SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 23747 /2024
In the matter between:
STELLENBOSCH INTEREST GROUP Applicant
and
PROVINCIAL MINISTER OF LOCAL GOVERNMENT,
ENVIRONMENTAL AFFAIRS AND
DEVELOPMENT PLANNING
DIRECTOR: DEVELOPMENT MANAGEMENT
(REGION 1) IN THE DEPARTMENT OF
LOCAL GOVERNMENT, ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT PLANNING First Respondent
Second Respondent
STELLENBOSCH MUNICIPALITY
BOTMASKOP FYNBOS ESTATE (PTY) LTD
Third Respondent
Fourth Respondent
HERITAGE WESTERN CAPE
Fifth Respondent
RESET PROPERTIES PTY (LTD)
BOTMASKOP HOMEOWNERS’ ASSOCIATION
GENERAL FOOD HOLDINGS (PTY) LTD
SIMON CHRISTOFFEL BOSCH
KINTRO CONSTRUCTION CC
GRAND MONTET (PTY) LTD
VILLABERNER (PTY) LTD
THOKOZILE TRUST
GREENWORLD TRUST
NGALI TRUST
THEODORE LE ROUX DE KLERK
KOOT SWART TRUST
DMM TRUST
MARKUS OLIVER HUBER
BKE XI (PTY) LTD
CORNELISDAL PROPERTIES PTY LTD
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
Twelfth Respondent
Thirteenth Respondent
Fourteenth Respondent
Fifteenth Respondent
Sixteenth Respondent
Seventeenth Respondent
Eighteenth Respondent
Nineteenth Respondent
Twentieth Respondent
Twenty -first Respondent
E. D. DULK
OCEANIC INVESTMENTS PTY LTD
SCARLET INVESTMENTS PTY LTD
MOONRISE INVESTMENTS PTY LTD
WHITELILLY INVESTMENTS PTY LTD
CULTURED INVESTMENTS PTY LTD
NGALA INVESTMENTS PTY LTD
SUNPOWER INVESTMENTS PTY LTD
SMARTWAY INVESTMENTS (PTY) LTD
RED SUN INVESTMENTS (PTY) LTD
PUNCH POWER INVESTMENTS (PTY) LTD Twenty -second Respondent
Twenty -third Respondent
Twenty -fourth Respondent
Twenty -fifth Respondent
Twenty -sixth Respondent
Twenty -seventh Respondent
Twenty -eighth Respondent
Twenty -ninth Respondent
Thirtieth Respondent
Thirty -first Respondent
Thirty -second Respondent
Date of Hearing : 11 February 2025
Further submissions and affidavits: 1 April 2025
Date of Judgment : 16 April 2025
Coram : Holderness J
JUDGMENT
HOLDERNESS J
Introduction
[1] This court is tasked with determin ing whether an interim interdict should be
granted to preserve the status of the Fijnbosch Residential Estate , a 77-unit
residential development (the development) located on the slopes of the scenic
Botmaskop mountain above Helshoogte at Portion 2 of Farm Amoi No 490,
Botmaskop, Stel lenbosch (the property) .
[2] To date, only the roadworks and the reservoir have been constructed on the
property . Not a single dwelling or other above -ground buil ding has yet been
constructed .
[3] The interdict sought , in terms of Part A of the application, is to halt any above
ground construction work on the property , pending review proceedings in terms of
which the applicant , the Stellenbosch Interest Group (SIG) challenges the amended
environmental authorisation granted by the second respondent , the Director of
Development Management in the Department of Local Government, Environmental
Affairs Development Planning (the Department ) on 18 February 2021 (the 2021 EA).
[4] SIG asserts that interdictory relief is necessary to prevent environmental
damage and degradation , as well as to prevent its – and the public’s – entitlement to
lawful, reasonable , and procedurally fair administrative action being rendered
nugatory.
The parties
[5] SIG is a voluntary association comprised of concerned citizens from the
Stellenbosch area. It was established in 1996 and is registered with Heritage
Western Cape as a body dedicated to heritage conservation .
[6] According to SIG, it acts in this matter:
6.1 In its own interest and in the interes ts of its members.
6.2 In terms of s 38(c) of the Constitution of South Africa, 1996 (the
Constitution) and section 32(1) of the National Environmental
Management Act, 107 of 1998 (NEMA) , on behalf of Stellenbosch
residents , who have rights in terms of s 24 of the Constitution and the
legislation enacted to give effect to s 24, to: (i) protect the environment
for the benefit of present and future generations; and (ii) participate in,
and comment on, developments which affect their envir onmental rights .
6.3 In terms of s 38(d) of the Constitution and s 32(1) of NEMA in the public
interest.
[7] The first respondent is the Minister for Environmental Affairs and Development
Planning in the provincial government of the province of the Western Cape . The
current M inister is Mr Anton Bredell (the Minister).
[8] The second respondent holds the position of Director: Development
Management (Region 1) within the Department. The current incumbent of this
position is Mr Zaahir Toefy . He is cited as he is the decision maker in one of the
decisions currently subject to review in this application.
[9] The third respondent is Stellenbosch Municipality , the local authority in whose
jurisdiction the property is situated.
[10] The fourth respondent is Botmaskop Fynbos Estate (Pty) Ltd (Botmaskop) .
Botmaskop is the owner of the property and the developer of the Fijnbosch
Residential Estate development .
[11] The fifth respondent is Heritage Western Cape (HWC) , a provincial authority
for heritage resources that was established by the Minister of Cultural Affairs and
Sport of the government of the Western Cape Province in South Africa. No relief is
being sought against HWC. It is cited as it has an interest in the conduct of
Botmaskop and the remedy sought by SIG.
[12] The sixth respondent is Reset Properties (Pty) Ltd , the former owner of the
property (Reset) . Botmaskop purchased the property from Reset on 1 June 2022 .
Transfer was registered on 23 March 2023. SIG joined Reset as a respondent , as it
alleges that Rese t intentionally deprived Interested and Affected Parties (IAPs) of
their right to appeal against one of the decisions under review .
[13] The Botmaskop Homeowners’ Association is t he seventh respondent . The
registered owners of individual erven that are part of the Fijnbosch Residential Estate
development are the eighth to thirty -second respondents.
[14] The interdictory relief is opposed only by Botmaskop . None of the purchasers
or owners of erven on the property have opposed the Part A relief.1
Factual background
[15] In 2003 , a developer, Fun Deals Sixteen (Pty) Ltd (Fun Deals) , bought the
property, the 30.6901 -hectare farm Amoi on the slopes of Botmaskop , for a purchase
price of R3,135 million.
[16] On 1 November 2003 , the Department of Environmental Affairs and
Development Planning granted Fun Deals an environmental authorisation (2003 EA)
to construct the original development, which was to be a small mountain resort , on
the property . The resort was to consist of 10 rooms, 15 chalets, a small gymnasium,
a swimming pool, and a conference facility (the original development) .
[17] The 2003 EA was granted in terms of s 22 of the Environmental Conservation
Act 73 of 1989 (the ECA) , read together with the corresponding regulations thereto.
The 2003 Environmental Assessment did not specify the property's development
footprint in square met res.
[18] The 2003 EA was subject to several conditions, including that the original
development comply with an Environmental Management Plan (EMP) and
1 Four of the purchasers have delivered affidavits in which they made it clear that they abide by the
outcome of Part A but sought to place certain facts before the Court.
mitigation/rehabilitation measures , which w ould includ e provision for the complete
removal of all alien invasive plants and fynbos restoration programmes.
[19] One of the key factors whic h, according to SIG, affected the decision to grant
the 2003 EA , was that most of the land on the property had been used to produce
Eucalyptus trees and showed clear evidence of disturbance . Additionally , a portion of
the land had been used for an informal 4x4 track , which caused further disturbance.
[20] The 2003 EA recorded that ‘The study site due to extensive degradation
definitely does not contribute towards the natural beauty of the area ’, The proposed
clearing of alien vegetation and restoration of fynbos would irrefutably enhance the
general landscape.
[21] SIG, as an IAP , provided qualified support for the original development ,
subject to certain conditions . These conditions included that the footpri nt of the
buildings did not exceed the footprint reflected in the original developer's plans, that
the buildings were to blend into the natural environment, that the property be
landscaped and developed with fynbos and natural plants in a nature reserve
environment, and that the final plans be submitted to SIG within two years prior to
their submission to the local authority.
[22] The 2003 EA stipu lated that it would lapse if the development activity did not
commence within two years of the date of the decision. The original development
never got off the ground.
[23] On 3 November 2005 a certain Mr Mark Sassman (Mr Sassman) , submitted a
notification of project commencement, on behalf of Ecosense CC, which the Minister
‘noted’ on November 14, 2005 . In the notification Ms Sassman recorded that
‘…works have been started on the project within the required ROD 2 Year period as
of the Date . As agreed, works is being undertaken … and tree fellin g and clearing is
being undertaken within the requirements of the framework for rehabilitation.’
[24] SIG contends that as this notification was not issued within two years of the
2003 EA (dated 1 November 2003) , and was issued eleven months before the
zoning approval was granted, the 2003 EA has lapsed.
[25] On 5 October 2006 the Minister approved the rezoning of the prop erty from
Agricultural Zone I , a zoning which prioritises the protection of agriculture,
recogni sing it as an important economic, environmental, and cultural resource, while
also allowing for single -family dwelling on the property , to Resort Zone II , which
typically refers to a specific type of land use classification, denoting areas primarily
intended for recreational and tourist -related activities, beyond the scope of typical
‘single residential’ or ‘general business’ areas . The rezoning was restri cted to the
footprint of each bu ilding.
The First Non-Substantive Amendment Application
[26] Reset applied on 17 April 2019 , for what was indicated to be a non-
substantive amendment under Part I of the Environmental Impact Assessment
Regulations, 2014 (EIA regulations) of the 2003 EA (the 2019 application).
[27] The 2019 application was intended to modify the approval to permit the
construction of a residential estate, rather than a resort development . The 2019
application proposed a residential estate with a development footprint of 33 930 m2.
The proposed estate consist ed of 67 units on 67 erven .
[28] In a letter to Reset dated 11 June 2019 the Department advised that the 2019
amendment application necessitated the more rigorous Part II Substantive
Amendment Application, which required public participation under the EIA
Regulations, because it represented a change in the nature and scope of the
development that had been approved in 2003.
[29] As a result, Reset’s Environmental Management Consultant (EMC ) proceeded
with a Part II application . Notice of the Part II application was given to the IAPs.
[30] On 24 October 2019 SIG set out its objection to the proposed amendment of
the 2003 EA , which included the following grounds :
30.1 The property is situated on a steep undulating mountain slope which is
listed in the Stellenbosch Municipal Heritage Inventory (SMH Inventory)
as a Grade II scenic route and is referred in the SMH Inventory as lying
within a foothill and green transition a rea.
30.2 The site is not described as urban .
30.3 The site is unsuitable for a residential estate .
30.4 The proposed development is in direct conflict with the spirit and
intention of the SMH inventory .
30.5 The visual impact of the development cannot be mitigated .
30.6 It is national policy to implement integrated and open communities and
the proliferation of gated communities, such as the one proposed, is not
supported .
30.7 The proposed development will extend the urban sprawl far beyond the
existing urban area of Stellenbosch .
30.8 The development footprint will disturb the natural beauty and landscape
of the Botmaskop mountainside .
The Second Part I ( Non-Substantive) Amendment Application
[31] In October 2020, Reset submitte d a Part I ( Non-Substantive) Amendment
Application to amend the 2003 EA , for the development of a gated residential estate.
This application did not require a public participation process .
[32] On 18 February 2021 , in what appears to have been an inexplicable reversal
of its previous position , the D epartment approved the 2021 EA as a non -substantive
Part I application .
[33] According to SIG it was unaware of the 2021 EA amendment approval until 17
May 2024. No IAPS were notified of the Part I application.
[34] The 2021 EA provided for inter alia the following amendments of the 2003 EA:
34.1 The description of the project as the proposed construction of a small
mountain resort on the property was replaced with the proposed
construction of Fijnbosch Residential Estate .
34.2 The amendment of the ‘description of activity ’ by replacing the existing
description of ‘an upmarket lodge with 10 rooms, 15 chalets and a
conference facility as well as a small gymnasium and swimming pool …’
with the following:
‘The project entails the development of 46 residential units and 14
multi -use residential erven (containing 31 dwellings) on Portion 2 of the
Farm Amoi No. 490, Botmaskop, Helshoogte Pass, Stellenbosch. The
77 residential units and associated infrastructure will have a
development footprint of 36 282m2’
[35] The upshot of this is that SIG only became aware that the 2021 EA had been
granted, without public participation and as a non -substantive amendment ( which
applies only where there is no significant change in the nature and scope of the
proposed development) , three years after the approval had been granted to change
the development from a small mountain resort to a 77 unit residential estate.
[36] The nub of SIG’s complaint is that as the Botmaskop mountainside is a
location of exceptional natura l beauty, lies within a Grade II cultural I landscape, and
the nature and impact of developments in the area are matters of significant public
interest and importance , an extensive residential development on the slopes of the
mountain should never have bee n approved without the solicitation and
consideration of the public’s views.
[37] The Department ’s stance , as stated in its letter dated 30 November 2020 , is
that the 2019 amendment application had expired by the conclusion of January 2020 ,
and t he 2021 EA was only granted after Reset amended the amendment proposal to
align it with the authority granted under the 2003 EA . It asserts that the 2003 EA was
subseq uently justified in being amended as a non -substantive amendment .
[38] Save that an updated Environmental Management Plan (EMP ) was to be
provided by Reset, including an updated rehabilitation and fire management plan, all
other conditions contained in the 2003 EA remained unchanged and in force.
[39] SIG stated that the botanical study referenced in the 2021 EA concluded that
the property had recovered over the ensuing 17 years. It also emphasised that the
environmental conditions prevaili ng on the property, and therefore the impact of any
proposed development, were significantly different in 2021 than they were in 2003.
[40] Botmaskop ’s view is that this is a misconstruction of the original statement
which provides that ‘the proposed residential development will have a lower visual
and traffic impact. The botanical study concluded that although the site has
recovered over the proceeding 17 years, the pioneer species present on the site are
not representative of the original ve getation cover, is not deemed as sensitive, and
the impact is therefore still rated as low.’
Urgency
[41] The relief in Part A was initially enrolled for hearing on an urgent basis on 4
December 2024. The matter was postponed for hearing on the semi -urgent roll-on 11
February 2025. Mr Rosenberg SC, who appeared together with Mr Engelbrecht on
behalf of Botmaskop, accepted that the merits of the matter are inextricably woven
with the issue of urgency .
[42] SIG has undertaken to motivate an expedited hearing of the review relief. It
contends that if construction is allowed to continue , the building work will , by late
2025 /early 2026 have reached the point where there are no prospects of obtaining
an effective r emedy , and SIG will be unable to vindicate the rights it asserts.
Botmaskop does not appear to seriously dispute that the Part A relief is indeed
urgent.
[43] I am satisfied that the significant interest that all parties have in the outcome of
the inter dict application, as well as the actions taken by SIG after it had exhausted
the internal appeals available to it, warrant the condonation of any delay in launching
the application, despite the delay in launching it. In the interest of all parties involved ,
it is imperative that Part A of the application be addressed promptly.
Part B - The Review Relief
[44] The review relief which SIG seeks under Part B of the application is as
follows:
44.1 An order declaring that the 2003 EA had lapsed or was no longer valid
in February 2021 .
44.2 In the alternative, an order declaring that the 2021 EA has lapsed in
that the amended activity did not commence within two years of
18 February 2021 .
44.3 In addition to th is relief , orders declaring that:
44.3.1 The development work being undertaken by Botmaskop on Erf
3[...] and portion of the Remainder of Farm 333 is unlawful in
that no environmental authorisation has been granted for it .
44.3.2 Botmaskop and its predecessors acted unlawfully in failing to
inform IAPs of the 18 February 2021 decision .
44.4 Orders reviewing and setting aside:
44.4.1 The decision of 7 June 2024 by the first respondent , the
Provincial Minister of Local Government, Environmental Affairs
and Development Planning (‘the MEC ’), not to condone the late
filing of the applicant’s internal appeal, and to dismiss the appeal
dated 4 June 2024 .
44.4.2 The decision of the MEC of 11 July 2024 not to condone the late
filing of the applicant’s internal appeal, and to dismiss the appeal
dated 4 July 2024 .
44.4.3 The Municipality’s council approval of the land swop on 30 July
2024 .
44.4.4 The MEC’s decision of 18 February 2021 to approve the
application to amend the 2003 EA.
[45] SIG contends that it has shown, at least prima facie , that:
45.1 The 2021 EA was procedurally unfair, as well as otherwise irregular
and unlawful, due to the lack of public participation .
45.2 The 2003 EA lapsed (and could thus not subsequently be amended) .
45.3 The 2020 application for an amended EA was seemingly deliberately
deceptive .
45.4 The necessary preconditions or jurisdictional facts did not exist .
45.5 The 2021 EA is also otherwise unlawful .
45.6 The 2021 EA has anyway lapsed .
45.7 The 2021 EA has in any event, not been complied with.
The present state of the development
[46] According to Botmaskop , from its stance as the developer, the property has ,
been fully developed . A fence has been installed along the entire perimeter of the
estate , all internal and connecting roads have been constructed , and entrance gates ,
a security building, the homeowners’ associations administrative office and a water
reservoir have been built.
[47] Botmaskop has successfully installed all bulk services and related
infrastructure. All the erven have been cleared , and service connection points have
been installed at each e rf.
[48] Subsequent to the planning approval, 29 of the residential erven have been
sold, of which 17 were transferred by September 2024. The remaining 12 erven were
scheduled for transferred by the end of 2024.
[49] In so far as the asserted rights of members of the public such as hikers,
runners and mountain bikers to freedom of movement and access is conce rned,
Botmaskop contends that members of the public do not have right of access to
Botmaskop’s private property. The site is enclosed by a fence and accordingly an
interdict preventing future construction work will be ineffective in restoring or
maintainin g any reported access rights or rights of movement.
[50] More fundamentally, according to the Stellenbosch Trail Fund, a nonprofit
organisation that represents hikers, runners and mountain bikers in the area has
been supportive of the land swap forming par t of the development. Changes and
additions to the trails on Botmaskop to accommodate the land swap were finalised by
November 2023 , and no further trail modifications will be required.
[51] Not only are the environmental authorisations being challenged by the
applicant in this matter, but the property is also undergoing development because of
a variety of planning approvals that have granted it development rights, as well as
various building plan approvals. Part B of this application has not been challenged in
relation to the planning and building approvals, rezoning, or subdivision of the
property.
[52] Botmaskop contends , firstly, that the rezoning and subdivision applications for
the deve lopment of the property must necessarily have alerted SIG that the
concomitant environmental authorisation had either been granted or was imminently
forthcoming, and s econdly, that the granting of the rezoning and subdivision of the
property has irremediably altered its land use profile.
[53] SIG asserts that ‘the interests of the environment, inclusive of the natural and
cultural heritage should be determinative.’ In support thereof, it relies on the
following rights:
53.1 The environmental ri ghts entrenched in s 24(a) and (b) of the
Constitution as given effect to in NEMA, and the EIA regulations.
53.2 The heritage and cultural identity rights established in the National
Heritage Resources Act, 25 of 1999 (NHRA ), particularly the heritage
management rights in section 38 thereof .
53.3 Section 14(2) of the Local Government: Municipal Finance
Management Act, 56 of 2003 ( the MFMA) .
53.4 The asserted rights of members of the public, particularly hikers,
runners and mountain bikers to freedom of movement and access to
land adjacent to the Delaire Graff Wine Estate and the Banhoek Valley .
53.5 The right to administrative action that is lawf ul, reasonable and
procedurally fair entrenched in s 32 of the Constitution and given effect
to in s ections 3, 4 and 6 of the Promotion of Administrative Justice Act 3
of 2000 (PAJA ).
[54] Botmaskop contends that , save for the movement and access rights of
members of the public, it is evident that t he right which SIG asserts is the right to
enforce or demand compliance with the constitutional and statutory provisions
referred to through the review of the imp ugned administrative decisions for
compliance with those provisions. Botmaskop asserts that this is not a right which
necessitates protection by way of an interim i nterdict , and any attempt to suggest
otherwise, is inadequately supported.
The issues
[55] A central issue that arises from the for egoing , is whether an in terdict at this
stage will serve to protect any purported heritage or environmental integrity of the
property from harm . Botmaskop contends that an interdict at this stage will only serve
to obstruct and impede the completion of the environmental rehabilitation work that it
is currently conducting .
[56] Even if th is court finds SIG has established a prima facie right, the issue which
will still need to be determined for an interim interdict to be granted pending a review
is whether it has demo nstrated that if the development of the property proceeds, it
will suffer irreparable harm other than the right to have the impugned EAs and
decisions reviewed. This will be addressed in greater detail below.
Applicable law
Requirements for an interim interdict
[57] The requirements for an interim interdict are trite . They were laid down more
than a century ago in Setlogelo v Setlogelo ,2 and reaffirmed in a long line of
decisions, including OUTA , as follows:
‘...The test requires that an applicant that claims an interim interdict must
establish (a) a prima facie right even if it is open to some doubt; (b) a
reasonable apprehension of irreparable and imminent harm to the right if an
2Setlogelo v Setloge lo 1914 AD 221 at 227.
interdict is not granted; (c) the balance of convenience must favour the grant
of the interdict and (d) the applicant must have no other remedy."
[58] In general, the stronger the applicant’s prospects of success, the less the
need for the balance of convenience to favour the applica nts; the weaker the
prospects of success, the greater the need for the balance of convenience to favour
him.3
[59] The court has a general and overriding discretion to grant or refuse an
application for interim relief.4
A prima facie right
[60] In Pikoli v President of the Republic of South Africa ,5 the court held that:
‘When considering whether to grant or refuse an interim interdict, the court
seeks to protect the integrity of the proceedings in the main case. The court
seeks to ensure, as far as is reasonably possible, that the party who is
ultimately successful will receive adequate and effective relief. The court itself
has an interest to ensure that it will ultimately be in a position to grant effective
relief to the successful party. For reas ons that will appear in due course, the
issues in the main application and also in this application are constitutional
issues. In such cases the court considering whether to grant or refuse an
interim interdict must also bear in mind that the courts have a constitutional
obligation to uphold the Constitution and to 'declare that any . .. conduct that is
inconsistent with the Constitution is invalid to the extent of its inconsistency'.
The court must also bear in mind that not only the parties, but society as a
whole have an interest in upholding the Constitution and that relief in cases of
constitutional breaches must vindicate the Constitution. ’6
3 Olympic Passenger Service (Ply) Ltd v Ramlagan 1957 (2) SA 382 (D) at 383D -F.
4 Knox D 'Arc y Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A) at 361H - 362E.
5 Pikoli v President of the Republic of South Africa 2010 (1) SA 400 (GNP) (Pikoli)
6 Ibid at 404A -E. The first part of this quote was referred to, with evident approval , in EFF v Gordhan
supra at para 47, fn.44.
[61] SIG is seeking constitutional and administrative law relief. The test is therefore
whether it has established at least a prima facie case for the relief which it seeks,
even if open to some doubt. In addition, to satisfy the irreparable damage
requirement, SIG must demonstrate that it will be unable to obtain adequate and
effective relief in the future if interim relief is not granted.
Have the requirements for an interim interdict been satisfied?
[62] I turn no w to consider whether the requirements for an interim interdict have
been satisfied in the circumstances of this case, and whether SIG has established a
case for the relief it seeks in part A of the application.
Prima facie right
[63] The first requirement for an interim interdict is the showing of a prima facie
right, even if ‘open to some doubt .’7
[64] SIG must show, at a minimum, that it has a legitimate legal claim or right that
warrants protection until a complete trial or hearing can take place. This requirement
recognises that although the court does not determine the ultimate merits of the case
at the interim stage, there must be a reaso nable probability that the applicant's legal
position is both valid and enforceable.
[65] The phrase ‘even if open to some doubt ’ recognises that the prima facie right
does not require absolute certainty or unanimous agreement. The respondent may
raise valid doubts ; however, it is essential for SIG to adduce credible evidence to
persuade the court that their review has a strong chance of success , and that they
are entitled to temporary relief until a final determination of the review proceedings.
[66] It is not necessary to establish this right upon a balance of probabilities.
Instead, subject to the qualification mentioned below, the test is the following:8
7 Eskom Holdings Soc Ltd v Vaal River Development Association (Pty) Ltd and Others 2023 (5) BCLR
527 (CC) ; [2022] ZACC 44 (23 December 2022) para 253; Webster v Mitchell 1948 (1) SA 1186 (W) at
1189
‘The proper manner of approach … is to take the facts as set out by the
applicant, together with any facts set out by the respondent which the
applicant cannot dispute, and to consider whether, having regard to the
inherent probabilities, the applicant could on those facts obtain final relief at
the trial. The facts set up in contradiction by the respondent should then be
considered. If serious doubt is thrown upon the case of the applicant, he could
not succeed in obtaining temporary relief, f or his right, prima facie established,
may only be open to ‘some doubt’. But if there is mere contradiction, or
unconvincing explanation, the matter should be left to trial and the right be
protected in the meanwhile, subject of course to the respective pr ejudice in
the grant or refusal of interim relief. ’
[67] This test has been amplified slightly by a Full Bench of this division Gool v
Minister of Justic e,9 as follows: ‘ the criterion on an applicant’s own averred or
admitted facts is: should (not could) the applicant on those facts obtain final relief at
the trial. ’ That approach has been endorsed by the Supreme Court of Appeal in
Simon NO v Air Operations of Europe AB .10
[68] SIG contends that in Part A of the application it is not merely asserting a right
to approach a court to challenge an administrative decision ,11 it is instead seeking to
ensure that:
68.1 Its rights, along with those of its members as well as the public, to
lawful, reasonable , and procedurally fair administr ative action, as
entrenched in s 33 of the Constitution and given effect to through
PAJA, are not rendered nugatory .
8 Webster v Mitchell supra at 1189; see too Gool v Minister of Justice 1955 (2) S A 682 (C) at 688D -E.
9 Gool v Minister of Justice 1955 (2) SA 682 (C) at 688C -F
10 Simon NO v Air Operations of Europe AB 1999 (1) SA 217 (SCA) at 228F -I
11 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223
(CC); 2012(11) BCLR 1148 (CC) para 50 (OUTA).
68.2 Without derogating from the other administrative law rights , its right to
participate in, and comment on, material environmental authorisations
and amendments is respected and honoured .
68.3 The environmental rights enshrined in s 24 of the Constitution and
developed in a range of statutory and regulatory provisions, are also
protected.12
[69] Insofar as environmental rights and interests are concerned, SIG, which has
been a registered IAP in relation to the development of the property since 2003 , inter
alia relies on, and seeks to give effect to:
69.1 The national environmental management principles set out in s 2 of
NEMA .
69.2 Sections 24 (environmental authorisations), 24A (listing activities), 24E
(minimum conditions for environmental authorisations), 24F and 24G
(prohibitions on commencement of specified activities), 24J
(implementation guidelines), 24N and 24O (environmental
management programmes and the applicable criteria) and 32 (standing
to enf orce environmental laws) of NEMA.
69.3 The EIA Regulations,13 issued in terms of NEMA, as amended on 7 April
2017 in Government Gazette 40772 and in particular:
12 See e.g. Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy
and Others 2022 (2) SA 585 (ECG); [2022] 1 All SA 796 (ECG); [2021] ZAECGHC 118 (28 December
2021), where the Court granted an interdict prohibiting the corporate respondents from proceeding
with a seismic survey pending the determination of the final relief sought under Part B (in which the
applicants sought compliance with the National Environmental Management Act). The applicant relied
on its rights to be meaningfully consulted about the seismic survey, as well as their, and the public’s,
statutory rights under the National Environmental Management Act, which they claimed had been
breac hed (see para 8). In this case the court found that the evidence had establishe d that, without
intervention by the court, there is a real threat that the marine life would be irreparably harmed by the
seismic survey. (own emphasis).
13 In other words, the Environmental Impact Assessment Regulations, 2014, published under
GN R982, in Government Gazette 38282 of 4 December 2014 .
69.3.1 Regulation 12 and 13(1) (requiring EA practitioners to be
independent) .
69.3.2 Regulations 17 and 18 (criteria for and checking of EA
applications) .
69.3.3 Regulations 29 and 30 (dealing with the criteria for amendments
of an EA that do not change the scope of an existing EA) .
69.3.4 Regulation 31 (amendments which change the scope of an
existing EA) .
69.3.5 Regulations 32 and 33 (consideration and determination o f
amendment applications) .
69.3.6 Regulation 41 (setting out procedures for public participation).
This is to be read together with SIG’s rights as an IAP flowing
from the 2003 EA, together with the undertaking by the (then)
developer in the 2019 application for a Part II amendment to
use the historic list of IAPs, which gave rise to SIG’s right or
legitimate expectation that it would be informed of the
amendment to the 2003 EA .
69.3.7 The Listing notices .
69.3.8 The heritage and cultural identity rights established in the
National Heritage Resources Act, 25 of 1999 ( ‘NHRA ’), and
especially the heritage resources management rights
enumerated in section 38 of the NHRA.
[70] With reference to the land swop, SIG also relies on s 14(2) of the MFMA,
which requires a municipality, before disposing of a capital asset, to take into
account: (a) whether the asset is needed to provide the minimum level of basic
municipal services; and (b) the fair market value of the asset and the economic and
commun ity value to be received in exchange for it.
[71] SIG submits that the breaches of the right to lawful, reasonable and
procedurally fair administrative action were not only significant, but would have
materially deleterious effects - not least because the 2021 amendment of the 2023
EA constituted a material change in the nature and scope of the approval, as well as
the footprint of the authorised development.
Prospects of success
[72] In Eskom Holdings SOC Ltd v Vaal River Development Association Ltd and
Others14 the Constitutional Court affirmed that whether an applicant is entitled to
interim relief is decided ‘upon a consideration of the applicant's prospects of success
in obtaining final re lief.’15
[73] It is necessary for me to consider SIG’s prospects of success in the review,
whilst keeping in mind the Constitution al Court’s injunction that the merits of the
review should not be traversed in any detail at the interim interdict stage ,16 and that
SIG would merely need to prevail on one of those grounds in order to succeed with
its review.
[74] It bears mentioning that Botmaskop does not appear to submit that SIG has
not made out a prima facie case at thi s stage.
[75] SIG’s central complaint is that the application brought on 19 October 2020
(the 2020 application) was determined without public participation, despite involving
a material change in the nature and footprint of the 2003 EA and thus, both by virtue
of the requirements of procedural fairness and the dictates of the EIA Regulations,
necessitating a process which involve d full public participation.
14 [2022] ZACC 44
15 At para 67.
16 OUTA at para 31.
[76] SIG contends that In terms of the EIA Regulations, the 2020 application
should have been considered to involve a Part II amendment, which required full
public participation , and that t he public were in any event entitled to comment on the
application, and the proposed amendment, because the ir rights were materially
affected .
[77] It appears, at least prima facie, that SIG’s conten tion that the failure to
determine the 2020 application as a Part II application rendered such procedure
procedurally irregular, bears a prospect of success, as SIG (and other IAPs) were
deprived of their rights to comment on the 2020 application , both at first instance and
on ap peal, and also to appeal timeously against the 2021 EA.
[78] Regarding the further ground of review , namely that t he 2003 EA has lapsed
as the proposed activity did not commenced within the stipulated two -year period , the
argument advanced by Botmaskop , that the notice of commencement of work proves
otherwise appears to be misplaced, as this notice is dated 3 November 2005, and
the development approved on 1 November 2003 never materialised.
[79] Regulation 28(1) of the EIA Regulations (as amended)17 states that:
‘An application for the amendment of an environmental authorisation must be
submitted to the relevant competent authority on condition that the
environmental authorisation is valid on the date of receipt of such amendment
application. ’
[80] The Director of the Department was moreover prohibited from entertaining
the 2020 application in the light of regulation 28(1A) of the EIA Regulations, which
states that:
‘The competent authority shall not accept or process an application for
amendment of an environmental authorisation if such environmental
authorisation is not valid on the day of receipt of such amendment application
17 The amendment was pursuant to GN 326, published in Government Gazette No. 40772, of 7
April 2017 .
but may consider an application for envi ronmental authorisation for the same
development. ’
[81] SIG asserts that the October 2020 application therefore did not comply with
the applicable r egulations, and in such circumstances , there is no basis on which it
could be alleged eighteen (18) years after the approval in 2003 that this EA is still
valid. In my view its contentions in this regard also prima facie enjoys reasonable
prospects of success.
[82] SIG further submits t hat the 2020 application (for an amended EA) is
fraudulent because it is based on a 2015 Site Development Plan (the SDP),
describe d as "the approved Site Development Plan 3 November 2003" , which
appears to be based on a 2006 zoning approval which inter alia does not record the
footprint of the 2003 EA, and does not provide for a small boutique resort and 15
chalets, and instead provides for a residential estate of 51 erven, and at least twice
the footprint allowed by the 2003 EA. The identical plan was then attached to the
2021 EA, even though it was cle arly not the approved 3 November 2003 S DP, as
was claimed.
[83] If indeed the 2003 is found to have lapsed and if there were material
misrepresentations in the 2020 application (for an amended EA), I am satisfied that a
prima facie case has been made out that the necessary preconditions or
jurisdictional facts for the amended authorisation sought by the 2020 application
were absent , and the 2021 EA was may therefore be shown to be invalid ab initio.
[84] As the Supreme Court of Appeal has held: "In the absence of such
preconditions or jurisdictional facts, so it is said, the administrative authority
effectively has no power to act at all.’18
[85] SIG submitted further that the 2021 EA is unlawful because of one or more,
or all, of the following reasons:
18 Eye of Africa Developments (Pty) Ltd v Nicola Shear (‘Shear’) 2012 (2) SA 186 (SCA); [2012] 2
All SA 32 (SCA); 2011 ZASCA 226 (30 November 2011) para 26 and the authorities referred to there .
85.1 The decision maker did not apply his mind, as the 2020 application was
based on false information, which was critical to determine the
development footprin t.
85.2 The decision is unreasonable and irrational as it contradicts the
express provisions of the enabling legislation .
85.3 The decision maker did not take into account the significant change in
the scope, the footprint and the nature and level of impact brought
about by the 2020 application and if it had done so it would never have
considered it as a non-substantive amendment since it entailed a
substantive and material change of the 2003 EA.19
85.4 Several of the conditions of the 2021 EA have not been complied
with.71 For example, there has not been compliance with several of the
conditions of the 2003 EA, that were expressly incorporated into the
2021 EA ; the IAPs were never notified of the approval , and the
development footprint granted in the 2021 EA has been radically
exceeded. The current development footprint amounts to more than 83
000 m 2, whereas the 2021 EA only allowed 36 282m 2 and the 2003 EA
only allowed a footprint of less than 8 800 m 2.
[86] These grounds were dealt with in great detail by SIG, who in my view has
shown, at least prima facie, that the 2021 EA was procedurally unfair and /or irregular
and unlawful due to the lack of public participation, that the 2003 EA lapsed (and
could thus not subsequently be amended), that the necessary preconditions or
jurisdictional facts for the amended authorisation did not exist.
19 Shear v Eye of Africa Development (Pty) Ltd and Others 2010 (5) SA 129 (GSJ); (09/24998)
[2010) ZAGPJHC 46 (18 June 2010) the High Court held that an amendment concerning water use is
a substantial amendment, and the applicable environmental regulations required a full public
participation process to be carried out in accordance with the regulations before a substantive
variation of the original authorisation could be granted (at paras 13 and 14). The matter went on
appeal, where the Supreme Court of Appeal found the decision to amend was void ab initio. Cf Shear
ibid.
[87] In the circumstances I am satisfied that prima facie and based on a
conspectus of the evidence before me, SIG enjoys reasonable prospects of success
both regarding the declaratory relief and the review relief.
THE INDEMNITY ISSUE
[88] As there is a significant overlapping of the issues and relevant legal principles
which arose in relation to the indemnity issue , referred to hereunder , and the
interdictory requirements . I propose to deal with the indemnity issue before turning to
deal wi th the other interdictory requirements.
[89] At the court’s request the parties address ed a brief note regarding whether
SIG is prepared to furnish an undertaking (underwritten by the necessary
guarantees) to pay any damages which may be incurred by Botmaskop, because of
the granting of the requested interim relief, if the applicant is unsuccessful in respect
of the part B rev iew relief.
[90] Whilst the furnishing of an indemnity is not a requirement for an interim
interdict, a court may impose such terms upon the grant or refusal of such relief as it
considers appropriate. It follows that in a proper case an applicant may be required,
as a condition of the grant of its application, to indemnify the respondent for such
damages as it may be found to have sustained because of the interim interdict,
should the main proceedings fail.20
[91] When a party seeking an interim interd ict has strong prospects of success, the
balance of convenience criterion assumes lesser importance, and thus the chances
of an indemnity being appropriate are also diminished.21
[92] The balance of convenience requirement should not be considered in isolation
but in conjunction with the othe r requirements of an interim interdict , to determine
20 Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A) 403D -
F; Shoprite Checkers Ltd v Blue Route Property Managers (Pty) Ltd and Others 1994 (2) SA 172 (C)
184G -185B; Pathways Holdings (Pty) Ltd and Another v Ribeiro and Another 2025 (1) SA 298 (GJ)
[16] – [17] and [21]; Prest, The Law & Practice of Interdicts , p 159 .
21 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) at 383D -G.
whether the Court should exercise its discretion in favour of granting the interim
relief.22
[93] Mr Farlam SC, who appeared on behalf of SIG, emphasised that the potential
harm to a respondent must be the harm that would result from the interdict being
granted and should not be confused or conflated with possible harm that may be
caused by the upholding of the review.
[94] SIG tendered to do everyt hing possible to have the review heard as soon as
possible and thereby minimise any prejudice that might be suffered by Botmaskop
pursuant to any interim relief which were to be granted. SIG further add ed that it
would have no objection to the Court prescr ibing a timetable in any interim order to
ensure that the review is heard expeditiously, and that it would also be amenable to
the court directing that the parties should approach the Judge President or the
Registrar for a hearing date this calendar year. SIG asserts that in the event of the
review being heard before the end of 2025, the financial prejudice to Botmaskop
would be minimised.
[95] Where an applicant is considered to have strong prospects of suc cess, any
harm which might be occasioned to any of the respondents assumes lesser
prominence;23and ‘the impact thereof is neutralised if not negated [by the applicant’s
prospects of success] ’.24
[96] What clearly emerges from the foregoing , and the Eskom decision cited
above, is that the prospects of success in the review, which have been addressed
above, is a crucial aspect to consider in determining whether to grant the interdictory
relief.
[97] The developer’s construction work has been practically completed. The
interdict if granted would not meaningfully (if at all) restrain its own construction and
22 Erasmus , Superior Court Practice , Volume 2, Second Edition, Service 24, 2024, at D6 -16E and the
authorities at footnote 5.
23 Olympic Passenger Service (Pty) Ltd v Ramlagan supra at 383D -G.
24 L’Ormarins (Pty) Ltd and Another v Minister of Mineral and Petroleum Resources and Others [2025]
ZAECGHC 1 (14 January 2025) para 30.
will therefore cause little if any harm to Botmaskop. Botmaskop has stated, in
somewhat vague terms, that it will suffer financial harm, h owever it does indeed
appear that its complaints really refer to the possible harm that may result from the
review, if successful.
[98] Botmaskop relied inter alia on the full court in this division’s decision in Khoin
and others v Jenkins and others and a related matter ,25 where the applicants
premised their application for interim relief on what they claimed were strong
prospects of success in the review , and on the alleged destruction and
transformation of the site which would take place if t he interim relief was not granted.
The court held that what the applicants were really seeking to protect was no more
than their right to review the unlawful decisions in issue. Based on OUTA , this was
held to be insufficient.
[99] Botmaskop asserts that in the present matter, and in the recent line of cases
in this division, the claim advanced by all the applicants has been that further building
work would cause material damage to the right(s) sought to be vindicated in the
review, and that an interim int erdict was necessary to protect against such harm. It
contended that the authority , drawing on OUT A, is clear: to interdict further
construction, prospects of success are insufficient.
[100] I do not understand the full court judgment in Khoin to say that an applicant for
judicial review does not satisfy the prima facie right requirement if it shows that it
enjoys good prospects of success in the pending review. What it does say is that a
right to review the impugned decision on its own does no t suffice.
[101] The right to impugn a decision on judicial review , which is purely a procedural
right, is not appropriately the subject of interim interdictory relief. That is so because
the bringing of a review application is no more than the right tha t everyone must
resort to a legal remedy. Putting up a building pursuant to unlawfully granted
permission does not threaten the right of anyone aggrieved thereby to use the review
procedure to have the unlawfully granted permission set aside.
25 2023 1 All SA 110 (WCC) .
[102] If, how ever, SIG can show that the review enjoys prospects of success, it
would demonstrate that it has an affected substantive right to administrative justice
that is cognisable for interim interdictory purposes pendente lite .
[103] In the context of a case in volving the development of a residential estate, an
applicant’s right to administrative justice will in all probability be rendered nugatory if
it is denied interim relief, and the township is a fait accompli by the time the review
application is heard, if it is upheld.
[104] In South African Informal Traders Forum and Others v City of Johannesburg
and Others; South African National Traders Retail Association v City of
Johannesburg and Others26 in the context of deciding an appeal against an interim
interdict pendente lite , Moseneke ACJ stated, unequivocally, that: ‘A prima facie right
may be established by demonstrating prospects of success in the review.’
[105] OUTA concerned an application to interdict the government from collecting
tolls on already constructed roads. The tolling of the roads was a policy decision by
government concerning the financing and other means necessary to upgrade the
Gauteng metropolitan road traffic network - the sort of decision in respect of which
courts would be wise to show especial deference.
[106] The Constitutional Court in OUTA found it unnecessary to hold that the
applicant in that matter had not made out a prima facie right. Moseneke DCJ said
that:
‘Given the outcome we reach on other grounds, we need not resolve, for
present purposes, whether a prima facie right has been proven. We assume,
without deciding, that the High Court properly found that the respondents had
established a prima facie right. Our reluctance to make a definitive finding on
26 2014 (4) SA 371 (CC) at para 25 and the cases cited at fn. 24.
the existence of a prima facie right is consistent with our approach not to
reach the review grounds.’27 (My emphasis.)
[107] There is a well -documented reluctance by appellate courts in the relatively
rare c ircumstances that they entertain appeals against interim interdicts pendente lite
to engage unnecessarily in the merits of pending reviews , to avoid pre -empting the
outcome of the review by saying anything that the lower court later to be seized of
the review might consider to be binding. A single judge in the High Court seized of an
interim interdict application is not in th e same position.
[108] The salient rationale in OUTA was to direct attention to the importance of
courts being sensitive about intruding upon the separation of powers when deciding
whether to grant interim interdictory relief, especially when policy laden decisions
were in issue.
[109] In ITAC28 Moseneke DCJ said:
‘Where the Constitution or valid legislation has entrusted specific powers and
functions to a particular branch of government, courts may not usurp that
power or function by making a decision of their preference. That would
frustrate the balance of power implied in t he principle of separation of powers.
The primary responsibility of a court is not to make decisions reserved for or
within the domain of other branches of government, but rather to ensure that
the concerned branches of government exercise their authority within the
bounds of the Constitution. This would especially be so where the decision in
issue is policy laden as well as polycentric.’
[110] There appears to be no basis in law to distinguish matters in which the review
concerns the approval of building development from the well -established principles
applicable in respect of interim interdicts pendente lite in review cases generally.
27 OUTA at para 52.
28 At para 95.
[111] SIG reiterated that it is seeking, in the public interest, to prevent irreparable
environmental damage, and thus relies in part on environmental rights entrenched in
sections 24(a) and (b) of the Constitution.
[112] Of central importance in this matter is that should the review grounds be
upheld, any destruction of the environment caused by the development is not
something that could be remedied by subsequent compensation.
[113] This is not a straightforward so-called ‘construction interdict’ such as in Green
Point Residents and Ratepayers Association and Others v Gartner and Others
(Gartner ),29 where a property owner is seeking to prevent a neighbour from
constructing a particular building, which is alleged to contravene a planning by -law or
zoning scheme. This is a matter of significant public importance.
[114] SIG contends that this is thus the kind of case where, as held by Conradie J in
Corium v Myburgh Park ,30 an interdict is warranted in the public interest despite the
financial loss that a developer would suffer. As this Court held in that case:
‘The balan ce of convenience is perhaps the most difficult part of this decision.
The first respondent will suffer loss if an interdict is granted. This circumstance
deserves sympathetic recognition. On the other hand, I am called upon to
consider not only the intere sts of the applicants, but those of the general
public whose members may be affected.31
Looking at the matter in this way, it is apparent that the grant of the permit
which, as Mr Blignault suggested, effectively negated the earlier proclamation
of the land as a nature area (with a view to its eventual incorporation into the
West Coast National Park) is a matter of great public importance. Nature
parks are a national asset of immense value, perhaps the most valuable
natural resource w e have. I would be loath to permit the first respondent to
29 (4859/2024) [2024] ZAWCHC 159 (3 June 2024).
30 Corium (Pty) Ltd v Myburgh Park Langebaan (Pty) Ltd 1993 (1) SA 853 (C) at 858E -H.
31 Bamford v Minister of Community Development and State Auxiliary Services 1981 (3) SA 1054 (C)
at 1061D -E; Roberts v Chairman, Local Road Transportation Board, Cape Town, and Another (2)
1979 (4) SA 604 (C) at 607E -608D.
continue with any activities in the nature area which might have the effect of
making it more difficult for the applicants, after having made their voices
known, to have the development in the natu re area reversed.’
[115] In Eskom , the apex court described it as the prevention of ‘prejudice that
could not be measured in monetary terms or even mitigated”.32 The threatened
environmental damage would be exacerbated by the fact that, as appears to be
undisputed, the development footprint has been exceeded.
[116] Reverting now to the indemnity issue, SIG, relying on the general rule in
constitutional litigation first laid down by the Constitutional Court in Affordable
Medicines and Others v Minister of Health and Another33 and confirmed in Biowatch
Trust v Registrar Genetic Resources and Others34 (Biow atch), namely that litigants
should, if bona fide , not be ordered to pay costs if unsuccessful, as an award of costs
‘would have a chilling effect on the litigants who might wish to vindicate their
constitutional rights”.35
[117] The Biowatch rule applies to constitutional litigation between a private party
and the state and does not automatically extend to constitutional litigation between
private parties. However, a similar approach invariably applies, as cases like Holz v
University of Cape Town36 appear to indicate.
[118] SIG emphasised the corollary, namely that neither Botmaskop nor any of the
purchasers have themselves made any tender to cover a scenario in which the
interdict is not granted, but the review is successful.
[119] SIG’s principal complaint in the review i s that, as a registered IAP, it was not
consulted in relation to an application with far -reaching environmental consequences,
32 Eskom Holdings v Vaal River Development Association supra para 27 .
33 Affordable Medicines Trust and Others v Minister of Health and Another 2006 (3) SA 247 (CC);
2005 (6) BCLR 529 (CC). This rule has subsequently been applied in numerous cases including,
Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others 2023 (2) SA 68 (CC) .
34 2009 (6) SA 232 (CC).
35 At para 138.
36 2017 (7) BCLR 815 (CC). See, too, in this Court, the judgment in Milnerton Central Residents
Association v Toefy N.O and Others (9/2024) [2025] ZAWCHC 67 (21 February 2025).
as it says it should have been. The right to proper consultation prior to administrative
decisions has been recognised by the Supr eme Court of Appeal and Constitutional
Court to be a fundamental one.37
[120] It is common cause that the applicant is a voluntary association registered as
a heritage conservation body and acting in the public interest. SIG contended that to
expect a heritage conservation body seeking to enforce environmental and
administrative law rights to provide an open -ended unlimited financial guarantee
would be ‘chilling to constitutional litigation ’ and thus contrary to the animating
principle behind the Constitutional Court’s costs jurisprudence
[121] Having carefully considered the prospects of success in the review and SIG’s
case in relation to the interdictory requirements, I am persuaded by the argument
advanced by SIG, namely that the application is public -interest litigation, and it is
therefore n ot appropriate to require SIG, who are already incurring their own costs in
the public interest, to also have to indemnify a respondent for loss that it might suffer
as a result of the case, whether as a consequence of an interim order or otherwise.
A wel l-grounded apprehension of irreparable and imminent harm
[122] The Constitu tional Court in City of Tshwane Metropolitan Municipality v
Afriforum and Another38 noted that:
‘..one of the most crucial requirements to meet is that the applicant must have
a reasonable apprehension of irreparable and imminent harm eventuating
should the order not be granted. The harm must be anticipated or ongoing.’
[123] The irreparable harm which SIG contends will ensue if the development is not
halted is that Botmasko p will be able to build itself into an impregnable position,
where the extensive residential development on the site is an accomplished fact and
even if SIG (and those represents), ultimately succeeded on the merits, it would be
37 For example, in Minister of Mineral Resources and Energy and Others v Sustaining the Wild Coast
NPC and Others 2024 (5) SA 38 (SCA); [2024] ZASCA 84 (3 June 2024).
38 City of Tshwane Metropolitan Municipality v Afriforum and Another 2016(6) SA 279 (CC) at para 35
and the authorities at footnote 35.
almost impossible to obtain an effective remedy, as this would require the demolition
of the development and the rehabilitation of the site.
[124] SIG further asserts that the harm suffered will be irreparable in that ‘the
environmental integrity of the site, the sense of place and the unspoiled beauty of the
mountain side with a Grade II cultural landscape along a Grade II scenic route to
Stellenbosch, as well as public access to parts of the mountain side, will be forever
lost if the development is allowed to continue.’
[125] Lastly SIG avers that the development footprint could be reduced to the level
authorised by the 2003 EA , and that the groundworks and roads of the property that
exceed the 2003 EA could be rehabilitated to restore the natural fynbos of the area,
as none of the dwellings or the proposed clubhouse have been constructed. This
could be achieved by granting an interim interdict.
[126] In Gartner, the argument that the developer will ‘build itself into an
impregnable position’ if an interdict is not grant ed was characterised by the court as
a ‘hackneyed mantra.’ The main thrust of this argument is that, where the residential
development on a site is an accomplished fact, even if that applicant (and those it
represents) were to succeed on the merits, it would be ‘ almost’ impossible to obtain
an effective remedy.
[127] As alluded to above, t he facts in this matter are clearly distinguishable from
those in Gartner, which was an application for a temporary interdict pending a review
of the City Of Cape To wn’s decision to approve building plans. In Gartner there were
no constitutional issues at play , and there was only one property or building in
respect of which the impugned plans had been approved.
[128] Botmaskop contends that if the review court upholds the applicant’s challenge
and decides the 2021 EA is invalid, further development and construction will not
irreparably harm the rights asserted by SIG because either (a) the alleged
unlawfulness might be regularised, (during which process the applicant and its
members will be able to assert the rights referred to in its application), or (b ) if the
development or part thereof is ultimately found to be irredeemably unlawful, it or the
relevant part will be ordered to be demolished and the site restored.
[129] In my view the suggestion in Gartner that the position of an applicant who,
with good prospects of success, seeks to impugn building plan approval is
safeguarded by the possibility of demolition of unlawfully erected structure after his
review application succeeds is somewhat unrealistic. This is particularly so in the
present matter, where if the estate were to be fully developed, 77 houses (if the
development was completed) , other buildings and extensive infrastructure would
have to be demolished.
[130] Faced with a possible demo lition order on this scale, the pressure on the
authorities to regularise an unlawful authorisation may prove to be irresistible. This
concern was raised by Binns -Ward J in Searle v Mossel Bay Municipality and
Others ,39 where the court recognised the danger of a fait accompli for a successful
review applicant being the incentive to the regulatory authority to subsequently lean
over backwards to regularise an unlawful development .
[131] The Supreme Court of Appeal in BSB International Link CC v Readam South
Africa (Pty) Ltd40 confirmed that only a local authority or the Minister has locus standi
to bring an application in terms of s 21 National Building Regulations and Building
Standards Act 103 of 1977 (the NBSA) before a magistrate. The Court noted that an
individual would be restricted to seeking a mandamus in appropriate circumstances
to compel the municipality or the Minister to act in terms of s 21 of the NBSA, should
the municipality or Minister have failed s o to act. The SCA The nature of the power to
order aptly described the remedy of demolition as ‘draconian’.41
[132] I am of the view that if the review is successful, the harm that may arise from
the construction of the houses on the property may not ultimately be capable of being
rectified through the post -review regularisation of the impugned authorisations or, in
the worst -case scenario, t hrough a demolition and restoration order.
39 [2009] ZAWCHC 9 (12 February 2009) at para 11.
40 (279/2015) [2016] ZASCA 58; [2016] 2 All SA 633 (SCA); 2016 (4) SA 83 (SCA) (13 April 2016) at
para 23.
41 Ibid at para 27.
Balance of convenience
[133] The question which arises in respect of this requirement for an interim interdict
is whether the harm that Botmaskop may suffer if the interdict is granted is greater
than the harm o r prejudice that SIG will suffer if the interim relief is refused.
[134] I am cognisant of the fact that this decision will have significant and far -
reaching consequences and costly implications for the unsuccessful party. I have
endeavoured to carefully weigh the interests and competing harms of the parties. It is
not a decision which I have taken lightly.
[135] Botmaskop states that it has invested approximately R300 million into the
development to date , with a significant part of the funding coming from a
development loan . The proceeds from the sale and transfer of erven in the
development are used to finance the repayment of the loan and the payment of its
service providers.
[136] Botmaskop emphasised that the review application's ultimate resolution may
require several years. The interdict will effectively prevent future sales and transfers
of erven in the estate until the review is finalised, if, as Botmaskop asserts, this is the
case. This will prevent Botmaskop from servicing its loan and paying its service
providers from the proceeds of sales, thereby exposing Botmaskop to irrecoverable
finance charges and potential recovery proceedings brought by its service providers.
[137] This i s harm which Botmaskop says it will suffer irrespective of the success or
otherwise of the review if the interim interdict is granted.
[138] Botmaskop contends that if it (and/or the residential owners and purchasers)
is interdicted from building, it is likely that those purchasers who have not yet taken
transfer of the erven they have purchased will refuse to do so and any future sales of
erven in the development will effectively be put on hold pending finalisation of the
review application.
[139] Whilst being sympathetic of the difficult position in which Botmaskop finds
itself, in my view the anticipated pecuniary loss to Botmaskop cannot justify the
possible infringement of the SIG’s (and the public’s) constitutional rights. Where
constitutional rights are in issue, the balance of convenience favours the protection of
those rights.42
[140] In Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources
and Energy an d Others43 the court held:
‘Section 2(4)(a)(vii) of NEMA provides that sustainable development requires
the consideration of all relevant factors, including “that a risk -averse and
cautious approach is applied, which takes into account the limits of current
knowledge about the consequences of decisions and actions .” The
Constitutional Court44 has had occasion to examine the duties arising from the
proper interpretation of the precautionary principle. It emphasised that the
approach adopted i n NEMA is one of risk -aversion and caution, which entails
“taking into account the limitation on present knowledge about the
consequences of an environmental decision ” and that the precautionary
principle is applicable “where, due to unavailable scientific knowledge, there is
uncertainty as to the future impact of the proposed development. ’45
[141] In WWF South Africa v Minister of Agriculture, Forestry and Fisheries and
others46 the Court analysed the approaches in international and comparative law to
the precautionary principle, particularly the development of and reliance on the
principle in Australia47 and stated as follows :48
42 Propshaft Master (Pty) Ltd and others v Ekurhuleni Metropolitan Municipality and others 2018 (2)
SA 555 (GJ) at par a 10.7.
43 Supra at para 70.
44 Fuel Retailers Association of Southern Africa v Director -General: Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga Province and others 2007 (6)
SA 4 (CC).
45 At para 70.
46 WWF South Africa v Minister of Agriculture, Forestry and Fisheries and others 2019 (2) SA 403
(WCC) at par 104.
47 Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133.
48At para 104.
‘Furthermore, prudence suggests that ‘some margin of error should be
retained’ until all consequences of the activity are known. Potential errors are
‘weighted in favour of environmental protection’, the object being ‘to safeguard
ecological space or environmental room for manoeuvre. ’
[142] SIG emphasised that while four purchasers (two of whom have the same
controlling mind) have deposed to affidavits to refer to their potential prejudice should
there be interim interdictory relief, they have not opposed Part A of the application .
The purchasers who filed explanatory affidavit have made it clear that they are
abiding the relief.
[143] In the light of their non -opposition to either part of the application, the
purchasers have not shown prejudice which could outweigh the harm to be suffered
by SIG. The prejudice alluded to in the explanatory affidavits appear s to be
speculative in nature and not of the same weight or scope as the imminent
irreparable harm faced by SIG.
[144] Furthermore, in appropriate circumstances the parties may motivate to
expedite the review hearing to the extent possible by approaching the Judge
President for a preferential date.
[145] I am of the view that in all the circ umstances the balance of convenience
favours the granting of the interim relief sought, as if interim relief is not granted, the
harm which will be suffered by SIG and the public more generally is likely to be
significant and irreparable.
No other satisfactory reme dy
[146] On a conspectus of the evidence before me , I am satisfied that the injury that
will be suffered by SIG if Botmaskop is allowed to continue with the building work is
irreparable, and that there is therefore no alternative remedy available other than to
seek an interim interdict.
[147] This has been addressed at length earlier in the judgment. A demolition order ,
as a last resort if the impugned environmental authorisations cannot be regularised
or are irremediably unlawful, is not in the circumstances of this matter , a satisfactory
remedy.
Botmaskop’s Application for Leave to file Further Supplementary Affidavit
[148] On 24 March 2025 Botmaskop delivered an application to file a supplementary
affidavit. Th e application was opposed by SIG. The parties agreed that the court
need not hear argument regarding whether leave should be granted, and that a
determination in this regard could be made on the papers filed by both parties in
respect of this interlocutory application .
[149] At the time of filing the application for leave to file a further affidavit, fou r
months had passed since Botmaskop delivered its answering affidavit. The purpose
of the supplementary affidavit, according to Botmaskop, is to ‘update the court on
certain relevant events that have taken place since the delivery of the answering
affidavit and which it is submitted are relevant to the issue raised by the court in its
email dated 17 March 2025.’
[150] Botmaskop already filed an answering affidavit with annexures and
confirmatory affidavits on 25 Novemb er 2024 . On 20 January 2025 it delivered a
supplementary answering affidavit attaching three supporting affidavits from further
respondents, which was served on 20 January 2025 , shortly before the applicant's
replying was due , notwithstanding the order by agreement of 4 December 2024 not
having provided for a supplementary answering affidavit by Botmaskop, and having
stipulated that an answering affidavit by any of the further respondents should be
delivered on or before 15 January 2025. The se supplementary answering affidavits
run in total to 312 pages.
[151] The December 2024 Court Order further directed that the interim interdict
application under Part A would be heard on 11 February 2025 , and did not provide
for any further affidavits to be delivered.
[152] It is now for me to determine whether, in my discretion, the filing of this further
supplementary answering affidavit is necessary and should be permitted. To do so it
is necessary to briefly consider the evidence set forth in the supplementary
answering affidavit which Botmaskop seeks leave to file (the further affidavit). I have
not attached any weight to the evidence set forth in the further affidavit, for the
reasons which will appear below.
[153] In the further affidavit Botma skop sets out the details of the substantial debt
which it owes both to the bondholder, ABSA , and to ASLA, for the bulk services
infrastructure constructed and installed at the site. It emphasises that it is reliant on
proceeds from the sale and transfer of erven in the development to settle this debt.
[154] On 11 December 2024 Botmaskop sold nine erven in the development to Gold
Water investments (Pty) Limited (Gold Water) for a total purchase consideration of
R191 015 000 . If this transaction is completed , Botmaskop avers that will be able to
settle the outstanding debts due to ABSA and ASLA.
[155] Botmaskop ’s further evidence is that because of the in terdict application, Gold
Water has insisted that Botmaskop agree that in the event of the in terdict being
granted, the transfer of the erven will not be proceeded with, and the money is paid
in trust for the purchase price, together with interest, will be repaid .
[156] On a cursory reading of the affidavit and the annexures thereto, t his does not
appear to borne out by the agreement of sale concluded between Botmaskop and
Gold Water (the agreement ), which provides, in clause 4, that the property shall,
subject to the fulfillment of the condition precedent, be registered by the
conveyancing attorneys as soon as is reasonably possible after the payment of the
balance of the purchase pr ice. The agreement does not appear to include any
condition precedent related to the interdict proceedings .
[157] It goes without saying that on the probabilities , Gold Water and other
purchasers or potential purchasers would have been aware of the pending interdict
application at the time of the conclusion of this agreement .
[158] Botmaskop relies on a letter from its attorneys to Gold Water dated 16 March
2025, which refers to certain discussions, which amount to hearsay, between the
respective parties in terms of which they agreed that the balance of the purchase
price will be held in trust pending the outcome of the interdict proceed ings and that
the transferring attorneys will ‘only proceed with the registration of transfer of the
Plots in the name of the Company after the High Court has di smissed the Urgent
Interdict application ’. It further provides that should the interdict be granted, the
transfer will not proceed and the monies, together with interest accrued, will be
repaid to Gold Water.
[159] In terms of the agreement no variation shall affect the terms thereof unless in
writing and signed by both parties. There is no addendum to the agreement annexed
to the further affidavit.
[160] The further affidavit also includes a report a report from Ms Muller of Sillito
Environmental Consulting, to DEA DP, dated 27 January 2025. Botmaskop wishes to
rely on this report to show that an interim interdict will purportedly have a
‘catastrophic financial impac t’ on it because ‘it will not be able to continue with the
necessary site rehabilitation work .’
[161] In the affidavit opposing the admission of the further affidavit, SIG points out
that whether ‘necessary site rehabilitation work ’ will have to stop is, at best for
Botmaskop , unclear (and is disputed by SIG). But irrespective of whether this is so or
not, Botmaskop should have sought to introduce this argument, with reference to the
report prior to the hearing on 11 February 2025. I agree. It cannot belatedly seek to
do so now.
[162] Turning now to the relevant legal principles, in terms of Rule 6(5)(e), a court
may in its discretion permit the filing of further affidavits. The fundamental
consideration in exercising such a discretion, is that any matter should be determined
having reg ard to all the facts that are relevant to the issues in dispute.49
49 Dickenson v South African General Electric Co (Pty) Ltd 1973 {2) SA 620 (A) at 628F -G.
[163] As a general proposition, a further affidavit should only be permitted in
exceptional circumstances, such as if new or unexpected evidenc e emerged in a
replying affidavit, or relevant factual evidence occurred o r only come to the
knowledge of the party seeking leave to file a further affidavit , after it had already
filed its answering affidavit.50
[164] A court tasked with determining whether a fu rther affidavit should be filed,
must weigh up the fairness to the parties if a further affidavit is allowed, and the
potential prejudice to any of the parties if the further affidavit is allowed or not
allowed.51
[165] It appears that this may well be an instance where the further affidavit has
been shaped to ‘relieve the pinch of the shoe.’ Moreover, in circumstances where
judgment has been reserved and a party wishes to place further evidence before the
court, the burden cast upon such part is greater due to the potential prejudice to the
other party , the need for finality and the convenience of the court and the
undesirability of the court having to reconsider issues already traversed.52
[166] In my view Botmaskop has failed to provide a n adequate and satisfactory
explanation as to why the facts sought to be put before the Court in the further
affidavit had not been included in the earlier affidavits.
[167] Moreover, there would be cognisable prejudice to SIG if the further affidavit
were to be admitted, not only because the fourth respondent would have been
allowed to bolster its case to address matters that occurred after the application was
issued, and in addition address issues which were previously dealt with on a cursory
basis (or not at all), but also because there would then also be further delays and
costs, as SIG would have to reply and there might then also have to be further
written and/or oral arg ument.
50 Goldfields Ltd and Others v Motley Rice LLC 2015 (4) SA 299 (GJ) at paragraphs [2 \123] to [126];
Africa Oil (Pty) Ltd v Ramadaan Investments CC 2004 (1) SA 35 (N) at 39A.
51 Broodie NO v Maposa and Others (1990/2017) [2018] ZAWCHC 18; 2018 (3) SA 129 (WCC);
[2018] 2 All SA 364 (WCC) (19 February 2018) at para 27.
52 Erasmus, Superior Court Practice, Vol 2, D1 -69.
[168] In the circumstances I am not inclined to permit the filing of the further
affidavit . The application for leave to file the further supplementary answering
affidavit is accordingly refused.
Conclusion
[169] In all the circumstances I am satisfied that SIG has established constitutional
rights worthy of protection by an interim interdict, has good prospects of success in
the main review, and has made out been made out a prima facie case for the interim
interdictory relief sought . I am further satisfied that that the other requirements for
granting the interim interdict pending the review have been satisfied.
Costs
[170] Save for the costs in respect of the application by Botmaskop’s application for
leave to file a further supplementary answering affidavit, which should follow the
result, I am not inclined to make a costs order in respect of Part A. If the applicant is
ultimately unsuccessful in the review, the review court may find that it should not be
awarded its costs in respect of the interdict proceedings. For this reason the costs of
Part A should, in my view, stand over for later determination .
Order
[171] The following order shall issue:
171.1 The applicant’s failure to comply with the forms, time periods and
service provided for in the Rules of Court is condoned and leave is
granted for the application to be heard as one of urgency in terms of
Rule 6(12).
171.2 Pending the determination of the final relief set out in Part B of the
Notice of Motion dated 1 November 2024, the fourth respondent ,
Botmaskop Fynbos Estate ( Pty) Ltd, and the eighth to thirty -second
respondents , are interdicted and restrained from undertaking or
proceeding with any construction, building or other work on Portion 2 of
Farm Amoi No 490 Botmaskop Stellenbosch related to the
development of a residential estate.
171.4 The parties may approach this Court f or further directives to facilitate
an expedited review in terms of Part B of the application and may seek
leave to amplify or amend the terms of this order to give practical effect
to the orders granted herein .
171.5 The interim interdict is granted without prejudice to the fourth
respondent’s rights, if the review is unsuccessful, to claim from the
applicant any damages that it can show that it has suffered because of
the interdict.
171.6 The fourth respondent is to pay the applicant ’s costs in respect of the
application by the fourth respondent to file a further supplementary
answering affidavit , which costs shall be taxed on Scale C and shall
include the cost of senior counsel.
___________________ ______
HOLDERNESS J
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Adv P Farlam SC
Instructed by: JD van der Merwe Attorneys
Per: Mr JD van der Merwe
For the fourth
Respondent: Adv S Rosenberg SC
Adv J Engelbrecht
Instructed by: Werksmans Attorneys
Per: Mr JG Cloete