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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
In the matter between:
LIV PADEL (PTY) LTD
PERRY BRIDGE CITRUS ESTATE (PTY) LTD
And
THE EXECUTIVE MAYOR OF KNYSNA MUNICIPALITY
(In his capacity as The Appeal Authority)
KNYSNA LOCAL MUNICIPALITY
THANDO CHARLES MATIKA
Coram:
Heard on :
Delivered on:
DA SILVA SALIE, J
17 December 2025
18 December 2025
Not Reportable
Case No : 2025-242003
First Applicant
Second Applicant
First Responden t
Second Respondent
Third Respondent
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Summary:
Administrative law - interim interdict - municipal land-use decision - appeal decision
imposing immediate prohibition on public use - delayed communication of appeal
outcome - urgency - interim suspension pending review - non-joinder - residents
as complainants acting through municipality - joinder assessed contextually with
reference to nature and effect of relief - balance of convenience - interim relief
granted - review to be instituted within 60 days - each party to pay own costs.
ORDER
1. The implementation and enforcement of the appeal decision communicated on 3
December 2025 is suspended, pending the determination of the review
application to be instituted by the applicants.
2. The applicants shall institute review proceedings within 60 (sixty) days of the
date of this order.
3. Each party shall pay its own costs.
JUDGMENT
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DA SILVA SALIE J
INTRODUCTION
[1] This is an urgent application brought in two parts relating to Padel Courts situate
in Knysna-Hollow. In Part A, the applicants seek interim relief suspending the
implementation of an appeal decision taken by the first respondent, pending the
determination of review proceedings to be instituted under Part B.
[2] Only Part A serves before this Court. The merits of the review fall to be determined
in due course.
[3] The respondents oppose the application on several grounds, including urgency,
non-joinder, legal standing, the absence of a prima facie right, lack of irreparable harm,
the balance of convenience, availability of alternative remedies, and costs.
FACTUAL BACKGROUND
[4] The first applicant operates padel courts in the Knysna area trading as Liv Padel
Knysna Hollow ("the padel courts") situated on land owned by the second applicant,
pursuant to a lease agreement concluded during 2022. The facility has been operational
and open to the public since March 2023. Subsequent to a decision by the Municipality,
the subject of this application, the padel courts have been shut since 4 December 2025
to the public.
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[5] The property is zoned "Resort Zone". Building plans, including those relating to the
padel courts, were approved in January 2023.
[6] During 2023 a limited number of neighbouring residents lodged complaints,
principally relating to noise and lighting. An independent acoustic report commissioned
during that period concluded that no disturbing noise levels were present.
[7] A consent-use application was accepted by the municipality in April 2024. A
planning report issued in November 2024 supported the continuation of the use,
recommending mitigation measures such as reduced operating hours and operational
management. Enclosure of the courts was not recommended.
[8] Owing to a non-quorate meeting and a request for postponement which the
applicants believed had been acceded to, the consent-use application was determined in
their absence on 3 December 2024.
[9] An appeal was lodged. The applicants contend that the appeal decision was taken
on 27 November 2025. However, the notice provided to the applicants records that the
decision was concluded on 15 August 2025. The appeal outcome was only communicated
to the applicants on 3 December 2025, approximately 110 days later, notwithstanding a
statutory obligation to notify the outcome of the appeal within 21 days.·
[1 O] The appeal outcome upheld a requirement that the padel courts be enclosed within
six months and, for the first time, imposed an immediate prohibition on public use pending
enclosure, limiting access to resort residents only and restricting floodlighting. The resort
residents make up about 5% of the padel court's revenue.
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[11] The applicants wish to have the interim decision suspended pending the outcome
of the review of the enclosure decision in due course. In terms of the respondent's
decision, the first applicant is permitted to continue to operate the padel courts for guests
of the Knysna Hollow but not for the public. The Knysna Hollow is small, and the first
applicant will not survive if its business is limited to those guests which only account for
a small portion of its revenue.
THE RELIEF SOUGHT IN PART A
[12] At this stage, the applicants do not seek to set aside the appeal outcome. They
seek the interim suspension of its immediate implementation, contending that
enforcement would cause irreparable harm and render the contemplated review nugatory.
URGENCY
[13] Where the immediate implementation of an administrative decision threatens to
cause irreversible consequences before its lawfulness can be tested, urgency is
established (Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another 1977 (4)
SA 135 (W) at 137F-G). In this matter, the operative alleged prejudice arose once the
appeal outcome was communicated on 3 December 2025 and implemented immediately
at the commencement of the festive season. The applicants were required to shut down
public operations, with the consequence that bookings already made had to be cancelled
and reimbursed, giving rise to immediate and tangible prejudice.
[14] The applicants acted promptly thereafter in the launch of this application. It is
subm itted that the matter is urgent as substantial and meaningful redress in due course
would not be available and without the anticipated revenue, they would suffer financial
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loss to the extent that liquidation is inevitable and employees of the padel courts would
lose their jobs. I pause to add that the applicants no longer seek relief against the third
respondent.
[15] The matter was accordingly urgent.
NON-JOIN DER
[16] The respondents contend that the application is fatally defective by reason of the
non-joinder of residents who lodged complaints with the municipality.
[17] The principle is trite that a party must be joined where it has a direct and substantial
interest in the order which the Court may grant.
[18] However , the rule relating to joinder is not mechanical. Whether non-joinder is fatal
must be assessed contextually, with reference to the nature and effect of the relief sought.
[19] In Bester NO v Mirror Trading International (Pty) Ltd 2024 (1) SA 112 (WCC)
paras 22-25, this Court reaffirmed that a practical and common-sense approach must
prevail.
[20] The relief sought in Part A is interim in nature. It does not finally determine any
land-use rights, nor does it confer or extinguish rights held by residents.
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[21] The residents are not decision-makers. Their role was that of comp lainants
invoking municipal oversight. Their concerns were ventilated w ithin the administrative
process and are relied upon by the respondents in opposition.
[22] The municipality, as the repository of the public power exercised, is cited and
properly before this Court.
[23] To require the joinder of all affected residents in these circumstances would elevate
form over substance and would be impractical. Even if joinder were desirable, it would
not be just to non-suit the applicants (Marais v Pongola Sugar Milling Co Ltd 1961 (2)
SA 698 (N) at 702F).
[24] The non-joinder objection cannot be sustained.
LOCUS STANDI:
[25] The respondents further contend that the first applicant lacks standing to seek the
relief claimed on the basis that it was not the forma l applicant in the consent-use or appeal
process. The subm ission is however misconceived. Legal standing does not depend on
whether a party initiated the underlying administrative application but on whether it has a
direct and substantial interest in the relief sought and is adversely affected by the decision
in issue. The first applicant is the operator of the padel facility. It is the entity that conducts
the business, contracts with members of the public, employs staff and bears the
immediate consequences of the appeal decision, including the shutdown of operations
and the cancellation and reimbursement of bookings.
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[26] The appeal outcome has direct and immediate operative effect on the first
applicant's existing activities. That is sufficient to confer standing to seek interim relief
pendente lite.
[27] The second applicant is the owner of the property on which the padel facility is
situated and the lessor under a subsisting lease. The impugned decision directly affects
the use of its property and the viability of the lease arrangement.
[28] A landowner whose property use is curtailed by an administrative decision has a
direct and substantial interest in seeking relief. The second applicant's interest in neither
remote or indirect. A party whose proprietary or operational interests are directly affected
by an administrative decision is not deprived of standing merely because another entity
initiated the planning application. I am satisfied that it is sufficient that an applicant
demonstrates a prima facie right deserving of protection and a material interest in
preventing irreparable harm pending review.
SUBSIDIARITY AND SECTION 33
[29] The respondents contend that reliance on section 33 of the Constitution
impermissibly bypasses PAJA.
[30] The submission misconceives the nature of Part A. The interim relief sought is
ancillary to, and in support of, review proceedings to be brought under PAJA. The
principle of subsidiarity does not preclude interim judicial intervention where immediate
implementation may render review relief academic or moot.
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[31] In relation to this submission counsel for the respondents herein relied on Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490
(CC), however, this authority concerns the source of review rights, not the availability of
interim protection as sought herein.
REQUIREMENTS FOR INTERIM RELIEF
Prima Facie Right
[32] An applicant must establish a prima facie right, though open to some doubt
(Setlogelo v Setlogelo 1914 AD 221 at 227).
[33] The applicants do not assert an unqualified right to operate free of regulation. They
assert a right to lawful and procedurally fair administrative action and to have a review
determined before irreversible consequences ensue.
[34] Whilst I agree with counsel for the respondents herein that the prospects of the
review do not come in to question in this application, I am however satisfied that a serious,
non-frivolous challenge has been demonstrated. This suffices at the interim stage (OUTA
v SANRAL 2013 (4) SA 639 (CC)).
Irreparable Harm
[35] The test is whether there is a reasonable apprehension of harm not capable of
adequate later remedy.
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[36] The immediate restriction of public operations during a finite peak period cannot
later be reconstructed. Lost opportunities and disruption to contractual and emp loyment
relationships are not readily quantifiable. It was argued for the respondents that the
applicants' reliance of loss of revenue over this period; inevitable consequent liquidation;
that emp loyees wou ld have to be dismissed from their employment; and similar other
grounds are not supported by financial statements, bank statements or confirmatory
affidavits and thus the Court cannot accept their contention of irreparable harm. I am not
persuaded that absent these supporting documen ts, the applicants must fail in their
illustration of irreparable harm. I am satisfied that the festive season, especially in the
Knysna area known for festive goers and tourists, is a revenue generating season for a
business such as this type of leisure activities.
[37] The apprehension of irreparable harm is thus established.
Balance of Convenience
[38] The residents' interests are legitimate and we re considered administratively.
H owever, the Court is not required in Part A to determine whether those interests
ultimately justify the impugned condition.
[39] Whilst the respondents retain regulatory powers, the applicants face immediate
and irreversible prejudice absent interim relief. I am m indful of the fact that there was a
delay in the issue of the notice, some 110 days later. Even if this time period is challenged
as it is by the respondents in that they contend it was concluded on 27 November 2025,
the timing as well as framing of the notice is pertinent. The notice requires the padel
courts to be enclosed immed iately (the interim decision). At the time of the notice (3
December 2025), the enclosure could not be constructed immediately given the close of
business in the building industry and the municipal offices itself to approve the enclosure
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structure. The notice was thus an effective and immediate shut down of the business as
opposed to affording the applicants an opportunity to install the enclosures. It is also
significant a fact that the initial decision, the enclosure decision, which was appealed
against, afforded the applicants time to enclose the padel courts, whilst the outcome of
the appeal against it was in practical terms substantially different. The decision stemming
from the appeal amounts to an effective shut down.
[40] In assessing the balance of convenience, it is material that the applicants have
operated the padel facility in its present form since March 2023. The interim relief sought
from this Court does not introduce a new state of affairs or situation but preserves the
position that has prevailed for a substantial period pending the determination of the
review.
Alternative Remedy
[41) The submission advanced on behalf of the respondents that the applicants ought
instead to have pursued an urgent review as an alternative remedy is misplaced. I agree
with counsel for the applicants that an urgent review would, by its very nature, require
substantially more preparation, a fuller record, and the compilation of extensive papers.
To suggest this as an effective alternative at this stage is to overlook the very purpose of
the interim relief sought, namely, to preserve the status qua and prevent irreparable
prejudice pending the proper ventilation of the review. The existence of a more onerous
and time-consuming process does not constitute an adequate alternative remedy in
circumstances where immediate implementation threatens to render the review
academic.
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CONCLUSION : PART A
[42] The applicants have established all the requirements for interim relief pendente
lite.
[43] The relief sought is limited and does not pre-empt the determination of the review
process contemplated in Part B.
COSTS
[44] The applicants have succeeded in obtaining interim relief in Part A. The question
of costs nonetheless remains one for the discretion of the Court, to be exercised judicially
upon a consideration of all the relevant circumstances.
(45] The ordinary principle that costs follow the result is a useful starting point, but it is
not a rigid rule. It yields where considerations of fairness, the nature of the proceedings,
or the conduct of the parties justify a different outcome.
[46] This application was brought in a public-law context, implicating the exercise of
statutory powers by a municipality, the interests of surrounding residents, and the
regulation of land use. It raised issues of urgency, interim relief pending review, non
joinder, standing and the balance between competing interests.
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[47] Importantly, the relief granted is interim and preservative in nature. It does not
finally determine the lawfulness of the appeal decision, nor does it resolve the substantive
rights of the parties. Those issues remain to be ventilated in the review proceedings under
Part B.
[48] The respondents' opposition, although ultimately unsuccessful, cannot be
characterised as frivolous, vexatious or unreasonable. The points raised were genuine,
arose within a complex regulatory framework, and were advanced in the discharge of
public functions.
[49] Having regard to the nature of the dispute, the interim character of the relief, and
the absence of conduct on the part of either side which warrants an adverse costs order,
I am satisfied that it is just and equitable that each party bear its own costs.
ORDER
[50] Wherefore I make the following order:
1. The implementation and enforcement of the appeal decision communicated
on 3 De cember 2025 is suspended, pending the determination of the review
application to be instituted by the applicants.
2. The applicants shall institute review proceedings within 60 (sixty) days of
the date of this order.
3. Each party shall pay its own costs.
Appea rances
For Applicant:
Instructed by:
For Respondent:
Instructed by:
WESTERN CAPE
Adv. G Ruther
Sohn and Associates Attorneys
c/o Sohn and Wood Attorneys
Adv. A Nacerodien
Webber Wentzel Attorneys
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