Green Point Residents' and Ratepayers Association and Others v Gartner and Others (4859/2024) [2024] ZAWCHC 252 (10 September 2024)

Green Point Residents' and Ratepayers Association and Others v Gartner and Others (4859/2024) [2024] ZAWCHC 252 (10 September 2024)

The court found that, although it was not persuaded of prospects of success in the applicants' case, there are compelling reasons to grant leave to appeal due to conflicting judgments on the test for interim interdicts pending review of building plan approvals. The issue is of public importance, affecting property...

Source-derived case information.

Citation
[2024] ZAWCHC 252
Parties
Applicant: The Green Point Residents’ and Ratepayers Association; Applicant: The Trustees for the time being of the Rusnic Trust (IT 2867/09); Applicant: Thomas Francis Gallagher; Applicant: Jacqueline Francis Gallagher; Applicant: Andrew Vincent McPherson; Applicant: Cyril Ian Glaser; Applicant: Barbara Ruth Meyers; Respondent: Leonhard Gartner; Respondent: Andreas Robert Hermann Plank; Respondent: Janine Adude Stephanie Plank; Respondent: The City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 September 2024
Case Number
4859/2024
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Dismissal of Interim Interdict Pending Review
Outcome
Leave to appeal granted to the Supreme Court of Appeal against the judgment delivered on 03 June 2024.
Judges
Lekhuleni
Legal Topics
Interim Interdict, Review of Administrative Action, Building Regulations, Municipal Planning, Prima Facie Right, Irreparable Harm
Administrative Law Civil Procedure Land and Property Interim Interdict Review of Administrative Action Building Regulations Municipal Planning Prima Facie Right +1 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

The Green Point Residents’ and Ratepayers Association

Applicant

The Trustees for the time being of the Rusnic Trust (IT 2867/09)

Applicant

Thomas Francis Gallagher

Applicant

Jacqueline Francis Gallagher

Applicant

Andrew Vincent McPherson

Applicant

Cyril Ian Glaser

Applicant

Barbara Ruth Meyers

Applicant

Leonhard Gartner

Respondent

Andreas Robert Hermann Plank

Respondent

Janine Adude Stephanie Plank

Respondent

The City of Cape Town

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Dismissal of Interim Interdict Pending Review

Legal Issues

  1. 1 Whether the applicants established a prima facie right to interim interdictory relief pending review of the municipality's building plan approval.
  2. 2 Whether the test for granting interim interdicts pending review has changed following OUTA and subsequent case law.
  3. 3 Whether conflicting judgments on the applicable test for interim interdicts justify leave to appeal to the Supreme Court of Appeal.

Ratio Decidendi

The court found that, although it was not persuaded of prospects of success in the applicants' case, there are compelling reasons to grant leave to appeal due to conflicting judgments on the test for interim interdicts pending review of building plan approvals. The issue is of public importance, affecting property owners, objectors, and municipalities. The court was bound by OUTA and subsequent full bench decisions, which held that a right to review cannot alone justify interim interdictory relief; a threatened right to irreparable harm must be established. However, the ongoing reliance on historic precedent and the lack of authoritative guidance from the Supreme Court of Appeal...

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal against the judgment delivered on 03 June 2024.

Orders

  • The applicants are granted leave to appeal to the Supreme Court of Appeal against the judgment of this Court delivered on 03 June 2024.
  • The costs of this application will be costs in the appeal.