold in terms of the Act,
compared to the provisions of the repealed Supreme Court Act 59 of 1959. ( S v
Notshokovu [2016] ZASCA 112 at para 2). In Mount Chevaux Trust [IT 2012/28 v
Tina Goosen and 18 Others 2014 JDR 2325 (LCC), at para 6, Bertelsmann J stated
as follows:
“It is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The former
test whether leave to appeal should be granted was a reasonable
prospect that another court may come to a different conclusion, See
Van Heerden v Cronwright and Others 1985 (2) SA 342 (T) at 343H.
The use of the word ‘would’ in the new statute indicates a meas ure of
certainty that another court will differ from the court whose judgment is
sought to be appealed against”.
[15] What is required of this Court is to consider, objectively and dispassionately,
whether there are reasonable prospects that another court will find merit in the
arguments advanced by the losing party. ( See Valley of the Kings Thaba Motswere
(Pty) Ltd and Another v Al Maya International [2016] 137 (ZAECGHC) 137 (10
November 2016) at para 4).
5. Discussion
[16] This Court cogently explained in its judgment the test applicable in interim
interdicts preventing construction pending the determination of a judicial review of
the administrative decisions that authorise building work. Crucially, the court was
bound by OUTA, in which the Constitutional Court held that on the prima facie right
leg of the Setlogelo v Setlogelo 1914 AD 121 test for interdictory relief, an applicant
cannot merely rely on a right of review because review rights do not require
preservation pendente lite . To succeed with interim interdictory relief , some right
other than a right to review must be threatened with irreparable harm.
[17] The applicants take issue with the Court's finding that the test for temporary
interdicts pending review has ch anged since OUTA. The applicants rely on cases
decided before OUTA and argue that in OUTA, the Constitutional Court did not
establish a new test or law. The applicants also cite two cases which were decided
after OUTA and contend that the requirements for interim interdict pending the
review of an administrative decision have remained unchanged.
[18] In my view, there are conflicting decision s dealing with the test of a prima
facie right in interdict applications for the cessation of building works pending a
review application . For instance, in Tavakoli and Others v Phase III Development
Company (Pty) Ltd and Another (22026/2015) [2015] ZAWCHC 188 (11 December
2015), the applicants sought an interim interdict on an urgent basis pending the
determination of an application to review and set aside the approval of building
plans. In that case, both parties accepted that the applicants’ prima facie right was
based on the proposed review, even th ough the approval of the plans would still
stand until set aside.
[19] Rogers J , as he then was, relied on Searle v Mosselba y Municipality and
Others 2009 ZAWCHC 9 at para 6 -7; Camps Bay Residents and Ratepayers
Association and Others v Augoustides and Others 2009 (6) 190 (WCC) para 10, that
the prospects of success in the review proceedings represented the measure of th e
strength or otherwise of the alleged right that the applicants must prima facie
establish to obtain an interdict. However, t he court did not consider whether that
approach is correct.
[20] On the other hand, the Gauteng High Court did not consider the test
mentioned in OUTA in Sandton Crowne Properties (Pty) Ltd v Municipal Manager
City of Ekurhuleni Metropolitan Municipality Others [2024] ZAGPJHC 733 (30 July
2024) para 9. An interdict was requested in this case while the Municipality's
decision regarding the approval of site d evelopment or building plans was being
reviewed. The court noted that the requirements of an interdict are well -established.
On the requirement of a prima facie right, the court observed that the interdict must
protect a prima facie right worthy of protect ion. Even if the existence of the right is
open to some doubts, noted the court, it would be sufficient for an interdict.
[21] As previously stated, in dismissing the applicants' application in the present
matter, this Court considered itself bound by OUTA and Khoin and Others v Jenkins
and Others, in determining an application for a construction interdict pending review.
In Khoin and Others v Jenkins and Others , the full court found that protecting the
right to review the unlawful decision can not form the basis for interim relief. Simply
put, there could be no consideration of irreparable harm without a prima facie right to
be protected from future irreparable harm. This Court also considered itself bound by
Joostenbergvlakte Community Forum v Montana Development Company (Pty) Ltd,
Case Number: 12205/2023 ZAWCHC (28 December 2023) , where the court found
that the right to review an allegedly unlawful decision cannot form the basis for
interim interdictory relief pending a review.
[22] From the cases discussed above, it is abundantly clear that there is a conflict
of decisions on the test applicable in an application for an interdict pending a review
application particularly for building plans. Whilst I am not persuaded of any prospects
of su ccess in the applicants' application for leave to appeal, I am of the view that
there are compelling reasons to grant leave to appeal as the issues raised in the
appeal raise issues of public importance. More so, section 17(1)(a)(ii) of the Superior
Courts Act is not limited to conflicting judgments. In Caratco (Pty) Ltd v Independent
Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2, the SCA stated:
“If the court is unpersuaded of the prospects of success, it must still enquire
into whether there is a compe lling reason to entertain the appeal. A
compelling reason includes an important question of law or a discreet issue of
public importance that will have an effect on future disputes. But here too, the
merits remain vitally important and are often decisive”.
[23] Notwithstanding this Court's finding and the full court's decision in Khoin and
Others v Jenkins and Others, the applicants and other objectors continue to rely on
the historic position in construction interim interdict litigation. The circumstances in
which a party is entitled to a building construction interdict pending the review of the
municipality's building plan is a discrete issue of public importance that will influence
future disputes. Pursuant to the discussion above, I am of the view that an appeal in
this matter demands the attention of the Supreme Court of Appeal in terms of section
17(1)(a)(ii) of t he Superior Courts Act. Section 17(1)(a) of the Superior Courts Act
permits leave to appeal where: (i) the appeal would have reasonable prospects of
success; or (ii) 'there is some other compelling reason why an appeal should be
heard, including conflicting judgments.
[24] In my view, t he appeal in this matter involves a question of law of public
importance because of its general impact on future cases. An authoritative judgment
from the SCA will be in the interests of (a) owners seeking to exercise their
fundamental property right to build under municipal approval, (b) objectors who may
be contemplating an interim interdict application, and (c) the City and other
municipalities who face the risk of interference with their constitutionally assigned
powers.
[25] After careful consideration of the applicants ’ stated grounds of appeal and the
submissions by the various Counsels, I am of the view that leave to appeal should
be granted in terms of the provisions of section 17(1)(a)( ii) of the Superior Courts
Act. Furthermore, pursuant to the reasons given above, I am of the view that this
matter deserves the attention of the Supreme Court of Appeal.
6. Order
[26] In the result, the following order is granted:
26.1 The applicants are granted leave to appeal to the Supreme Court of
Appeal against the judgment of this Court delivered on 03 June 2024. The
costs of this application will be costs in the appeal.
__________________________
LEKHULENI J
JUDGE OF THE HIGH COURT
WESTERN CAPE HIGH COURT
APPEARANCES
For the applicant: Mr Irish SC
Mr Lubbe
Instructed by: Van Rensburg & Co
127 Main Road
Bergvliet
Cape Town
For the first, second and
third Respondents:
Mr Muller SC
Mr Baguley
Instructed by: Slabbert Venter Yanoutsos
65 Constantia Main Road
Wynberg
Cape Town
For the Fourth Respondent: Mr Paschke SC
Mr De Beer
Instructed by: Fairbridges Wetheim Becker
5 Buitengracht Street
Cape Town