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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
CASE NO: 6707/22
In the matter between:
THE GREEN POINT RESIDENTS AND
RATEPAYERS’ ASSOCIATION First A pplicant
THE TRUSTEES FOR THE TIME BEING
OF THE RUSNIC TRUST (IT 2867/09) Second Applicant
THOMAS FRANCIS GALLAGHER Third Applicant
JACQUELINE FRANCES GALLAGHER Fourth Applicant
JULIAN DAVID RABINOWITZ Fifth Applicant
CYRIL IAN GLASER Sixth Applicant
BARBARA RUTH MAYERS Seventh Applicant
and
LEONHARD GÄRTNER First Respondent
ANDREAS ROBERT HERMANN PLANK Second Respondent
JANINE ADUDE STEPHANIE BEATRICE PLANK Third Respondent
THE CITY OF CAPE TOWN Fourth Respondent
Heard 26 February 2025
Delivered on 11 April 2025 (by electronic mail to the parties)
JUDGMENT
KHOZA, AJ
Introduction
1. This case raises a question of principle: when does the doctrine of mootness
preclude judicial review of unlawful administrative action? The issue arises in
the context of a building plan approval that was conceded to be unlawful and
was subsequently aband oned. A revised plan was submitted and granted,
resulting in a new and independent approval.
2. At the heart of this dispute lies a tension between two foundational tenets: on
the one hand, that unlawful administrative action s are valid and binding until
they are set aside; on the other, that courts do not adjudicate disputes which
no longer raise a live controversy or produce to legal consequences.
Resolving this tension calls for careful attention to the proper limits of judicial
power in administrative law.
3. In March 2 022, t he applicants instituted these review proceedings to
challenge the approval of a building plan by the fourth respondent (“the City”)
in February 2021 (“the 2021 plan”) for a second dwelling on Erf 1[...] in
Green Point belonging to the first to fourth respondents (“the developers”).
They seek to have the City’s approval (“impugned approval”) declare d
unlawful and set aside and a consequential order directing the developers to
demolish all building works on Erf 1[...].
4. However, t he City and the developers oppose the review on the ground of
mootness. They argue that the relief sought has been overtaken by events ,
rendering it moot and granting it will have no practical effect . Since this
jurisdictional point is dispositive of the case , the parties confined their oral
argument at the hearing on 26 February 2025 to the issue of mootness . This
approach aligns with the one adopted by the Supreme Court of Appeal
(SCA) in Solidariteit Helpende Hand NPDC and Others v Minister of
Cooperative Gover nance and Traditional Affairs1 (“Solidariteit Helpende ”).
5. The applicants own properties within the vicinity of Erf 1[...]. The first
applicant is an association representing residents and ratepayers in the
greater Green Point and Mouille Point area .
6. This matter did not spring from nowhere; it marks the latest chapter in a
protracted dispute, marked by successive legal proceedings and shifting
procedural terrain. To grapple properly with the mootness argumen t, it is
necessary to trace the tangled history of the parties’ long -running legal
skirmishes.
Factual and litigation context
7. The developers purchased Erf 1[...] in March 2020 and subsequently applied
to the City for the approval of the building plan on the property . The City
1 [2023] ZASCA 35 (31 March 2023) at para 11.
approved the plan on 22 February 202 1. That approval sparked this
litigation .
8. Construction on Erf 1[...] commenced in July 2021 . By the end of that year,
applicants began raising concerns about the lawfulness of the approved
plan. To address these concerns, t hey consulted a professional town
planner, Mr Pratt, in November 2021 as well as t heir attorney, Mr Van
Rensburg . They also attempted to halt construction through correspondence
with the developers , but these efforts were unsuccessful.
9. Convinced that the 2021 plan and the City’s approval were unlawful, the
applicants initiated these review proceedings on 4 March 2022 , seeking to
have the impug ned approval set aside.
10. The review ground s on which the applicants impugn the 2021 plan are as
follows :
10.1. Height restriction ground: The applicants contend that the proposed
second dwelling depicted in the approved plan exceed s the height
restrictions applicable to Erf 1[...], namely 6 metres as measured
from the ground level to the wall plate and 8 metr es as measures
from ground level to the top of the roof. This argument is based on
the premise that the second dwelling constitute s a separate structure
from the main dwelling. If, however, the second dwelling is
considered part of the main structure, the height restrictions would
be less stringent – 8 metres and 10 metres respectively.
10.2. The ground level and Lidar Map ground: The applic ants argue that
the existing ground level of Erf 1[...] should have been based on the
City’s Lidar Map of February 2021 rather than the survey conducted
by the developer’s land surveyor, Mr Gluckman. They claim that the
Lidar Map reveals lower existing groun d level than those assumed
by the developers.
10.3. The sensitivity enquiry ground: The applicants assert that the
approved building is unsightly and objectionable, as it towers over
the gardens and private spaces of adjacent properties and
negatively affects t he amenities enjoyed by the owners of Erven 2[...]
and 2[...]2 .
10.4. The setback non -compliance ground: The applicants contend that
incorrect common boundary setbacks were applied. Specifically,
they argue that the 0 -metre setback relaxation permitted under the
Devel opment Management Scheme (“DMS”) of the Municipal
Planning By -Law (“By -Law”) was incorrectly applied to both common
boundaries, whereas it should have been applied to only one.
10.5. The title deed restriction ground: The applicant s assert that the
proposed second dwelling contravenes applicable restrictive title
deed conditions. They argue that the main entrance should face
Roos Road rather than High -Level Road, as required. Additionally,
they contend that the second dwelling was im permissibly built within
25 feet of Rood Road.
11. On 6 April 2022, t he applicants obtained an interim interdict from this Court
(per Gamble J) , pending the determination of the review . The interim
interdict was granted on the prima facie basis that t he propos ed dwelling in
the building plans contravened the D MS.
12. The developers , advised by professional town and regional planner s, were
informed they had strong prospects in the review regarding the separate
structure and title deed grounds , but not on the Lidar Map or height
restriction grounds. Their legal representatives also advised that “the
sensitivity enquiry ground ” was bad. Consequently , the developers opted to
submit a revised plan to the City in April 2022 (“ the revised plan”) .
13. Although not legally required, the City invited the applicants to comment on
the revised plan on 26 April 2023 . The applicants o bjected to the revised
plan, reiterating the same review grounds mentioned above . Additionally,
they argued that the interim interdict an d the pending review prohibited the
City from considering the revised plan. The City countere d that the interdict
only prevented further construction work on Erf 1[...] based on the 2021 plan
and did not restrict the City’s statutory power to consider new or revised
plans.
14. On 27 November 202 3, the City approved the revised plan because it was
satisfied that this plan eliminated or cured the defects in the 2021 plan and
the parts that are similar in both plans are valid and the applicants’
complain ts about them are unfounded . Following that approval, the
developers resumed construction on Erf 1[...] on 8 February 2024 . This
prompted further litigation between the parties.
15. The applicants then brought an urgent application to compel the developers
to comply with the interim order previously granted . This application was
based on their firm belief that Gamble J’s order prohibited the developers
from resuming construction pending the finalisation of the current review
application and that the approval of th e revised plans did not alter this legal
position. The developers opposed the application. On 12 March 2024,
Adams AJ struck it from the roll for lack of urgenc y, but it was re -enrolled for
hearing later.
16. On 8 March 2024, the applicants launched a second review application
under case number 4859/2024 to have the City’s approval of the revised
plan set aside (“second review application”) . They also sought an interim
order halting construction under the revised plan, pending the determination
of the second review . However, on 3 June 2024, Lukheleni J dismissed the
interdict application and granted the applicants leave to appeal to the SCA .
17. On 6 June 2024, Fortuin J issued a ruling in the application to compel which
conflicted with Lukheleni J ’s judgment . She held that Gamble J ’s order
barred all construction on Erf 1[...], even with the revised plan , and ordered
the developers to cease all building works on the property (“the compliance
order”) . In contrast, Lukheleni J had found that Gamble J’s order did not
preclude construction under the revised plan.
18. Fortuin J found , in addition, that the developers’ submission of the revised
plan and their attempts to “frustrate the interdict ” and the pending review
application “constituted constructive contempt .” This escalated tensions,
prompting the developers to seek leave to appeal.
19. Following Fortuin J’s interpretation of Gamble J ’s order, the City filed a
reconsideration application in June 2024 in which it sought to amend
Gamble J ’s order by delet ing the words “or otherwise”. Fortuin J heard this
application alongside the applicants’ leave to appeal against the compliance
order. She granted the reconsideration application and dismissed the
appli cation for leave to appeal .
20. However, in granting the reconsideration application, Fortuin J , apart from
deleting the impugned words , inserted the phrase – ‘or any element
contained in the 2021 plan which is subject to the pending review – which
neither party had requested . The modification effectively prevented the
developers from continu ing construction . As a result , the City applied for
leave to appeal th e reconsideration order , which remains pending before this
Court.
21. Prior to approving the re vised plan, the City informed the applicants , on 12
May 2023 , that it would consider the revised plan and agreed that the 2021
plan should be set aside. However, it did not concede the entire review, the
review grounds or the other relief sought in the not ice of motion. It is of the
view that some of the review grounds are bad.
22. On 21 June 2023, the developers filed a notice to abide the court’s decision
in the current review application condition al on no costs order being made
against them . By then , the review application had become unopposed, but
the applicants failed to pursue it to finality. Instead, in February 2024, they
submitted a draft order to the respondents, proposing to settle all the relief
sought in Part B of the notice of motion. Howe ver, none of the respondents
accepted the terms of this proposal.
23. In June 2024, the City proposed a draft order aimed at resolving both the
review application and the pending appeal against Fortuin J’s compliance
order, despite the ongoing dispute over Gamble J’s order. The developers
accepted th e proposed order , but the applicants rejected it.
24. It appears that a disagreement arose between the parties regarding the
terms of the proposed order . The applicants expected the developers to
include a tender for costs in their notice to abide and for the City to either
specify the grounds of review it conceded and tender costs , or oppose the
review application. This did not happen, resulting in a deadlock.
25. Althoug the City disagrees with the relief sought, it chose not to oppose the
review and denied liability for costs. The developers aligned themselves with
the City’s position on mootness . However, the applicants dispute that the
matter is moot .
26. Pursuant to the interim orders of Gamble J and Fortuin J, the applicants
have successfully halted construction on Erf 1[...], pending determination of
Part B of the relief they seek in the review application – which relates to the
now abandoned 2021 approval . This determination accordingly hinges o n
resolving t he jurisdictional issue of mootness .
Mootness
27. The general principle is that a matter is moot when a court’s ruling will have
no practical effect on the parties. A matter is not justiciable where it no
longer presents a real, existing or live dispute between the parties that a
court’s decision or order would practically resolve or affect. Courts do not
decide hypothetical questions or pronounce on matters that are academic,
nor do they issue orders that have no practical effect. 2
2 AB and Another v Pridwin Preparatory School and Others (CCT294/18) [2020] ZACC 12; 2020 (9)
BCLR 1029 (CC); 2020 (5) SA 327 (CC) at para 50. Also see National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Oth ers NPC and Another 2023 (6) BCLR 752
(CC) at para 23 ; Legal Aid v Magidiwana 2015 (2) SA 568 (SCA) at para 2, confirmed on appeal
Legal Aid South Africa v Magidiwana and others (2015 (6) SA 494 (CC); 2015 (11) BCLR 1346 (CC).
28. Further more, a court of first instance does not have jurisdiction to entertain
the merits of a matter if a dispute or a cause of action has ceased to exist
before judgment – there is no longer a claim before the court for its
adjudication.3 Only a court of appea l has a discretion to hear appeals
notwithstanding the mootness of the matter.4
29. Therefore, a ruling of this Court will only have practical effect on the parties if
a live dispute still exists. Otherwise, there comes a point during litigation at
which th e court must fold its arms.
Key submissions and points of dispute
30. The City’s and the developers’ case for mootness can be summarised as
follows :
30.1. The 2021 plan was abandoned and the associated development
rights under the impugned approv al were relinquished or waived;
30.2. The 2021 plan was replaced and superseded by the revised plan,
and it will not be used for construction on Erf 1[...]; and
30.3. As a result, a live dispute no longer exists and setting aside the
impugned approval would have no pract ical effect. The only live
issue is one of costs.
31. The developers added that the 2021 plan lapsed due to the operation of
section 7(4) of the National Building Regulations and Building Standards Act
103 of 1977 (“the Building Act”). They assert that the la psing of the 2021
plan renders the matter moot. The applicants reject this argument.
3 Minister of Justice and Correctional Services and Others v Estate Late Stransham -Ford [2016]
ZASCA 197; [2017] 1 All SA 354 (SCA); 2017 (3) BCLR 364 (SCA); 2017 (3) SA 152 (SCA) paras 25
and 26 .
4 This power is conferred on a court of appeal by section 16(2)(a)(i) of the Superior Courts Act 10 of
2013.
32. The applicants maintain that a live dispute remains and that the relief they
seek would have practical legal consequences. They advance four reasons:
first, that the 2021 plan has not lapsed; second, that rights derived from
administrative action cannot be waived, and that the approval of the revised
plan amounts to impermissible self -help; third, that the City has not
articulated the grounds on which it concedes the 2021 approval to be
unlawful; and fourth, that administrative action remains valid and binding
until set aside by a court.
Has the 2021 plan lapsed ?
33. The developers contend that the 2021 plan lapsed by operation of section
7(4) of the Building Act,5 owing to a failure to “proceed with” construction for
a continuous period of 12 months — specifically, from 8 April 2022 (the date
of Gamble J’s interim interdict) to February 2024 (when building activity
resumed). They submit that if the plan has indeed lapsed, then the
application is moot on that ground alone.
34. The applicants reject this interpretation. They contend that the 2021 plan
remains valid because construction commenced in July 2021 , well within the
12-month window. They argue that the developers ’ interpretation of section
7(4) provision is contrived, leads to absurdity, imposes an unbusinesslike
interpretation that would render section 11 of the Building Act6 redundant.
5 Section 7(4) of the B uilding Act reads:
“Any approval granted by a local authority in accordance with subsection (1)(a) in respect of
any application shall lapse after the expiry of a period of 12 months as from the date on which
it was granted unless the erection of the building in question is commended or proceeding
with within the said period or unless such local authority extended the said period at the
request in writing of the applicant concerned. ”
6 Section 11 of the Building Act reads:
Erection of buildings subject to time limit
(1) If for a period exceeding three months the erection of a building is not proceeded with, the
local authority in question may by notice in writing, served by post or deliver ed, order the
owner of such building to resume and to complete the erection of such building within the
periods specified in such notice.
(2) If the owner of a building on or to whom a notice referred to in subsection (1) was served
or delivered, fails to res ume or complete the erection of such building within the periods
specified in such notice, the local authority in question may extend such periods from time
to time if such owner satisfies it that such failure was due to circumstances beyond his
control.
35. The interpretation of the section 7(4) must be guided by the established
principles of statutory construction . In Cool Ideas 1186 CC v Hubbard (“Cool
Ideas”), the Constitutional Court affirmed that the ordinary grammatical
meaning of statutory language should prevail , unless it leads to absurdity .”7
This approach accords with the Supreme Court of Appeal decision in Natal
Joint Municipal Pension Fund v Endumeni Municipality (“Endumeni”), where
Wallis JA held that the statutory interpretation must considers the text,
context and purpose of the provision.8
36. The same interpretativ e principle was endorsed in Commissioner for Inland
Revenue v Golden Dumps (Pty) Ltd (“Golden Dumps”) , where the Appellate
Division held that effect must be given to every word and that no word,
phrase or sentence should lightly be regarded as superfluous.9
37. Section 7(4) serves a distinct purpose separate from section 11. It is
designed to prevent building plan approvals from remaining valid indefinitely.
By requiring the timely commencement or continuation of building works, it
enables local authorities to maintain effective oversight of development and
(3) If the owner of a building on or to whom a notice referred to in subsection (1) was served
or delivered, fails to resume or to complete the erection of such building within the periods
specified in such notice or, when applicable, within such periods as ex tended in
accordance with subsection (2), and the local authority in question is of the opinion that
such building is unsightly or dangerous to life or property or derogates from the value of
adjoining or neighbouring properties, such local authority may b y notice in writing, served
by post or delivered, order such owner to demolish such building, to remove the material
of which such building consisted and any other material or rubbish from the site in
question, and to otherwise clean up such site within th e period specified in the last -
mentioned notice.
(4) If the owner of a building fails to comply with a notice served on or delivered to him in
accordance with subsection (3) in respect of such building, the local authority in question
may demolish such buildi ng, remove the material of which such building consisted and
any other material or rubbish from the site in question and otherwise clean up such site,
and may recover the costs thereof from such owner: Provided that such local authority
may sell such mater ial and may utilise the proceeds of such sale to defray the costs of
such demolition, removal or clean -up and shall pay the balance, if any, of such proceeds
to such owner.
(5) Any approval granted by a local authority in accordance with section 7(1)(a) in re spect of
any application shall lapse as soon as a notice in terms of subsection (3) is served on or
delivered to the owner of the building in question in respect of such building.
7 2014 (4) SA 474 (CC) at para 28.
8 2012 (4) SA 593 (SCA) at para 18 .
9 1993 (4) SA 110 (A) at 116F -117A.
ensures that approvals remain aligned with prevailing planning
considerations.
38. Section 11 , by contrast, addresses the problem of partially built or
abandoned structures. It operates as an enforcement mechanism ,
empowering a local authority to issue compliance notices where construction
has commenced but then grind to a halt for more than three months. In
essence, it is legislative nudge to keep developers moving and ensure that
the urban la ndscape is not scattered with the remnants of half -built
developments.
39. Section 7(4) of the Building Act is framed in disjunctive terms. It provides that
a building plan approval will lapse after 12 months unless either the erection
of the building has been “commenced” or it has been “proceeded with” within
that period. The two disjunctive conditions – “commended” and “proceeded
with” – are expressed in the alternative and must be given a distinct and
purposive meaning in accordance with the principles of st atutory
interpretation.
40. The first condition – “commenced” – refers to the initiation of actual physical
construction such as excavation, laying of foundations, or other substantial
preparatory works. The second condition – “proceeded with” – presupposes
that construction has already begun and requires that building works be
actively continued during the 12-month period .
41. These two limbs of the disjunction serve distinct legal functions . If either is
satisfied within 12 months of approval, the plan does no t lapse. Put
differently, the developer need only break ground within that period, or,
alternatively, continue previously commenced construction during that
period. Section 7 (4) requires only one of the conditions to be met to preserve
the validity of the approval.
42. In this case, t he 2021 plan was approved on 22 February 2021. It would
have lapsed on 22 February 2022 , unless either the erection of the building
was commenced, or proceeded with during that 12 -month period.
43. Construction commenced in July 2021 , well within the 12 -month windo w.
The first disjunctive condition was therefore satisfied , preserv ing the validity
of the approval beyond February 2022. The fact that construction was
subsequently halted by Gamble J’s interim order o n 8 April 2022 is
immaterial for purposes of section 7(4) , since requirement for
commencement had already been fulfilled prior to expiry of the prescribed
period.
44. I accordingly conclude that the 2021 plan did not lapse by operation of
section 7(4). It rem ained in force when the revised plan was approved in
November 2023. This interpretation does not render section 11 redundant .
45. But the fact that the 2021 plan did not lapse raises this question: does it
continue to exist in fact and in law following its ab andonment and
replacement by the revised plan? I return to this question after the next
section.
The effect of abandonment and supersession on mootness
46. The question of mootness may turn on whether the developers’ waiver of
rights has extinguished the lega l dispute that would otherwise sustain judicial
review.
47. The applicants contend that the rights conferred by the 2021 approval
cannot be waived in a manner that extinguishes the decision itself. Nor, they
argue, can such waiver shield an otherwise unlawful administrative act from
judicial scrutiny. On their view, administrative action is inherently public in
nature, produces external legal effect, and remains subject to review
regardless of whether the beneficiary continues to rely on it.
48. In support of this submission, the applicants rely on SA Eagle Insurance Co
Ltd v Bavuma (“Bavuma ”), contending that administrative decisions such as
building plan approvals implicate the public interest and cannot be
unilaterally waived or abandoned.10 They argue that once such a decision is
made, its legal consequences extend beyond private entitlement and remain
reviewable by the courts.11
49. In my view, the applicants’ reliance on Bavuma is misplaced. That case
concerned the waiver of statutory rights in a context where the public interest
was directly and substantially implicated. The principle it affirms is that a
person may not waive a right that serves a broader regulatory or societal
function. It is rooted in the maxim quilibet potest renuntiare juri pro se
introducto — a person may renounce a law enacted for their own benefit —
but only where the right in question is truly personal, and its waiver does not
intrude upon the public interest.
50. This raises the central question in the present case: does the approval of a
building plan on privately owned land implicate the public interest in a
manner that precludes its waiver? In my view, it does not.
51. In Walele v City of Cape Town ,12 the Constitutional Court made clear that the
approval of building plans — where those plans comply with applicable
zoning and building regulations, and do not trigger the disqualifying factors in
section 7(1)(b)(ii) of the Building Act — does not affect the rights of
neighbouring owners or implicate broader public interests. Such approvals,
the Court held, are regulatory in nature and confined to the relationship
between the applicant and the local authority. Neighbours, it affirmed, have
no automatic right to be heard in such proceedings.13
52. The 2021 plan in this case complied with existing land use rights and
applicable statutory frameworks. There is no indication that the approval
10 Amler’s Pleadings, Tenth Edition (2024) LexisNexis, p 390.
11 [1995] 2 All SA 190 (A) at para 9.
12 2008 (6) SA 129 (CC).
13 Walele at paras 27 to 45.
required any deviation from planning instruments, involved public
participation, or had external legal consequences beyond enabling the
developer to build. Unlike the legislative scheme in Bavuma , which
concerned rights designed to protect broader public interests, the approval at
issue here was administrative in nature and conferred rights that were
private and personal to the beneficiary. The Bavuma principle accordi ngly
finds no application here.
53. The City and the developers contend that the matter is moot because the
developers have expressly abandoned the 2021 plan and waived the
development rights arising from its approval —rights which they were lawfully
entitled to relinquish.
54. In support of this submission , they rely on the decision of the Appellate
Division in Cape Coast Exploration Ltd v Scholtz 1933 AD 56 (“Cape Coast
Exploration ”) where Wessels CJ held that :
“There is certainly nothing …. to prevent the owner of a statutory right
or privilege from renouncing or abandoning such a right or privilege to
which he is entitled. If therefore an o wner or discoverer asks to have
her certificate withdrawn, he is at liberty to do so.”14
55. They also invoke Baxter’s observation that an administrative decision may
be revoked with the consent of its beneficiary, and that a public authority is
generally required to seek judicial review unless: (a) the affected parties’
consent to its abandonment ; or (b) it can be shown that those parties would
benefit from its withdrawal.15
56. Both Cape Coast Exploration and Baxter’s commentary affirm the principle
that rights derived from administrative action may, in appropriate
circumstances, be lawfully abandone d by the person in whom they vest.
That principle is consistent with settled law on waiver and its consequences.
14 See L Baxter Administrative Law (1984) Juta p 374, footnote 208.
15 Supra , p 379.
that once a right is validly abandoned, it is extinguished and cannot be
revived.16 Put differently, a waiver brings an end to the right and p recludes
its future enforcement.17
57. Read together, Cape Coast Exploration and Baxter confirm that
administrative rights may be lawfully waived, and that such waiver carries
final legal effect. That position is not displaced by the Bavuma principle,
which h as no application in the absence of a broader public interest. The
applicants’ contention that the developers could not abandon the rights
under the 2021 approval is therefore without merit.
58. In the result, the developers’ express abandonment of the rights conferred
by the approved 2021 plan extinguished any ongoing legal dispute. The
approval no longer carries legal consequence, is no longer relied upon by
any party, and no longer forms the basis for any enforceable entitlement.
59. The applicants’ further contention — that the 2021 plan could be relied upon
by the developers’ successors in title — must also fail. The rights under the
impugned approval have been validly extinguished. There is nothing left to
revive. On this point alon e, the matter has become moot.
60. That conclusion disposes of the applicants’ waiver -based objections. I turn
briefly to their further contention — that the 2021 approval was impermissibly
superseded by the subsequent decision. The applicants contend that, b y
approving the revised plan, the City effectively corrected its own earlier
approval and this constituted “self -help” — a step they argue is legally
impermissible.
61. The City disavows this characterisation. It submits that it exercised its
statutory power t o consider and approve a new building plan — a power that
may be used to regularise or rectify deficiencies in an earlier approval. That
16 Amler’s Pleadings , 10th ed (2024) p 39 0.
17 Laws v Rutherford 1924 AD 261.
authority is not unusual; many statutes permit administrators to revisit earlier
decisions, whether expressly or implie dly.18
62. I am inclined to agree with the City for three reasons. First, sections 4 and 7
of the Building Act empower it to consider and approve new plans that meet
statutory requirements. The revised plan was submitted as a fresh
application, and the City w as bound to assess it as such. Second, the SCA
in Camps Bay Ratepayers and Residents Association v Harrison19
recognised that local authorities hold an implied power to approve
amendment or replacement plans. And t hird, this Court confirmed in Searle v
Mossel Bay Municipality20 that the approval of a replacement plan effectively
displaces the original, rendering any dispute over the earlier approval legally
spent
63. The answer to the question posed in paragraph 45 — whether the 2021 plan
continues to exist in fact and in law — is no. While the plan may remain on
record, it no longer carries legal currency. It was abandoned in practice and
overtaken by the approval of the revised plan. The developers do not rely on
it; the Cit y has treated it as superseded; and no rights or obligations are
asserted under it. Whatever legal force it once held has been extinguished
and cannot be revived.
64. In my view, t hat alone is enough to establish mootness. This court should
fold its arms. But the applicants are not quite done. They press two further
arguments which , if my conclusion on mootness at this stage is wrong, I am
obliged to address.
Do partial concession s keep the dispute alive ?
65. The applicants contend that a live dispute lingers beca use the City has not
conceded each and every ground of review. In their view, even if the 2021
18 See the discussions in Cora Hoexter and Glen Penfold Administrative Law in South Africa 3 ed
(2021), p 380 – 388 and Lawrence Bax ter Administrative Law (1984) p 376 – 377.
19 [2010] 2 All SA 519 (SCA).
20 (1237/09) [2009] ZAWCHC 9 (12 February 2009).
plan and the rights it s approval conferred have been abandoned, they
remain entitled to a judgment from this Court that pronounces on the issues
and settles the lis between the parties — a ruling, they say, that would be
binding going forward.
66. They rely on the judgment of this Court in Camps Bay & Clifton Ratepayers
Association and Others v Al Khalifa Family Trust and Another21 (“Al Khalifa”)
where Rogers J (as he then was) proceeded to adjudicate a review
application despite partial concessions by the City of Cape Town . At
paragraph 9 of the judgment , he explained :
[9] Since the CCT has only conceded certain grounds of review and
because KFT has not formally conceded any of the grounds, I shall
have to deal with all of them. This is in any event necessary because
the grounds on which I uphold the review will or may bind the parties
going forward. It is unfortunate that I should hav e to do so without the
benefit of argument from the CCT and KFT. Because there are multiple
grounds on which each of the approvals is attacked, and because there
are also complaints about building work which is not authorised by the
latest approved plans, the judgment is much longer than I would have
liked.
67. That proposition misses the mark. Al Khalifa is readily distinguishable on the
facts. There, the applicants challenged both the original approval and a set
of rider plans. While the City made partial con cessions, the developers
pressed ahead, opposing the review and intending to build in terms of the
contested approvals. A live controversy remained on the table. Rogers J was
obliged to deal with the merits — his ruling would shape the legal rights of
the parties going forward.
68. Not so here. The developers have walked away from the 2021 plan, waived
the rights that flowed from its approval, and committed to proceeding with
21 [2020] ZAWCHC 181 (15 December 2020).
construction under the revised plan. They no longer seek to defend the
original approv al, nor to act on it. Unlike in Al Khalifa , there is no continuing
reliance on the disputed decision. The legal footing for the review has simply
fallen away.
69. During oral argument, the applicants advanced two further points to keep the
dispute alive. First , they submitted that the boundary setback issue remains
unresolved and warrants adjudication, noting that this ground was found to
be arguable in Al Khalifa . Second, they argued that the respondents’
concessions on height restrictions and layout were not made under oath,
and that the lawfulness of the 2021 plan has not been expressly conceded or
answered — leaving the merits, in their view, still on the table.
70. These arguments do not hold. The fact that a ground of review was
previously found arguable, in a nother case, does not justify adjudication in
this case in the absence of an active dispute. What the applicants are
pressing for is not the resolution of an actual controversy, but a ruling in the
abstract — a judgment for judgment’s sake. This is indicat ive of a conceptual
misunderstanding of the distinction between the grounds of review and the
effect of the administrative action once it is no longer relied upon.
71. What the applicants seek here bears a striking resemblance to what this
Court declined to do in Habitat Council v The City of Cape Town and Others
(“Habitat Council”) .22 There, Gamble J cautioned against delivering a
judgment merely to “castigate the City for its constitutional delinquency ” and
“to tell the City that it was wrong and that in future it should do its job
better.”23 This is, in effect, what the applicants now invite this Court to do. I
decline that invit ation.
72. In my view, the City’s refusal to concede specific review grounds does not
resuscitate a dispute that has otherwise run i ts course. But the applicants
are not quite done. Shifting ground, they advance a further argument: that
22 2022 (6) SA 383 (WCC).
23 Habitat Council at para s 76 to 77.
the 2021 approval continues to exist in fact and in law, and that this alone is
enough to keep the matter justiciable.
Does a court have jurisdiction a bsent legal consequences and a live dispute?
73. The applicants contend that the impugned approval constitutes
administrative action that remains valid and binding until set aside by a court.
They argue that, unless it is formally invalidated, the 2021 plan approval
continues to carry legal consequences — consequences that could, in
theory, be relied upon by the developers or their successors in future. On
that basis, they submit that a setting -aside order would still serve a practical
legal purpose
74. The applicants anchor their argument in the principle of administrative law
articulated in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others24
(“Oudekraal ”), and endorsed in later decisions including MEC for Health,
Eastern Cape v Kirland Investme nts (Pty) Ltd25 (“Kirland ”) and Merafong City
Local Municipality v AngloGold Ashanti Ltd26 (“Merafong ”).
75. The principle is well established: administrative decisions —whether lawful or
not—remain legally effective and binding until set aside by a court of law.
Until that point, they may continue to produce legally operative
consequences. In support of this cont ention, the applicants rely on the
following passages from the majority judgment in Merafong :
[41] The import of Oudekraal and Kirkland was that government
cannot simply ignore an apparently binding ruling or decision on the
basis that it is invalid. The validity of the decision has to be tested in
appropriate proceedings. And the sole power to pronounce that the
decision is defective, and therefore invalid, lied with the courts.
24 2004 (6) SA 222 (SCA).
25 2014 (3) SA 481 (CC).
26 2017 (2) SA 211 (CC).
Government itself has no authority to invalidate or ignore the decision.
It remains legally effective until properly set aside.
[42] The underlying principles are that the courts’ role in determining
legality is pre -eminent and exclusive; government officials, or anyone
else for that matter, may not usurp that role by themselves pronouncing
on whether decisions are unlawful, and then ignoring them and, unless
set aside, a decision erroneously taken may well continue to have
lawful consequences…
76. However, t he applicants overstate the reach of the Oudekraal principle. Their
submissio n proceeds from the premise that every administrative act ion must
be judicially set aside before it can lose legal or factual effect. I do not agree.
That is not, in my view, what Oudekraal intended. If that were so, the
doctrine of mootness would never ap ply in cases involving administrative
decisions.
77. As the SCA has clarified, the purpose of the Oudekraal principle is to
preserve legal certainty and promote the orderly functioning of the state. It
does so by ensuring that administrative decisions are not unilaterally
disregarded merely because they are believed to be invalid. Such decisions,
though potentially unlawful, exist in fact — and their factual existence may
carry legal consequences. Until set aside by a court, they retain binding
force and may s erve as the lawful basis for further administrative or private
acts. In this regard, the SCA held:
[31] Thus the proper inquiry in each – at least at first – is not whether
the initial act was valid but rather whether its substantive validity was a
necessary precondition for the validity of consequent acts. If the validity
of consequent act is dependent on n o more than the factual existence
of the initial act then the consequent act will have legal effect for so
long as the initial act is not set aside by a competent court.
78. Properly understood, the Oudekraal principle rests on the premise that legal
consequences may continue to flow from the mere factual existence of an
administrative act, even if that act is unlawful. As Cameron J aptly observed,
the notion that an unlawful act can provide legally effective consequenc es is
a central conundrum of Oudekraal that is constitutional ly sustainable and
necessary because its factual footprint may, for better or worse, lay the
groundwork for subsequent lawful action built upon it. 27
79. This is where Oudekraal and mootness meet : while Oudekraal addresses
the legal consequences of an administrative act that remains formally in
existence, the doctrine of mootness focuses on whether setting aside such
an act would have any practical legal effect. If not, the court’s jurisdiction is
not engaged.
80. In the present matter, the only arguable legal consequence flowing from the
impugned approval would be if the developers or successors in title were to
dust off the 2021 plan and attempt to build in accordance with it, drawing on
the impugned ap proval’s formal existence. But that eventuality is not on the
cards here. Neither the developers nor their successors in title are in any
position to breathe life back into rights that have long since been
extinguished.
81. Neither Oudekraal , Merafong , nor th e other authorities on which the
applicants rely obliges a court to adjudicate disputes where a factual
existence of an administrative decision bears no legal consequence . A
court’s jurisdiction is engaged only where the impugned act continues to
produce t angible legal effects. That is not the case here. On the contrary, the
matter is moot and falls outside the reach of judicial determination.
82. The applicants seek to resist this conclusion by invoking the Stransham -Ford
principle, contending that courts lack jurisdiction only where the underlying
cause of action has been extinguished. They argue that because the
impugned approval has not been judicially set aside, the cause of action
remains extant and justiciable.
27 Merafong at para 36.
83. Stransham -Ford does not assist the applicants. It is both factually and legally
distinguishable. That case concerned a terminally ill applicant who sought
judicial authorisation for physician -assisted death. Before the High Court
could determine the matter, th e applicant passed away. The SCA held that
his death extinguished the cause of action, rendering the matter moot, since
the order sought could no longer serve any purpose. The only potential
beneficiary was no longer alive.
84. The principle in Stransham -Ford has been applied consistently in
subsequent cases28 including Solidariteit Helpende , wher e the applicants
challenged COVID -19 regulations prohibiting religious gatherings. Before the
hearing, the regulations were amended to lift the prohibition . The High Court
dismissed the matter due to mootness . The SCA upheld that finding,
concluding that by the time the matter was heard, all regulations had been
repealed , leaving nothing to review or set aside .
85. Stransham -Ford underscore s a foundational principle: the existence of an
administrative action or a cause of action does not, on its own, confer
jurisdiction on this Court to consider the merits in the absence of a live
dispute or any legal consequences . An a dministrative action is not litigated in
abstract – it must be anchored in a concrete and ongoing controversy.
Without that, the court is left swinging at shadows. Once th at underlying
dispute is resolved , so too is the basis for adjudication.
86. In Stransham -Ford, the live disp ute was extinguished by the applicant’s
death – the legal flame, so to speak, flickered out before judgment could be
handed down. In Solidariteit Helpende, the dispute dissolved when the
regulations were repealed , the legal ban they had imposed no longer
existed, and with it, the controversy fell away. By contrast, in this matter, the
lawfulness and legal effect of the 2021 plan has lost traction because of the
28 For example, this Court has applied the principle in Vinpro NPC v President of the Republic of
South Africa [2021] ZAWCHC 261 (3 December 2021); Studenteplein v Stellenbosch [2022]
ZAWCHC 183 (15 September 2022].
developers’ subsequent action and current stance. In short, there is no
longer any axe to grind.
87. Even if there was once an axe to grind, the battlefiel d has shifted. The City’s
approval of the revised plan, which effectively superseded the 2021 plan,
rendered the dispute academic. As confirmed in Searle , the approval of a
replacement plan extinguish es any legal controversy arising from the
original. The dispute concerning the 2021 plan has thus voyaged to the
second review application, where it now properly belongs.
88. As concluded in paragraph s 59 and 63 above, there is no longer a live
dispute requir ing adjudication. Here too, the court must fold its arms.
Conclusion
89. This case underscores that the doctrine of mootness applies with
undiminished force in the realm of administrative law. Courts are not in the
business of settling abstract disputes or issuing advisory opinions dressed
up as judgments. Once the legal consequences of the impugned decision
have fallen away, the courtroom ceases to be a forum for resolution. Judicial
restraint in such a setting does not dilute the rule of law — it safeguards the
constitutional boundaries within which the judicial function must operate.
90. In the circumstances, the review application must therefore be dismisse d,
with costs . But what costs are warranted in the circumstances of this case ?
Costs
91. The gen eral principle is that costs follow the result. A successful party is
ordinarily entitled to its costs unless the court finds that there are
circumstances justifying a different order. The discretion to awards costs
must be exercised judiciously having reg ard to the facts, the conduct of the
parties, and broader interests of justice considerations .29
92. That principle is not inflexible, The Court may, in appropriate case s, depart
from it – particularly where success is partial or hallow, where a party has
contributed to the dispute or where broader considerations of fairness and
public interest demand a different outcome.
93. Punitive costs orders, such as those on the attorney -and-client scale, are
reserved for exceptional cases where a party has acted vexatious ly,
frivolously, abusively or in a manner deserving of judicial censure. Conduct
such as persisting with litigation that has become moot, or rejecting a
reasonable offer of settlement may justify such an order.30
94. In this case, t he relief sought by the applicants has been unopposed since
June 2023. After receiving the developers’ revised plan, the City advised the
applicants in May 2023 that it no longer opposed the review and accepted
that its earlier approval should be set asid e.
95. On 21 June 2023, the developers filed a notice to abide the outcomes of the
review application. From that point, the matter was clearly unopposed. The
applicants however took no steps to bring it to finality or obtain the relief they
now seek.
96. When the Ci ty approved the revised plan on 27 November 2023, t he
application became moot. The applicants took no action until February 2024 ,
after construction resumed in terms of the revised plan .
97. In February 2024, t he applicants propos ed an order setting aside both
approvals, interdict ing the City’s future exercise of public powers to approve
building plans over Erf 1[...], and seeking costs on a n attorney -and-client
29 Cilliers, Loots and Nel, Herbstein & Van Winsen ’s The Civil Practice of the High Courts of South
Africa , 5th Edition, Volume 2, p p 954 – 957.
30 Cilliers supra , p 967 and pp 971- 973.
scale. The City rejected the proposed order. The applicants the reafter
launched a second review appli cation .
98. In June 2024, the City proposed a draft order to resolve this application and
the associated matters on appeal . The draft order recorded th at the matter
had become moot and included a favourable costs order for the applicants
up to that date, to be born by the developers . The developers accepted th e
terms of the draft order , including liability for review costs.
99. The applicants rejected the m without providing cogent reasons. This is
regrettable . They were entitled to their costs for what was, at its inception, a
meritorious review . The opportunity to recover those costs was lost by their
own refusal.
100. As stated, from June 202 3, the matter was unopposed . Yet the applicants
declined to fi nalise it . Instead , it relied on the earlier interim order by Gamble
J and compliance order by Fortuin J to continue to half construction even
under a validly approved revised plan. In my view, t his litigation ceased t o
function as a bona fide review and b ecame a mechanism to frustrate lawful
construction.
101. The developers have achieved substantial success in th ese proceedings.
While they failed to establish that the 2021 plan had lapsed under the
Building Act , they succeeded in the overall result: the validity of the 2021
plan was rendered moot by the approval of the revised plan . They seek a
costs order, including costs of two counsel .
102. The developers were the originators of this dispute. They submitted an
unlawful plan, obtained its approval and only concede d its defects after
litigation had commenced. It was only thereafter that they renounced their
rights and submitted a revised plan. However, t heir later offer to resolve the
matter including costs, was unreasonably rejected.
103. I am accordingly inclined to grant the developers a costs order – but only for
the costs occasioned by the applicants’ persistence with the review from 27
November 2023 onwards, the date on which the application became moot.
104. The City seeks a punitive costs order against the applicants. It raises two
grounds for this order: first, that the applicants persisted with a moot
application at public expense; and second, that they made unsubstantiated
and gratuitous allegations of bias and procedural impropriety against the City
and its officials – allegations were never withdrawn or substantiated.
105. While t he City has been wholly successful in resisting the application, I am
not persuaded that a punitive costs order is warranted. It was th e City’s
approval of the 2021 plan that precipitated this litigation, which at inception
was well-founded . The City has not explained how the unlawfulness of the
plan, it later conceded, escaped its detec tion at the approval stage. These
considerations weigh against an exceptional order.
106. That said, once it receiv ed the revised plan, the City acted responsibl y. It did
not oppose the review, accepted that the prior approval should be set aside,
and made repeated efforts to resolve the matter . Its attempts at resolution
were constructive and failed through no fault of its own.
107. The same cannot be said of the applicants. Between May and November
2023, they had ample opportunity to finalise the matter while it remained
unopposed. After November 2023, they were aware of the mootness
defence, yet they persisted – proposing sweeping and untenable relief in
February 2 024 and rejecting a reasonable offer in June 2024 that would
have disposed of the matter on favourable terms for them.
108. In the circumstances, although I decline to grant a punitive costs order, I am
satisfied that the applicants should bear the costs incur red by the City and
the developers from 27 November 2023, including costs of two counsel .
109. This allocation of costs reflects the principle that while applicants were
justified in initiating these proceedings, their refusal to withdraw or settle
after the m atter became moot shifted the burden of liability in relation to
costs .
110. I therefore make the following order:
110.1. The application is dismissed.
110.2. The applicants are directed to pay :
110.2.1. The City’ s costs incurred from 27 November 2023 onwards,
including the costs of two counsel, such costs to be taxed
on Scale C for Senior Counsel and Scale B for Junior
Counsel; and
110.2.2. The developers’ costs incurred from 27 November 2023
onwards, including the costs of two counsel, such costs to
be taxed on Scale C for Senior Counsel an d Scale B for
Junior Counsel.
_____________________ ____________
GSS KHOZ A
ACTING JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
APPEARANCES
For the applicants: Adv D Irish SC, with Adv D Lubbe , instructed by Mr LJ van
Rensburg and Co.
For the first to third respondents: Adv J Muller and Adv D Baguley , instructed by
Slabbert Venter Yanoutsos Inc.
For the fourth respondent: Adv R Paschke SC, with Adv M de Beer , instructed by
Fairbridges Wertheim Becker