Brief Summary

Administrative Law — Interim interdict — Application to rescind interim interdict preventing building work on property. The applicant, Ms Peretz, sought to rescind an interim interdict that prohibited her from conducting building work on her property, pending a review of planning approvals granted by the City of Cape Town. The legal issue revolved around whether the legal and factual basis for the interim interdict had disappeared, as claimed by Ms Peretz, against the Camps Bay ratepayers' contention that the interim order should remain in effect. The court concluded that the interim interdict should remain in place due to the ongoing legal issues surrounding the planning approvals.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took the form of an application to rescind, alternatively vary, an interim interdict granted on 13 December 2021 by Henney J in Part A of the main application under case number 19069/2021. The interim interdict restrained the applicant from continuing building work on her property in accordance with building plans approved by the City of Cape Town, pending a review application brought by certain respondents challenging the City’s planning approvals.

The applicant was Adrienne Peretz. The respondents included the City of Cape Town (first respondent), certain provincial and administrative functionaries, and private parties associated with the opposition to the development. In this rescission application, the sixth to ninth respondents (collectively referred to in the judgment as the Camps Bay ratepayers) made common cause in resisting the rescission and were centrally involved in the interlocutory steps that led to the postponement.

The matter came before Greig AJ for hearing on 3 December 2025, but the merits of the rescission application were not reached. Instead, the court was confronted with interlocutory disputes arising from the late filing of further affidavits and the propriety of procedural steps taken shortly before and during the hearing. A related application by the City to reconsider or set aside the interim interdict existed under the same case number, but it was not ripe for hearing and was not heard together with the applicant’s rescission application on the allocated date.

The general subject-matter of the broader dispute concerns planning approvals granted by the City and the legality of building works undertaken pursuant to those approvals. However, the judgment delivered by Greig AJ was directed narrowly to the strikeout application launched during the hearing and, most substantially, to the allocation of wasted costs occasioned by the postponement on 3 December 2025, together with case-management style directives for the further conduct of the proceedings.

2. Material Facts

The interim interdict granted on 13 December 2021 prevented the applicant from conducting further building work under City-approved plans, pending the determination of a review application brought by the Camps Bay ratepayers. The planning approvals at issue had been granted approximately four years before the interim interdict, and the judgment records that the approvals were granted almost 10 years ago at the time of hearing, underscoring the protracted nature of the underlying dispute and the delays affecting its progress.

The court treated as significant the procedural chronology concerning affidavits filed in the rescission application after the applicant’s replying affidavit. The applicant delivered a replying affidavit on 16 September 2022 and later delivered a further supplementary affidavit on 29 November 2023 without an accompanying substantive application for its admission. This affidavit was referred to as the “2023 affidavit”. More than two years later, shortly before the hearing, the Camps Bay ratepayers objected to that affidavit and threatened proceedings to protect their clients’ rights if the document was not removed from the file.

Instead of launching the threatened proceedings at that stage, the Camps Bay ratepayers delivered a further affidavit on 25 November 2025, accompanied by an application seeking the exceptional admission of that further affidavit. The following day, 26 November 2025, the applicant delivered a further affidavit (the “26 November affidavit”) without an accompanying application for its exceptional admission.

On the hearing date, the Camps Bay ratepayers initially pursued an application to strike the matter from the roll or obtain a postponement, brought on notice of motion but without a supporting affidavit. During argument, that postponement/strike application was withdrawn without explanation and without a tender of costs. In its place, the Camps Bay ratepayers handed up an application to strike out numerous paragraphs of the applicant’s 26 November affidavit, on the basis that it introduced contentious new matter.

The court regarded it as material that, at the time the strikeout application was launched, no ruling had yet been made on whether any of the further affidavits filed after the replying affidavit (including affidavits filed by both sides) would be admitted, and that the applicant’s 26 November affidavit itself had been delivered without any accompanying application for admission. This state of flux in the papers, coupled with the late interlocutory litigation on the hearing date, rendered it impossible for the court to proceed to the merits of the rescission application on 3 December 2025.

3. Legal Issues

The central legal questions determined in this judgment were procedural and discretionary rather than substantive. The court was required to determine whether the Camps Bay ratepayers’ strikeout application could properly be adjudicated at the time it was launched, given the unresolved question of whether the relevant further affidavits (including the 26 November affidavit) were properly before court and admissible.

A further central question concerned the appropriate allocation of wasted costs resulting from the postponement of the hearing on 3 December 2025. This required the court to decide where responsibility lay for the abortive proceedings and whether the conduct of the parties (particularly the Camps Bay ratepayers) justified an adverse costs order, including the scale and the costs of two counsel.

The dispute engaged primarily the application of procedural law and judicial discretion to the facts, including an evaluative assessment of delay, procedural choices, the timing of objections, and whether the interlocutory steps taken were justified and properly supported. The court’s determination did not involve deciding the merits of the rescission application or the underlying planning-law review, but rather the propriety and consequences of the interlocutory skirmishing that prevented the merits from being heard.

4. Court’s Reasoning

The court emphasised that the strikeout application was premature because it was launched in a procedural “limbo” where the admissibility of any of the parties’ further affidavits filed after the replying affidavit had not yet been determined. The judgment accepted as a point of principle that further affidavits in motion proceedings are not filed as of right, and that their admission generally requires leave of the court on a proper explanation, consistent with the approach articulated in Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C). Against that background, the court reasoned that it could not sensibly rule on whether particular paragraphs constituted impermissible new matter in reply when it had not yet determined whether the affidavit containing those paragraphs was properly before it.

The court also noted that the Camps Bay ratepayers’ own position entailed that a ruling on admissibility could not be made where no substantive application for admission had been delivered. That position, coupled with the absence of any prior ruling admitting the post-reply affidavits, made the strikeout application misconceived. The court therefore held that adjudicating the strikeout relief at that stage was not possible and that the application could not resolve the procedural impasse.

On wasted costs, the court exercised its discretion by evaluating the timing and conduct of the parties. While the court accepted the cogency of the criticism that affidavits were filed out of sequence without proper applications for their admission, it considered the broader context. In particular, it found that the Camps Bay ratepayers’ objection to the 2023 affidavit was raised over two years after it had been filed and was not properly explained. The court rejected the justification that the affidavit could simply be ignored as pro non scripto until it appeared in the index, holding that procedural compliance is not a “game” and that available procedural remedies should be invoked timeously.

The court attached weight to the existence of the Rule 30 procedure for irregular steps, which was available shortly after the 2023 affidavit was filed, yet was not utilised. Although the court recognised that failure to invoke Rule 30 does not necessarily alter the legal position as to the proper set of affidavits, it treated the non-use of available procedures as relevant to assessing responsibility for the later postponement. The court further reasoned that, irrespective of any notional entitlement to treat the affidavit as pro non scripto, that was not the approach adopted in practice. Instead, late objections led to a late responding affidavit, which in turn triggered a further affidavit from the applicant, followed by last-minute applications on the hearing date.

The court regarded the postponement/strike application as procedurally deficient because it sought substantive relief without a supporting affidavit, resulting in submissions from the bar venturing into factual matters without proper evidential foundation. The withdrawal of that application during argument, without tendering costs, and its replacement with a belated strikeout application, reinforced the court’s conclusion that the bulk of the hearing day was consumed by eleventh-hour interlocutory manoeuvring for which the Camps Bay ratepayers bore primary responsibility.

In assessing costs, the court considered that the interim interdict had been in place since 2021, and that further delays were not contrary to the Camps Bay ratepayers’ interests. Without making a finding that the motive was delay, the court accepted that the parties could not have been unaware that the interlocutory disputes pursued on the day would inevitably cause a further postponement. On this evaluative basis, the court concluded that the wasted costs should be borne by the Camps Bay ratepayers (sixth to ninth respondents).

5. Outcome and Relief

The court did not determine the merits of the rescission application on 3 December 2025. It held that the strikeout application launched during the hearing was premature and misconceived, because it was brought before any ruling on the admissibility of the sequence of further affidavits filed after the replying affidavit.

The court issued procedural directives regulating further steps in the matter. It ordered that any party wishing to file a further affidavit in response to the applicant’s 26 November affidavit had to do so within 15 court days from the date of the order. It directed that, after the delivery of such affidavit or the lapse of that period, and after delivery of the requisite applications and affidavits concerning the admission of the parties’ post-reply affidavit sets, the parties were granted leave to approach the Judge President for allocation of a new hearing date.

The court further directed that the rescission application should, as far as possible, be heard together with the City’s related reconsideration application dated 23 May 2024, unless that application had been withdrawn or was not proceeding. It also directed that any further heads of argument needed on the affidavit-admission issues, strikeout applications, or related matters be delivered at least 10 court days before the postponed hearing.

On costs, the court ordered that the sixth to ninth respondents pay the wasted costs of the hearing on 3 December 2025, including the costs of two counsel where employed, on scale C.

Cases Cited

Whittaker v Roos and Bateman 1911 TPD 1092

Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C)

Waltloo Meat and Chicken SA (Pty) Ltd v Silvy Luis (Pty) Ltd and Others 2008 (5) SA 461 (T)

Hano Trading CC v JR 209 Investments (Pty) Ltd and Another 2013 (1) SA 161 (SCA)

Legislation Cited

City of Cape Town Planning By-law, 2015

Rules of Court Cited

Uniform Rules of Court, Rule 30

Held

The court held that the strikeout application directed at portions of the applicant’s 26 November 2025 affidavit was not capable of determination at that stage because the admissibility of the post-reply affidavits had not yet been decided, and the strikeout relief was therefore premature and misconceived. The court further held that the postponement of the hearing on 3 December 2025 was unavoidable due to the late, procedurally defective, and shifting interlocutory applications pursued on the day, and that responsibility for the wasted costs lay primarily with the sixth to ninth respondents. Procedural directives were issued to regulate the filing of any further affidavits and the steps required to ready the matter for a properly constituted hearing, ideally together with the City’s related reconsideration application.

LEGAL PRINCIPLES

The judgment applied the principle that further affidavits in motion proceedings are not filed as of right and require leave of the court, which is exercised on discretion and generally requires a satisfactory explanation and consideration of prejudice, consistent with Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C).

The judgment recognised that procedural mechanisms exist to address irregular steps, including the Rule 30 procedure, and that the failure to invoke available remedies timeously may be relevant when a court exercises its discretion on wasted costs arising from late procedural disputes.

The judgment applied a discretionary approach to wasted costs, allocating responsibility by examining the timing of objections, whether interlocutory applications were properly supported, the withdrawal and reformulation of relief sought during argument, and the causal connection between that conduct and the inability to proceed with the merits on the allocated hearing date.

The judgment further reflected the principle that a court may issue case-management directives to prevent procedural derailment and to facilitate the orderly determination of interlocutory disputes concerning the admissibility of affidavits and the scheduling of related applications that should sensibly be heard together.

Peretz v City of Cape Town and Others (19069/2021) [2026] ZAWCHC 8 (19 January 2026)