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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 2025-250950
In the matter between:
CITY OF CAPE TOWN Applicant
And
CAPE TOWN MINSTREL CARNIV AL ASSOCIATION Respondent
Neutral citation: Cape Town Minstrel Carnival Association v City of Cape Town (Case no
2025-250950) [2026] ZAWCHC … (22 June 2026)
Coram: LEKHULENI J
Summary: Application for leave to appeal. Applicable test – Appeal Moot – Appeal has no
reasonable prospect s of success – nor there exist any compelling reasons why an appeal
should heard - Application dismissed.
Heard: 4 May 2025
Delivered: 22 June 2026
JUDGMENT – LEA VE TO APPEAL
___________________________________________________________________________
LEKHULENI J:
Introduction
[1] This is an application for leave to appeal to the Supreme Court of Appeal
('the SCA'), alternatively, to the Full Court of this Division in terms of section
17(1)(a) of the Superior Courts Act 10 of 2013 ('the Superior Courts Act'),
against the whole judgment and order of this Court ('the main Judgment’)
handed down on 29 December 2025. In that judgment, this Court made an order
compelling the applicant (“the City”) to make available to the respondent a
suitable venue within its jurisdiction for the hosting of the respondent’s minstrel
competition events, being a medium -risk gathering as contemplated in the
Safety at Sports and Recreational Events Act 2 of 2010 (“SASREA”), on the
following dates:
1 January 2026;
10 January 2026;
17 January 2026; and
24 January 2026.
[2] The Court also ordered the city to pay the costs of th e application on a
party and party scale with such costs to include the costs of counsel on scale B.
The city now seeks leave to appeal to the SCA, alternatively to the Full Court
of this Division, against this Court’s decision . The respondent opposed the
City’s application and contended that there were no reasonable prospects of
success on appeal and that the appeal was moot.
Grounds of Appeal
[3] The city raised six grounds of appeal in its application for leave to appeal.
The city’s grounds of appeal, as discernible from the notice of appeal, may be
summarised as follows:
3.1 That this Court erred in finding that the matter was urgent in law;
3.2 That the Court erred in granting a final mandatory interdict in
circumstances where none of the three established requirements for an interdict
were satisfied;
3.3 That the Court erred in failing to apply the Plascon-Evans rule correctly
to material factual disputes;
3.4 That the Court erred in making factual findings relating to SASREA
compliance, including an unwarranted inference of bad faith against the city;
3.5 That the Court erred in finding that the city bore a positive constitutional
obligation derived from section 30 and 31 of the Constitution to provide the
respondent with an alternative venue; and
3.6 That the Court erred in finding that the city had created a legitimate
expectation, more particularly in treating the expectation as a source of
substantive entitlement rather than procedural protection.
[4] To this end, t he city asserts that the appeal has a reasonable prospect of
success.
Facts
[5] I have already dealt with the facts of this matter in detail in the main
judgment. Notwithstanding, to provide context to the order that follows, I
propose to set out a brief background to the present application. I do not,
however, intend to traverse the reasons for my findings, as those have been
comprehensively addressed in my written reasons delivered in terms of Rule
49 of the Uniform Rules of Court.
[6] The respondent brought an urgent application for a mandatory order
compelling the city to make available to it a suitable venue for the hosting of
its minstrel competition events scheduled for 1, 10, 17 and 24 January 2026. It
is common cause that on 13 August 2025 , Mr Kamaar, the respondent’s event
coordinator, formally requested the booking of Vygieskraal Stadium from the
city for 1, 10, 17 and 24 January 2026, for the respondent’s minstrel
competition. Ms Naude of the city confirmed that the requested dates were
available and that the booking could proceed. Pursuant thereto, the respondent
submitted a complete application for the letting of the stadium facility,
complying with all requirements set out by the city.
[7] On 17 September 2025, Mr B Kempt, the Area Head: Recreation and
Parks, of the city issued a booking confirmation letter confirming the booking
requested by the respondent. On 19 September 2025, following a correction of a
typographical error regarding the year, Mr Kemp issued a revised confirmation
letter confirming that Vygieskraal Stadium was booked for the respondent’s
minstrel competition for 1, 10, 17, and 24 January 2026.
[8] On 22 September 2025, three days after the corrected confirmation, Mr
Kemp suddenly cancelled the booking by way of a letter stating: “Please note
Vygieskraal Stadium is unavailable for the dates 01, 10, 17 and 24 January
2026 as your booking has been cancelled.” The respondent contended that no
reason was furnished for the withdrawal of the booking confirmation.
Moreover, no explanation was provided as to why the stadium was suddenly
deemed unavailable when it had been confirmed as available only days earlier.
The respondent further asserted that no consultation preceded this arbitrary
decision, nor were any alternative dates or venues offered.
[9] Aggrieved by this decision, t he respondent’s erstwhile attorney addressed
a formal letter of objection to the city and contended tha t the cancellation was
ultra vires and lacked legal foundation. The respondent’s attorney also argued
that the city failed to provide any valid reasons for the withdrawal and that the
city breached the doctrine of legitimate expectation by confirming the booking
and then withdrawing it arbitrarily. The respondent’s attorney asserted that the
cancellation constituted an unlawful, unreasonable and procedurally unfair
administrative action and that the city was discriminating against the
respondent.
[10] On 16 October 2025, the city’s attorney responded, denying the
allegations of unfair discrimination against the respondent. The city’ attorney
stated that the withdrawal was attributed to operational concerns regarding risk
grading under the SASREA which rendered the venue unsuitable for hosting a
minstrel event. The city’s attorney further asserted that the venue did not
possess the required risk grading to host events of this nature in terms of
SASREA. Moreover, the city’s attorney stated that the city’s decision to
withdraw the provisional booking was based solely on legitimate operational,
safety, and risk -management considerations and was in full compliance with
applicable laws and event management standards.
[11] On the other hand, t he respondent contended that the city’s reliance on
SASREA as a justification for the withdrawal of the booking was made in bad
faith. In the respondent’s view, the city had at least one SASREA -compliant
venue that could accommodate minstrel events. Yet, it had refused the
respondent’s request and failed to offer this alternative venue.
[12] On 23 December 2025, the respondent’s attorney addressed a letter to
the City Manager requesting a reversal of the decision to withdraw the
booking of Vygieskraal Stadium and that the respondent association be
permitted to proceed with its planned event. In the alternative, the attorney
requested that the city provide the respondent and its members with assistance
by identifying an alternative venue within Cape Town capable of
accommodating the event, which had been classified as a medium -risk
gathering, on the scheduled dates.
[13] The Court’s attention was also drawn to the fact that the respondent
addressed several letters to the city on 1 October 2025, 11 November 2025, and
21 November 2025 with a view to addressing the impasse between the parties.
According to the respondent, the city did not respond to these letters. The
respondent urged the Court to grant the relief sought to enable the respondent
and members of its association to participate in their cultural life and to protect
their living heritage as guaranteed in the Constitution.
[14] After considering the matter, I granted an order directing the city to
provide an alternative suitable venue to the respondent, thereby enabling it and
its association to vindicate their cultural heritage, as set out in the main
judgment. The City now seeks leave to appeal against that judgment to the
SCA, alternatively to the Full Court of this Division.
The applicable legal principles
[15] The city’s application for leave to appeal is based on section 17(1)(a) of
the Superior Courts Act. Section 17 of the Superior Courts Act regulates
applications for leave to appeal from a decision of a High Court. It provides as
follows:
‘(1) Leave to appeal may only be given where the judge or judges concerned are 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 fall 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.'
[16] The Superior Courts Act has raised the bar for granting leave to appeal.
Expressed differently, the provisions of section 17 of the Superior Courts Act
have now elevated the test to be applied for granting leave to appeal. The use of
the word ‘would’ when considering the prospects of success in section
17(1)(a)(i) now imposes a more stringent and vigorous threshold. In terms of
section 17(1)(a)(i), leave to appeal should be granted only when there is a sound
rational basis for the conclusion that there are prospects of success on appeal.
Under section 17(1)(a)(ii), leave to appeal may be given where there is some
other compelling reason why the appeal should be heard, including conflicting
judgments on the matter under consideration.
[17] In Ramakatsa and Others v African National Congress and Another, 1 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. In
other words, the city needs to convince this Court on proper grounds that it has
prospects of success on appeal. Those prospects of success must not be remote,
1 (724/2019) [2021] ZASCA 31 (31 March 2021) para 10.
but there must exist a reasonable chance of succeeding. A sound rational basis
for the conclusion that there are prospects of success must be shown to exist.
[18] As foreshadowed above, t he use of the word ‘would’ in section
17(1)(a)(i) of the Superior Courts Act implies that the test for leave to appeal is
now more onerous. The intention is clearly to avoid our courts of appeal for
being flooded with frivolous appeals that are doomed to fail. 2 The use of the
word ‘would’ in subsection 17(1)(a)(i) of the Act imposes a more stringent
threshold compared to the provisions of the repealed Supreme Court Act 59 of
1959.3
[19] In MEC for Health, Eastern Cape v Mkhita ,4 the SCA emphasised the
application for the test for leave to appeal and stated:
‘[16] Once again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable prospect of
success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that
leave to appeal may only be given where the judge concerned is of the opinion that
the appeal would have a reasonable prospect of success; or there is some other
compelling reason why it should be heard.
[17] An applicant for leave to appeal must convince the court on proper grounds that
there is a reasonable prospect or realistic chance of success on appeal. A mere
possibility of success, an arguable case or one that is not hopeless, is not
enough. There must be a sound, rational basis to conclude that there is a reasonable
prospect of success on appeal.’
2 See Valley of the Kings Thaba Motswere (Pty) Ltd and Another v Al Mayya International (EL926/2016,
2226/2016) [2016] ZAECGHC 137 (10 November 2016) para 4.
3 S v Notshokovu [2016] ZASCA 112 para 2; S v Van Wyk 2015 (1) SACR 584 (SCA) para 14.
4 2016 JDR 2214 (SCA).
[20] From the foregoing, it is abundantly clear that what the test of reasonable
prospect of success postulate is a dispassionate decision, based on the facts and
the law, that a Court of Appeal could reasonably arrived at a conclusion
different to that of the trial court. Thus, to succeed in this application, the city
must convince this Court on proper grounds that it has prospects of success on
appeal and that those prospects are not remote but have realistic chance of
succeeding.5 What is required of this Court is to consider, objectively and
dispassionately, whether there are reasonable prospects that another court will
find merit in the arguments advanced by the city.6
[21] I turn to consider the city’s application together with the grounds of
appeal ad seriatim.
Discussion
[22] At the hearing of th e leave to appeal application, the respondent’s
counsel, Ms Naidoo , argued that this application and the intended appeal are
moot. I therefore consider the question of mootness as the logically first
question to be decided . Ms Naidoo submitted that the relief sought by the
respondent was confined to specific dates and a defined time period. The filing
and noting of the application for leave to appeal rendered the respondent
unable to host its competition, with the result that the appeal has effectively
become moot. On the other hand, Mr Kirk -Cohen SC, counsel for the city,
argued that there are compelling reasons for the appeal to be heard. Counsel
argued that the matter is not moot as it establishes a precedent and that there is a
costs order that this Court granted against the city.
5 S v Smith 2012 (1) SACR 567 (SCA) para 7.
6 Valley of the Kings Thaba Motswere (Pty) Ltd and Another v Al Maya International [2016] 137 (ZAECGHC)
137 (10 November 2016) para 4.
[23] I must mention that m ootness is when a matter no longer presents an
existing or live controversy. 7 The doctrine is based on the notion that judicial
resources ought to be utilised efficiently and should not be dedicated to advisory
opinions or abstract propositions of law, and that courts should avoid deciding
matters that are abstract, aca demic or hypothetical. 8 In Agribee Beef Fund Ltd
and Another v Eastern Cape Rural Development Agency and Another ,9 the
Constitutional Court noted that a matter is moot where issues are of such a
nature that the decisions sought will have no practical effect or result.
[24] It is trite that courts of law exist for the settlement of concrete
controversies and actual infringement of rights, not to pronounce upon abstract
questions or to advise upon different contentions, however important. In Voltex
(Pty) Ltd v Venkatas and Others ,10 the Court held that mootness does not
deprive the court of jurisdiction, but it may affect the justiciability of the matter
and that an application that will have no practical effect or result may be
dismissed on that ground alone.
[25] In the present matter, the purpose of the main application and its urgency,
as I understood it, was to compel compliance with a pre -existing expectation
that had been created and to allow the respondent and its members to
meaningfully celebrate their culture and tradition on the dates specified in the
notice of motion. As discussed in the main judgment , the celebration of that
heritage is time bound. It is celebrated on the second day of each year. Once that
period passed, the purpose of the application became moot.
7 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at para 21.
8 J T Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC) para 15.
9 2023 (6) SA 639 (CC) paras 26-29.
10 Voltex (Pty) Ltd v Venkatas and Others [2025] ZAKZDHC 41 para 7.
[26] Even if leave to appeal is granted and the appeal is ultimately dismissed
by the Court of Appeal, the order previously granted by this Court directing
the city to provide a venue for the respondent for the 2026 Tweede Nuwe Jaar
minstrel competition will be pointless. The order will have no practical effect
because, upon the filing of the application for leave to appeal, the order was
automatically suspended. As a result, the minstrel competition could not take
place. In the circumstances, the said order serves no purpose. It has been
overtaken by events. The filing of the application for leave to appeal rendered
the lis between the parties moot as the period within which the event was to be
held had passed. In my opinion, a hearing of the appeal would constitute a
futile academic exercise.
[27] The city seems to hinge its opposition of mootness on the grounds that
this Court granted a costs order against it. It must be stressed that i n an appeal
against the exercise of a discretion on costs, the hurdle is formidable , as wa s
held in Zuma v Office of the Public Protector .11 In that case , the Constitutional
Court noted that i n granting a cost order, a lower court exercise d a true
discretion. The Court emphasised that a n appellate court will not interfere with
the exercise of that discretion, unless there was a material misdirection by the
lower court. In exercising its true discretion, I am of the view that th is Court
did not misdirect itself when it granted the costs order against the city.
[28] Finally on this point, as stated in Tecmed Africa v The Minister of
Health,12 courts should and ought not to decide issues of academic interest
that will have no practical effect . The cumulative effect of all the factors
discussed in the preceding paragraphs, is that no practical effect or result can
be achieved in this case. And for these reasons, the lis between the parties is
11 [2020] ZASCA 138 (30 October 2020) para 19.
11 [2020] ZASCA 138 (30 October 2020) para 19.
12 (495/11) [2012] ZASCA 64 (21 May 2012) para 20.
moot and the application for leave to appeal on this ground alone must fail.
However, for completeness, I will consider the six grounds of appeal that the
applicant raised in this matter.
Urgency
[29] The city contended that the respondent’s application was not urgent and
constituted an abuse of process and that the urgency pleaded was self -created.
The city argues that the respondent became aware of the withdrawal of its
Vygieskraal Stadium booking on or about 22 September 2025, and the city's
attorneys wrote to the respondent’s attorneys setting out the SASREA reason for
the withdrawal. Notwithstanding this knowledge, the respondent failed to
approach the court for relief until 27 December 2025, a period of more than two
months.
[30] It is trite that ‘urgency’ is not appealable. It is further trite that in
pronouncing on the issue of urgency, this Court exercised a discretion in a wide
sense. An appeal Court can only interfere with that discretion if it is manifest
that this Court misdirected itself. 13 In the main judgment , this Court explained
that the respondent did not immediately take legal steps to resolve the impasse
between the parties; however, it attempted to engage the city directly and
cordially to avoid litigation costs. To this end , the court referred to
correspondences dated 31 October 2025, 11 November 2025, and 21 November
2025, that the respondent addressed to the city none of which received any
response from the city.
13 Cornerstone Logistics (Pty) Ltd and another v Zacpak Cape Town Depot (Pty) Ltd
[2022] 2 All SA 13 (SCA) para 30.
[31] In my view, t he matter was extremely urgent. It is i ncontestable that
litigation is expensive. The respondent approached the court as a measure of last
resort. In the letter withdrawing the booking confirmation, the city provided no
reasons for its decision. It did, however, undertake to engage with the
respondents. When the respondents engaged the city, they were met with
deafening silence. As a result, the respondent vindicated its constitutional
rights in terms of section 34 of the Constitution and approached this Court on
an urgent basis for appropriate relief. From the objective facts, the suggestion
that the matter was not urgent is de void of substance and was accordingly
rejected. In any event, in my view, the urgency issue is now moot. This Court
had decided to hear and dispose of the matter on an urgent basis. That decision
cannot be undone .14
Erroneous grant of final interdictory relief
[32] The city contends that this Court erred in granting final relief in the form
of a mandatory interdict in circumstances where, so it avers, the respondent
failed to establish the essential requirements for such relief. In particular, the
city argues that the respondent failed to establish a clear right, which includes
any legal or constitutional right entitling it to compel the city to provide an
alternative venue. Moreover, the city asserts that the respondent failed to
establish a reasonable apprehension of irreparable harm and failed to
demonstrate that it could not obtain substantial redress in due course.
[33] I have already addressed these issues in the main judgment and deem it
unnecessary to revisit them in this judgment. Nonetheless, it is important to
note that in the main judgment this Court observed that the respondent made a
14 Cornerstone Logistics (Pty) Ltd and another v Zacpak Cape Town Depot (Pty) Ltd
[2022] 2 All SA 13 (SCA) para 30.
booking which the city initially confirmed but subsequently withdrew it
without providing any reasons or offering the respondent any avenue of
appeal. The withdrawal occurred after the city had confirmed the booking. At
the hearing of this application, I asked Mr Kirk -Cohen whether it was
competent for the city to withdraw the booking, particularly considering the
principle expressed in Oudekraal Estates (Pty) Ltd v City of Cape Town ,15
(‘Oudekraal’) which holds that an administrative decision such as the
confirmation of the booking in this case remains valid until it is set aside by a
competent court. In response, counsel submitted that the city’s confirmation
and withdrawal of the booking arose from a commercial contractual
transaction and did not constitute administrative action. On that basis, counsel
contended that it was competent for the city to withdraw the booking.
[34] Ms Naidoo, however, submitted that the confirmation of the booking
constituted administrative action and that, having granted the booking, the city
was functus officio and lacked the competence to revoke its decision
unilaterally. Counsel articulated this argument both at the hearing of the main
application and again during the hearing of the application for leave to appeal.
For the record, I agree with Ms Naidoo’s proposition.
[35] This case, in my view, bears a striking resemblance to what transpired in
Oudekraal, discussed hereunder. In that matter, the Court emphasised that
once an administrative decision has been taken, it remains valid and binding
until properly set aside by a competent court. Similarly, in the present matter,
once the city confirmed the respondent’s booking, it became functus officio
and could not revoke its decision unilaterally. It should have approached the
court for a self -review in terms of principle of legality. I will return to the
implications of Oudekraal shortly.
15 2004 (6) SA 222 (SCA) (28 May 2004).
[36] Section 1 of the P romotion of Administrative Justice Act 3 of 2000
defines administrative action to mean a decision of an administrative nature
which adversely affects rights and has a direct, external legal effect .
Significantly, before a decision fall within the definition of administrative
action, it must adversely affect the rights of any person and have a direct,
external legal effect. 16 A decision has direct legal effect when it is a legally
binding determination of someone's rights and possesses the quality of finality.
In South African Police Union v The National Commissioner of South African
Police Services ,17 the Court stated, quoting Currie and Klaaren in The
Promotion of Administrative Justice Act The Bench Book , that the learned
authors explain that, although the concept (external and legal effect) is
borrowed from German law, it will be necessary to find a South African
interpretation of the phrase. The court further noted that the authors submit that
the phrase ‘direct external legal effect’ is intended to capture the idea that, to
qualify as administrative action, decisions must have a real impact on a person’s
rights. The Court noted:
‘Tracking the three components they suggest the following interpretation:
Legal effect
The decision must be a legally binding determination of someone’s rights. In other
words a decision must establish what someone’s rights are or change or withdraw
them.
Direct effect
There must be finality in the decision. If a number of steps are involved in a decision,
then only the last step is reviewable.
External effect
The person affected must be someone other than a person in
government.’18 (emphasis added)
16 Prime African Security (Pty) Ltd and Another v Eskom Holdings SOC Ltd and Others (2025/146673) [2026]
ZAWCHC 15 (23 January 2026) para 97.
17 Greys Marine Hout Bay (Pty) Ltd v Minister of Public Works 2004 (3) AII SA 446 (C) para 19.
18 At para 19.
[37] Simply put, a decision has direct external legal effect when it is a legally
binding determination of someone’s rights, possessed of the quality of
finality. To have an “external” effect it must affect outsiders and should not be a
purely internal matter of departmental administration.
[38] In this matter, the respondents made a booking for the Vygieskraal
Stadium, which the city duly confirmed . The respondent paid the requisite
booking fees and undertook the necessary preparations. In granting permission
to use the Stadium, the city was exercising public power. The subsequent and
sudden withdrawal of the booking, without furnishing reasons, constituted a
decision that adversely affected the respondent and, accordingly, had external
legal effect. The decision bore the quality of finality. The respondent relied
upon the confirmation of the booking and acted upon it by making
preparations, a fact which has not been disputed by the City.
[39] As foreshadowed above, decisions made by organs of State which are not
challenged in the appropriate proceedings, by the right parties seeking the right
remedy, are treated as effective and binding, unless they are set aside by a court
– even if the decisions may be vitiated by some irregularity. 19 As the S CA
observed in Minister of Home Affairs and Another v The Public Protector ,20
‘until a court is appropriately approached and an allegedly unlawful exercise of
public power is adjudicated upon, it has binding effect merely because of its
factual existence’.
[40] It must be stressed that once a subject has relied upon a decision, a
government cannot, barring specific statutory authority, simply ignore what it
has done. Organs of state are not entitled to simply disregard administrative
19 Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) paras [26] -[31]; and Magnificent
Mile Trading 30 (Pty) Ltd v Charmaine Celliers 2020 (4) SA 375 (CC) para 1.
Mile Trading 30 (Pty) Ltd v Charmaine Celliers 2020 (4) SA 375 (CC) para 1.
20 Minister of Home Affairs and Another v The Public Protector 2018 (3) SA 380 SCA para 38.
actions, even if they believe the decisions to be unlawful, unless and until those
decisions are set aside by a competent court. To do otherwise, would be
impermissible self-help, which is contrary to the rule of law. 21 Organs of state,
including the city in this matter, bear a heightened duty to act in accordance
with the law, to comply with procedural requirements, and to respect and
protect rights in the exercise of public power.
[41] I now return to the Oudekraal case which Ms Naidoo raised at the
hearing of the main application and during the hearing of th is application (leave
to appeal). As previously mentioned, I find this case to be a replication of the
Oudekraal case.22 In summary, in Oudekraal, t he owner of undeveloped land
sought the court to grant declaratory orders confirming his rights to develop the
land he bought in 1965 .23 Some decades previously, the Provincial
Administrator had approved the establishment of a Township on the land.
Thereafter, various administrative steps had been taken by the previous owner to
ready the land for development, including obtaining approval of the general
plan by the Surveyor-General and registering its incorporation at the Register of
Deeds. However, when the new owner applied to the City Council for approval
of an engineering services plan for the proposed development, the city refused
to consider the application.
[42] Defending its refusal in court, the city argued that the Administrator’s
approval of a Township development on the land was unlawful , because the
Administrator had failed to consider the existence of Muslim graves and
Kramats on the land, which would be desecrated in the development.24 The SCA
21 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute 2014
(3) SA 481 (CC) paras 89 and 103.
22 See also Quinit G; Bleazard AA and Budlender S J Administrative Justice in South Africa – An Introduction
(2024) at 304.
23 At paras 3 and 7.
24 At para 12.
accepted that the Administrator's decision was unlawful, as the Administrator
had failed to consider material information namely , the cultural and religious
significance of Muslims burial rights.25
[43] However, the SCA held that notwithstanding the unlawfulness of the
Administrator's decision, the city was not entitled to disregard the decision and
not to comply with its public function merely because it believed that the
Administrator’s decision was unlawful. 26 The Court noted that until the
Administrator’s approval (and thus also the consequences of the approval) is set
aside by a court in proceedings for judicial review it exists in fact and it has
legal consequences that cannot simply be overlooked. 27 The Court stressed that
the proper functioning of a modern state would be considerably compromised if
all administrative acts could be given effect to or ignored depending upon the
view the subject takes of the validity of the act in question.
[44] From the above discussion, it is abundantly clear that the city was
duty-bound to bring a self -review application to set aside the confirmed
booking if it considered that decision unlawful. To do otherwise amounts to
impermissible self -help, which is contrary to the rule of law. In addition, the
city could have instituted a counterapplication as a collateral challenge to the
respondent’s case, but it failed to do so. In the absence of any judicial order
setting aside the booking confirmation, that decision, in my view, stands and
retains its binding effect. I now turn to consider the last two grounds.
Failure to apply the Plascon Evans Rule
25 At para 26.
26 At para 26.
27 At para 26.
[45] The city argues that this Court erred in granting a final relief on motion
proceedings without correctly applying the Plascon Evans Rule. The city
believes that there were several material disputes of fact in the matter, none of
which this court resolved by finding the city's version to be far -fetched or
untenable; instead, according to the city, the Court accepted the respondent’s
version on the disputed facts. The Plascon-Evans rule is well settled in our law
and does not need any elaboration in this judgment. Without regurgitating the
issues traversed in the main application, it suffices to note that this Court dealt
with the factual disputes in paragraphs 27, 28 and 29 of the main judgment.
The Court found that the respondent’s version was uncontroverted. Put simply,
there was nothing to counter the respondent’s account. In consequence, the
city’s version was rejected as unsupported .
[46] I emphasise again that the fact that Max September, the driver of the
respondent, hand -delivered the correspondences mentioned above at the city’s
offices has to date not been disputed . The respondent filed an affidavit from Mr
September in its replying affidavit, who stated that he personally delivered the
three letters to the City of Cape Town offices at 1[...] H[....] Boulevard, Cape
Town. Mr September further stated that upon arrival at the city’s premises, he
was directed by security to deliver the letters to the 10 th floor. He made his way
to the 10th floor and handed the letters to the person seated at the front desk. Mr
September stated that he delivered these letters by hand on 31 October 2025, 11
November 2025, and 21 November 2025 to the person at the front desk.
[47] In the main judgment, this Court held that no affidavit was filed on
behalf of the city by the front desk staff on duty on the date s in question to
dispute the receipt of the respondent’s letters. The applicant’s version in this
regard was therefore uncontroverted. The fact that the Court did not employ
regard was therefore uncontroverted. The fact that the Court did not employ
the phrase “far -fetched and untenable” in rejecting the city’s version does not
detract from the reality that the city’s version was indeed rejected as it did not
counter the respondent’s version . Importantly, when the respondent’s version
is weighed against the version advanced by the city, the disputes raised were
not of such a nature that this Court could not determine them on the papers.
[48] As correctly pointed out by Ms Naidoo, throughout the course of the
proceedings, the city relied on the SASREA argument, contending that
Vygieskraal Stadium was SASREA non -compliant and that the booking was
withdrawn merely because of this. However, at no point in the answering
affidavit nor during the oral argument, despite being directly asked by this
Court, did the city or its counsel explain when it became aware that Vygieskraal
Stadium was non -compliant with SASREA. It was also never stated in the
answering affidavit nor in argument that the booking confirmation was a
mistake. The city now seeks to shift the goalposts in its head of argument on the
application for leave to appeal by contending that the booking confirmation was
made erroneously. This attempt is impermissible. The city cannot make its case
in an application for leave to appeal; that ship has already sailed.
Erroneous factual finding relating to SASREA compliance
[49] The city contends that Vygieskraal Stadium had been graded and certified
only for low-risk events under SASREA, whereas t he minstrel competition
event by reason of their size, nature and anticipated attendance fell within the
medium risk category. The city argued that the minstrel events could not
lawfully be hosted at Vygieskraal stadium, and that the booking confirmation
had been issued in error before the relevant risk grading had been verified.
[50] As stated above, the city relied on the SASREA argument in its
answering affidavit. The version that the booking was issued in error has never
been articulated in the whole answering affidavit of the city, nor was it raised
when the matter was argued. It has never been the version of the city that the
booking was made erroneously. The city was given ample opportunity to
explain to the court how the booking came to be confirmed if the venue was not
compliant with SASREA. No explanation was advanced, and the answering
affidavit does not address this issue either. The error version is only raised now
on the application for leave to appeal following the reasons of judgement the
court issued. The judgment and order that the city seeks to appeal against were
based on the versions that were placed before the Court when the matter was
heard and not on the version that is subsequently raised after the judgment was
issued. It is impermissible, in my view, for the city to articulate a new version in
support of its application for leave to appeal.
[51] In any event, I accept that SASREA plays a role in the risk grading of
venues and compliance for sporting and other events. However, the obligation
to ensure that venues are SASREA compliant falls strictly on the shoulders of
the city. The only entity with knowledge of which venues are SASREA
compliant was the city. In my view, when the city confirmed the booking, it
knew or should have known of Vygieskraal’s compliance with SASREA. The
confirmation of the booking was made with that knowledge. Moreover, th e
relief sought by the respondent was for a suitable venue, not specifically
Vygieskraal. The Court directed the parties to engage on that point and ordered
the city to facilitate the events permit and application thereof.
[52] The last two grounds of appeal are intertwined, and I will deal with them
jointly. The city argues that the court erred in finding that the city, in its capacity
jointly. The city argues that the court erred in finding that the city, in its capacity
as an organ of State and the custodian of venues within its jurisdiction, bore a
constitutional obligation to provide the respondent with an alternative venue
once it had cancelled the Vygieskraal booking. The city, among others, relied on
Government of the Republic of South Africa and Others v Grootboom ,28 and
contended that positive constitutional obligations are not absolute and do not
impose on the State a duty to take specific action regardless of available
resources, operational constraints o r competing demands. Such obligations are
progressively reali sable, must be addressed through reasonable measures, and
are always subject to the State’s available resources.
[53] I agree with the se established legal principles. However, as articulated
in the main judgment, this matter stands on a different footing. The city
confirmed the respondent ’s booking and withdrew it only after the respondent
had paid the booking fee and incurred costs pursuant to that confirmation. The
withdrawal was effected without reasons, and the respondents were afforded
neither an opportunity to appeal nor to challenge the decision. Nor did the city
engage with the respondent, despite its undertaking to do so. All engagements
and correspondence exchanged were initiated by the respondent, who pleaded
with the city to restore the booking. The city, as an organ of state, bore a
heightened duty , in my view, to act consistently with constitutional prescripts,
particularly when exercising public power.
[54] In conclusion, this matter is moot. Furthermore, the decision by the city
to grant the booking was an administrative decision. I accept that the
respondent still had to apply for a permit after the booking confirmation,
which is a different process to the confirmation of the booking . However, after
granting that booking, the city became functus officio . It was impermissible for
the city to withdraw that decision on its own without the intervention of the
court. Having considered the grounds of appeal against the backdrop of the
28 2001 (1) SA 46 (CC).
written reasons, and having weighed the submissions of both counsels, I am not
persuaded that the appeal would have a reasonable prospect of success, nor that
there exists any compelling reason why an appeal in this matter should be heard.
[55] In the circumstances, granting the city leave to appeal to the SCA or to
the Full Court of this division will, in my opinion, be a waste of judicial
resources. On a conspectus of all the facts placed before this Court, there are no
reasonable prospects of success in granting leave to appeal.
Order
[56] In the result, the following order is granted:
56.1 The applicant’s (the city) application for leave to appeal is hereby
dismissed.
56. 2 The applicant is ordered to pay the costs of this application on a party
and party scale including the costs of two counsels where so employed on scale
B.
_____________________________
LEKHULENI J
JUDGE OF THE HIGH
COURT
APPEARANCES
For the Applicant: Adv Naidoo
Adv Adriaanse
Instructed by: Roelf Jumat Attorneys Inc
For the Respondent: Adv Kirk-Cohen SC
Adv Wynne
Instructed by: Timothy and Timothy Attorneys