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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024 /051717
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 03/03/2025
SIGNATURE
In the matter between:
INTERACTIVE RISK MANAGEMENT (PTY ) LIMITED 1st Applicant
SAXONWOLD & PARKWOOD RESIDENTS’ ASSOCIATION
(SAPRA) 2nd Applicant
and
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY
(Chairman’s of the City of Johannesburg Municipal Planning
Tribunal and Municipal Appeal Tribunal) 1st Respondent
SAXON SQUARE DEVELOPMENT (PTY) LIMITED 2nd Respondent
JUDGMENT
MNGQIBISA -THUSI J
[1] The applicant s, Interactive Risk Management (Pty) Limited (first applicant) and
Saxonwold & Parkwood Residents’ Association (second applicant ), seek, on an
urgent basis, the following relief:
Part A
1.1 That pending the finalisation of Part B of this application, the first
respondent , City of Johannesburg Metropolitan Municipality be
interdicted from:
1.1.1 considering and/or approving any consolidation application to
consolidate the subject properties;
1.1.2 considering and/or approving any site development plan/ s in
respect of ERVEN 7[...] and 7[...], Parkwood, Johannesburg (the
subject properties), to make provisions for the proposed
development;
1.1.3 considering and/or approving any building plans on the subject
properties to make provisions for the proposed development;
1.1.4 taking any action to give effect to the approval of the removal
application or rezoning application on the subject properties.
1.2 That, pending the finalisation of P art B of this application, the second
respondent , Saxon Square Development (Pty) Limited , be interdicted
from commencing and/or continuing with any earthworks and/or
construction on the subject properties to make provisions for the
proposed development based on the approval of the removal
application and the rezoning application on the subject properties.
Part B
3. That the first respondent’s Municipal Planning T ribunal’s ( MPT )
decisions dated 4 November 2021, approving the removal of restrictive
title conditions in respect of the subject properties and approving the
rezoning of the subject properties to “residential 4”, subject to certain
conditions, be reviewed and set aside.
4. That the first respondent’s Municipal Appeal T ribunal’s ( MAT ) decision
and reasons received on 13 November 2023, to dismiss the appeal
submitted by the second applicant against the decision of the MPT, be
reviewed and set aside.
5. That the promulgation of amendment scheme 01 -18713 and removal of
restrictive title conditions 13 4/2023/2018, published on 31 January
2024 in the Gauteng Provincial G azette, confirming the decision stated
in the paragraphs above, be reviewed and set aside ,alternatively be
declared null and void.
6. That, insofar as it may be necessary, condonation be grante d in terms
of section 9 of the Promotion of Administrative J ustice Act 3 of 2000,
condoning the late bringing of the review application.
7. That any party who oppose this application ( Part A and/or Part B) be
ordered to pay the applicants’ costs, jointly and seve rally, the one
paying the other to be absolved.
[2] The first applicant is the owner of erf 735, adjacent to the subject properties.
Brief f actual matrix
[3] In 2018 the second respondent applied to the first respondent for the approval
of the rezoning of the subject properties, erven 7[...] and 7[...] Parkwood,
Johannesburg in terms of the Spatial Planning and Land Use Management Act
16 of 2013 and the Johannesburg Land Use bylaw and the removal of certain
restrictive title conditions applicable to the subject properties. The applicants
objected to the rezoning and removal of restrictive title conditions. However,
both the city’s Municipal Planning Tribunal and the Municipal Appeal Tribunal
dismissed the applicants’ objections and approved the second respondent’s
application on 29 September 2021 and 6 October 2023, respectively.
[4] Aggrieved by the dismissal of their objections and appeal, on 10 May 2024 the
applicants filed an application, constituting of Part A and Part B, above. In Part
A, the applicants seek an interim interdict prohibiting the first respondent form
approving the second respondent’s development plans and prohibiting the
second respondent from commencing or continuing with construction as
approved by the impugned decisions, pending the determination of Part B of
the application. In Part B the applicant seek the review and setting aside of the
decisions of the MPT and the MAT. The pleadings closed on 11 November
2024 and o nly the heads of argument are outstanding.
[5] It is common cause that, despite the applicants’ pending review application,
towards the end of 2024, construction started in terms of the approved
development plans. On 4 December 2024, the applicants sought an
undertaking from the second respondent that it would stop construction on the
sites until the application was determined. The second respondent refused to
give such undertaking. Construction activities stopped during the builders’
break in mid - December 2024 and commenced in the middle of January 2025.
In light of the second respondent’s refusal not to proceed with construction, the
applicants launched this urgent application on 28 January 2025 and was heard
on 11 February 2025.
[6] The applicants’ review application is based, inter alia, on the following grounds:
6.1 that in processing the second respondent’s development application
there was non -compliance with the mandatory and material procedures
prescribed by an empowering provision and the procedure followed was
unfair.
6.2 that the first respondent failed to take into account the public interest
and/or how the rights of the public would be affected especially with
regards to the negative impact the proposed development would have
on the objectors privacy, property values and peaceful living standards.
6.3 that in processing the second respondent’s development application
there was non -compliance with the mandatory and material procedures
prescribed by an empowering provision and the procedure followed was
unfair.
6.4 that the first respondent failed to take into account the public interest
and/or how the rights of the public would be affected especially with
regards to the negative impact the proposed development would have
on the objectors’ privacy, property values and peaceful living standards.
6.5 that irrelevant facts or aspects were considered and relevant
considerations were not considered.
6.6 that the action was taken arbitrarily or capriciously.
6.7 that irrelevant facts or aspects were considered and relevant
considerations were not considered.
6.8 that the action was taken arbitrarily or capriciously.
Urgency
[7] The second respondent is of the view that urgency is self -created in that the
applicants were aware that construction on the subject propert ies had started
as far back as October 2024 and they failed to bring an urgent application.
On behalf of the applicants the following submissions were made. It was
submitted that even though the review application also included a prayer for
an interim interdict prohibiting the second respondent from commencing or
continuing with construction, the matter was at that stage not urgent as
construction had not started. It is the applicant’s averment that the matter
became urgent in that despite the pending revie w application and applicants’
request to the second respondent to stop construction pending the finalisation
of the review application , the second respondent started with construction
which if allowed to continue, would render the review application moot and
academic and should be struck from the roll with costs.
[8] In considering whether to allow this matter to be heard on an urgent basis the
main considerations to be taken into account are the prejudice the applicant s
might suffer if the order is not granted and the prejudice the second
respondent might suffer if the order is granted by the abridgement of the
prescribed time period.
[9] Taking into account that the decision precipitating the launching of these
urgent proceedings was as a result of the second respondent commencing
with construction in the face of a pending the determination of the review
application, I am satisfied that there was no undue delay in bringing this
application. I am also satisfied that the applicants have shown sufficient
cause and grounds for the matter to be heard on an urgent basis.
Interim interdict
[10] An applicant seeking an interim interdict has to satisfy the following
requirements , namely that :
10.1 it has a clear or prima facie right, though open to some doubt;
10.2 there is a reasonable apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually granted;
10.3 the balance of convenience favours the granting of interim relief; and
10.4 there is no other alternative satisfactory remedy available.
[11] In Erikson Motors (Welkom) Ltd v Protea Motors Warrenton and Another1 the
Appellate Division as it then was held that none of the above -mentioned
requirements were decisive.
[12] With regard to a prima facie right, in Simon NO v Air Operations of Europe AB
and Others2 the court stated that:
“The accepted test for a prima facie right in the context of an interim
interdict is to take the facts averred by the applicant, together with such
facts set out by the respondent that are not or cannot be disputed, and
to consider whether having regard to the inherent probabilities the
applicant should on those facts obtain final relief at the trial. The facts
set up in contradiction by the respondent should then be considered,
1 1973 (3) SA 685 (A).
2 1999 (1) SA 217 (SCA).
and if serious doubt is thrown upon the case of the applicant he cannot
succeed.”
[13] Furthermore, if the applicant’s prospects of success in the review application
are weak, the balance of convenience should favour of the granting of the
interim interdict. The applicants have raised several grounds for the review of
the first respondent. If any of those grounds is reviewed, would justify the
granting of the review.
[14] On behalf of the applicants the following submissions in brief were made . The
applicants contend that they have a prima facie right in that they have a right
to administrative action in order to avoid the proverbial horse from bolting. It
was submitted that by commencing and continuing with the construction
based on an impugned decision, the second respondent is infringing on
applicant s’ right to have the review heard. Further it was submitted that the
actions of the second respondent render the applicants ’ review application
moot in that it would be difficult for a court to ultimately he ar the review
application which relates mainly to in an attack on the relevant municipal
approvals.
[15] Further , it was submitted that the applicant s have reasonable apprehension of
irreparable harm if the interim interdict is not granted, in that it will suffer
prejudice where the impugned administrative action continues unabated and
contrary to the applicants ’ rights to just and fair administrative action.
[16] It is further the applicant s’ contention that should the interim interdict not be
granted and the applicant s are successful in with the review application, the
applicant s will not have a satisfactory remedy available in view of the fact that
courts are re luctant to gr ant demolition orders . Furthermore, it is the
applicants’ contention that balance of convenience is in favour of the interim
interdict being granted in view of the fact that very little progress has been
made in the development of the subject properties the prejudice to be suffered
by the applicants is more significant than that would suffered by the second
respondent if the construction is stopped. Further, that the review application
has prospects of success in that the building the second respondent is
constructing is a six stor ey building which would be located in an area made
up of substantially single -storey buildings and building would be a monstrosity
in such location.
[17] On behalf of the second respondent it was argued that the a pplicants have
not shown that they have a prima facie right for the inter im interdict to be
granted. C ounsel submitted that if the interim entered it is granted and
construction is allowed to continue , should the review application be
determine d in favour of the applicants , the court c ould grant any order in
terms of section 172 (1)(b) which it deems to be just and equitable, including
an order for the demolition of the building .
[18] It was further submitted on behalf of the second respondent that the balance
of convenience favours the second respondent in that construction has
already started and any interruption in the process would cost the second
respondent huge amounts in relation to contracts it had included, including the
retrenchment of workers.
[19] I am of the view that the applicants failed to substantiate its claim to a prima
facie right. Nothing turn s on the fact that the applicant s have instituted review
proceedings against the impugned decision. In the National Treasury and
Others v Opposition to Urban Tolling Alliance an Others3, the court stated that:
“[50] Under the Setlogelo test, the prima facie right a claimant must
establish is not merely the right to approach a court in order to review an
administrative decision.4 It is a right to which, if not protected by an
interdict, irreparable harm would ensue. An interdict is meant to prevent
future conduct and not decisions already made. Quite apart from the
right to review and to set aside impugned decisions, the applicants
should have demonstrated a prima facie right that is threatened by an
3 2012(6) SA 223 (CC).
4 Setlogelo above n 28 at 227.
impending or imminent irreparable harm. The right to review the
impugned decisions did not require any preservation pendente lite. ”
[20] Inasmuch as the applicants’ right to just administrative action, such right will not
be negated if the interim interdict is not granted and the second respondent is
allowed to proceed with the construction in light of the provisions of section
172(1)(a ) of the Constitution.
[21] The applicant has also not shown that a reasonable apprehension of harm
exists if the interim interdict is not granted and final relief sought is eventually
granted. Nothing stops the reviewing court, if the applicant s are successful,
from making an order which is just and equitable in the circumstances . The
balance of convenience favour s the second respondent in that construction has
already started and the costs the second respondent would incur, both
financially and otherwise if the interim interdict was granted and construction
halted until the review application is determined.
[22] In the result, I am satisfied that the applicant s have not established the
requirements of an interim interdict and that the application ought to fail.
[23] It is trite that costs follow the cause.
[24] In the result the following order is made:
1. The application is dismissed.
2. The applicant to pay the costs consequent on the employment of senior
Counsel.
N P MNGQIBISA -THUSI
Judge of the High Court
Date of hearing : 11 February 2025
Date of Judgment : 03 March 2025
Appearances
For Applicant s: Adv J A Venter (instructed by JLR Attorneys & Associates )
For Second Respondent: Adv P Stratherm SC, with Adv S Mushet (instructed by
Strauss Scher Attorney s)