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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
CASE NO: 6707/2022
In the matter between:
THE GREEN POINT RESIDENTS AND
RATEPAYERS’ ASSOCIATION First Applicant
THE TRUSTEES FOR THE TIME BEING
OF THE RUSNIC TRUST (I[...]) 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 on: 4 June 2025
Order Issued on: 29 August 2025 (by electronic mail to the parties)
Judgment delivered on: 22 September 2025
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
KHOZA AJ
Introduction
[1] On 29 August 2025, I granted an order dismissing the applicants’ application
for leave to appeal to the Supreme Court of Appeal or, alternatively, to the Full Court
of this Division against this Court’s judgment of 11 April 2025 and directing the
applicants to pay the costs of the application, including the costs of two counsel ,
where so employed.
[2] These are the reasons for that order.
Applicable legal standard
[3] Section 17(1) of the Superior Court Act 10 of 2013 provides that leave to
appeal may be granted where the court is of the opinion that:
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration;
(b) the decision sought on appeal does not fal l within the ambit of section
16(2)(a); and
(c) where the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead to a just and prompt resolution of the real
issues between the parties.
[4] Section 16(2)(a) governs moot appeals and reads:
(a)
(i) When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or result , the appeal
may be dismissed on this ground alone.
(ii) Save under excep tional circumstances, the question whether the
decision would have no practical effect or result is to be determined
without reference to any consideration of costs.
[5] To succeed in this application, the applicants were required to satisfy this
Court that: (a) they have a reasonable prospect of success; (b) there is some other
compelling reason why the appeal should be heard; (c) a decision on appeal would
have practical effect; and (d) the appeal would lead to a just and prompt resolution of
the real issues between the parties.
[6] The principles governing the grant of leave to appeal are well settled. They
emphasise that leave is not a mere formality, but a stringent threshold designed to
ensure that only appeals with real merit proceed.
[7] In S v Smith 2012 (1) SACR 567 (SCA) at 570, para 7) , the SCA held that the
test of reasonable prospects of success postulates a dispassionate decision, based
on the facts and the law, that a court of appeal could reasonably arrive at a
conclusion different to that of the trial court. To succeed, an applicant must
demonstrate on proper grounds that the appeal has a real, as opposed to a remote,
chance of success. There must be a rational and persuasive basis for concluding
that such prospects exist.
[8] Similarly, in MEC for Health, Eastern Cape v Mkhitha and Another [2016]
ZASCA 176 (25 November 2016) at para 17, the SCA confirmed that the prospects
of success must be realistic rather than remote, and that “a mere possibility of
success, an arguable case, or one that is not hopeless is not enough.”
[9] Further, in Tecmed Africa (Pty) Ltd v Minister of Health and Another [2012] 4
All SA 149 (SCA) at para 17, the SCA reaffirmed that appeals lie against the
All SA 149 (SCA) at para 17, the SCA reaffirmed that appeals lie against the
substantive order of a court and not against the reasons for judgment. Whether or
not an appeal court agrees with the reasoning of the trial court is immaterial if the
result would remain the same ( Western Johannesburg Rent Board v Ursula
Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 354)).
[10] When measured against the statutory threshold in section 17 of the Superior
Courts Act, and informed by the principles articulated in Smith, Mkhitha and Tecmed,
it is plain that the applicants’ case falls well short.
[11] Their grounds of appeal are directed largely at this Court’s reasoning rather
than its operative order , an appr oach the SCA in Tecmed made clear is
impermissible. They also recycle arguments already dismissed in the main
application without identifying any misdirection capable of persuading another court
to reach a different conclusion, contrary to the test in Smith and Mkhitha.
[12] On every front, therefore, the application runs counter to the settled principles
governing leave to appeal.
Grounds of appeal
[13] The applicants advance several grounds of appeal, all of which repeat
arguments previously ventilated in the main application . In essence, they contend
that this Court erred:
[13.1] in holding that the review of the 2021 building plan approval had
become moot as a result of the developers’ abandonment of that
approval and the City’s approval of a revised plan in November 2023;
[13.2] in finding that the 2021 plan could lawfully be abandoned, that such
abandonment extinguished its legal force, and that successors in title
could not rely upon it;
[13.3] in holding that the approval of the 2021 plan did not implicate the public
interest in a manner that precluded waiver;
[13.4] in misinterpreting the Constitutional Court’s decision in Walele v City of
Cape Town 2008 (6) SA 129 (CC), by adopting too wide a pr oposition
that plan approvals do not affect neighbouring rights;
[13.5] in relying on Searle v Mossel Bay Municipality [2009] ZAWCHC 9 for
the conclusion that the 2021 approval had been superseded; and
[13.6] in granting a costs order against the applicants in circumstances where
they maintain that their application raised issues of public interest.
[14] These grounds disclose no reasonable prospect that another court would
reach a different conclusion.
Merafong
[15] The applicants contend that the City was not entitled to “disregard” its earlier
approval of the 2021 plans . They rely on Merafong City Local Municipality v
AngloGold Ashanti Ltd 2017 (2) SA 211 (CC), read with Oudekraal Estates (Pty) Ltd
v City of Cape Town 2004 (6) SA 222 (SCA) and MEC for Health, Eastern Cape v
Kirland Investments (Pty) Ltd t/a Eye & Laser Institute 2014 (3) SA 481 (CC). Those
authorities establish that an apparently binding administrative act stands until set
aside by a court and may not simply be ignored.
[16] The characterisation of the City’s action is wrong. The City did not treat the
2021 approval as a nullity or refuse to comply with it. Faced with a fresh application,
it exercised its statutory powers under s ections 4 and 7 of the Building Act to
determine that appli cation, while the developers , who were the sole beneficiaries of
the 2021 approval , unequivocally abandoned reliance on it. By approving a new set
of plans, the City did not purport to undo its earlier decision outside the bounds of
law. It lawfully re-exercised its power, this time on a different factual footing.
Mootness
[17] The applicants maintain that because certain features of the 2021 plans were
replicated in the 2023 plans and the City did not concede the review grounds, their
review of the first approval is not moot. That submission cannot be sustained. Any
objection to those replicated features must be pursued in relation to the 2023
approval. Nor does the City’s refusal to concede the review grounds serve to keep
the earlier dispute alive.
[18] The governing principle in mootness is whether setting aside the 2021
approval would produce any practical effect. It plainly would not. Once the
approval would produce any practical effect. It plainly would not. Once the
developers abandoned reliance on the 2021 approval and the City granted fresh
approval in 2023, the earlier approval ceased to have operative effect. Setting it
aside now would not undo the 2023 approval or alter the rights and obligations
flowing from it. It would not resolve all the issues between the parties.
[19] To permit parallel litigation directed at an approval that has already been
overtaken would offend the doctrine of mootness, whose function is to ensure that
courts pronounce only on live controversies with real consequences.
[20] Further, the applicants’ election not to amend their notice of motion to include
a challenge to the 2023 approval, and not to seek consolidation of the two
proceedings, confirmed that the present review would yield no practical utility. Their
litigation strategy left the 2021 review barren of live issues.
Waiver and abandonment
[21] The applicants argue that another court could find that the 2021 approval
could not lawfully be abandoned. I do not agree. The approval conferred rights solely
upon the developers, and at common law such rights may be waived or renounced
unless legislation expressly provides otherwise. The Building Act contains no
provision to the contrary.
[22] There is accordingly no reasonable prospect that another court could find that
the developers were bound to persist with rights they had expressly abandoned, or
that the 2021 approval retained operative effect after the 2023 approval was granted.
Walele
[23] The applicants furthe r submit that another court could find that this Court
misapplied Walele. I am not persuaded. The Constitutional Court in Walele held that
the approval of building plans is a regulatory act that engages the local authority’s
statutory duties. It did not ho ld that such approval confers enforceable rights upon
neighbours or that their interests are directly adjudicated at that stage.
[24] This understanding has since been endorsed by the S CA in City of Cape
Town v Reader 2009 (1) SA 555 (SCA), which confirmed that plan approvals are
decisions between the applicant and the municipality, subject of course to the
statutory standards.
[25] Against this backdrop, there is no reasonable prospect that another court
could interpret Walele as the applicants suggest. The applicants’ interpretation
attributes to Walele a breadth it does not bear.
Successor in title
[26] The applicants also challenge this Court’s finding that successors in title could
not rely on the 2021 approval once it had been abandoned by the original developer.
There is no reasonable prospect that another court could conclude otherwise.
[27] A successor acquires no greater rig hts than those held by the predecessor.
Where the predecessor has renounced the benefit of an approval, no legal
foundation exists for a successor to revive or rely upon it. To hold differently would
be to confer greater rights upon a successor than those enjoyed by the original
holder, an outcome neither recognised by principle nor supported by authority.
Supersession by the 2025 approval
[28] The applicants further challenge this Court’s finding that the approval of the
2023 plans superseded the 2021 approval. I am not persuaded that there is any
reasonable prospect another court could reach a different conclusion. Sections 4 and
7 of the Building Act authorise the local authority to entertain fresh applications, and
once such an application is granted , it necessarily displaces reliance on any earlier
approval. This principle has been recognised in the case law, including Searle.
Costs order
[29] The applicants also challenge this Court’s costs order. I do not consider there
to be any reasonable prospect another court could interfere. Once the developers
had abandoned the 2021 approval and the City approved a new set of plans, the
continuation of proceedings directed solely at the 2021 approval became
inappropriate.
[30] The respondent s were nonetheless put to the expense of resisting litigation
that no longer had practical utility. This Court’s decision to award costs reflected a
proper exercise of discretion consistent with the principle that costs follow the result.
Conclusion
[31] On the application of section 17(1) of the Superior Court Act, the applicants
have not shown reasonable prospects of success, any compelling reason for the
appeal to be heard, that a decision on appeal would have practical effect, or that it
would resolve t he real issues between the parties. The application for l eave to
appeal must fail.
Order
[32] The following order is made:
1. The application for leave to appeal is dismissed.
2. The applicants are to pay the costs of the application, including the
costs of the two counsel, where so employed.
___________
GSS KHOZA
ACTING JUDGE OF THE HIGH COURT
CASE NO: 6707/2022
APPEARANCES
For the Applicants: Adv D Irish SC, with Adv D Lubbe
Instructed by: Van Rensburg and Company
For the First to Third Respondents: 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 Attorneys