South Africa: Western Cape High Court, Cape Town

‘(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.'

[14]      The test, which was applied previously in applications of this nature, was whether there were reasonable prospects that another court may come to a different conclusion. With the enactment of section 17 of the Superior Courts Act, the threshold for granting leave to appeal a judgment of the High Court has been significantly raised. The use of the word ‘would’ in subsection 17(1)(i)(a) of the Superior Courts Act imposes a more stringent threshold in terms of the Act, compared to the provisions of the repealed Supreme Court Act 59 of 1959. (S v Notshokovu [2016] ZASCA 112 at para 2). In Mount Chevaux Trust [IT 2012/28 v Tina Goosen and 18 Others 2014 JDR 2325 (LCC), at para 6, Bertelsmann J stated as follows:

“It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court may come to a different conclusion, See Van Heerden v Cronwright and Others 1985 (2) SA 342 (T) at 343H. The use of the word ‘would’ in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against”.

[15]      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 losing party. (See Valley of the Kings Thaba Motswere (Pty) Ltd and Another v Al Maya International [2016] 137 (ZAECGHC) 137 (10 November 2016) at para 4).

5. Discussion

[16]      This Court cogently explained in its judgment the test applicable in interim interdicts preventing construction pending the determination of a judicial review of the administrative decisions that authorise building work. Crucially, the court was bound by OUTA, in which the Constitutional Court held that on the prima facie right leg of the Setlogelo v Setlogelo 1914 AD 121 test for interdictory relief, an applicant cannot merely rely on a right of review because review rights do not require preservation pendente lite. To succeed with interim interdictory relief, some right other than a right to review must be threatened with irreparable harm.

[17]      The applicants take issue with the Court's finding that the test for temporary interdicts pending review has changed since OUTA. The applicants rely on cases decided before OUTA and argue that in OUTA, the Constitutional Court did not establish a new test or law. The applicants also cite two cases which were decided after OUTA and contend that the requirements for interim interdict pending the review of an administrative decision have remained unchanged.

[18]      In my view, there are conflicting decisions dealing with the test of a prima facie right in interdict applications for the cessation of building works pending a review application. For instance, in Tavakoli and Others v Phase III Development Company (Pty) Ltd and Another (22026/2015) [2015] ZAWCHC 188 (11 December 2015), the applicants sought an interim interdict on an urgent basis pending the determination of an application to review and set aside the approval of building plans. In that case, both parties accepted that the applicants’ prima facie right was based on the proposed review, even though the approval of the plans would still stand until set aside.

[19]      Rogers J, as he then was, relied on Searle v Mosselbay Municipality and Others 2009 ZAWCHC 9 at para 6-7; Camps Bay Residents and Ratepayers Association and Others v Augoustides and Others 2009 (6) 190 (WCC) para 10, that the prospects of success in the review proceedings represented the measure of the strength or otherwise of the alleged right that the applicants must prima facie establish to obtain an interdict. However, the court did not consider whether that approach is correct.

[20]      On the other hand, the Gauteng High Court did not consider the test mentioned in OUTA in Sandton Crowne Properties (Pty) Ltd v Municipal Manager City of Ekurhuleni Metropolitan Municipality Others [2024] ZAGPJHC 733 (30 July 2024) para 9. An interdict was requested in this case while the Municipality's decision regarding the approval of site development or building plans was being reviewed. The court noted that the requirements of an interdict are well-established. On the requirement of a prima facie right, the court observed that the interdict must protect a prima facie right worthy of protection. Even if the existence of the right is open to some doubts, noted the court, it would be sufficient for an interdict.

[21]      As previously stated, in dismissing the applicants' application in the present matter, this Court considered itself bound by OUTA and Khoin and Others v Jenkins and Others, in determining an application for a construction interdict pending review. In Khoin and Others v Jenkins and Others, the full court found that protecting the right to review the unlawful decision cannot form the basis for interim relief. Simply put, there could be no consideration of irreparable harm without a prima facie right to be protected from future irreparable harm. This Court also considered itself bound by Joostenbergvlakte Community Forum v Montana Development Company (Pty) Ltd, Case Number: 12205/2023 ZAWCHC (28 December 2023), where the court found that the right to review an allegedly unlawful decision cannot form the basis for interim interdictory relief pending a review.

[22]      From the cases discussed above, it is abundantly clear that there is a conflict of decisions on the test applicable in an application for an interdict pending a review application particularly for building plans. Whilst I am not persuaded of any prospects of success in the applicants' application for leave to appeal, I am of the view that there are compelling reasons to grant leave to appeal as the issues raised in the appeal raise issues of public importance. More so, section 17(1)(a)(ii) of the Superior Courts Act is not limited to conflicting judgments. In Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2, the SCA stated:

“If the court is unpersuaded of the prospects of success, it must still enquire into whether there is a compelling reason to entertain the appeal. A compelling reason includes an important question of law or a discreet issue of public importance that will have an effect on future disputes. But here too, the merits remain vitally important and are often decisive”.

[23]      Notwithstanding this Court's finding and the full court's decision in Khoin and Others v Jenkins and Others, the applicants and other objectors continue to rely on the historic position in construction interim interdict litigation. The circumstances in which a party is entitled to a building construction interdict pending the review of the municipality's building plan is a discrete issue of public importance that will influence future disputes. Pursuant to the discussion above, I am of the view that an appeal in this matter demands the attention of the Supreme Court of Appeal in terms of section 17(1)(a)(ii) of the Superior Courts Act. Section 17(1)(a) of the Superior Courts Act permits leave to appeal where: (i) the appeal would have reasonable prospects of success; or (ii) 'there is some other compelling reason why an appeal should be heard, including conflicting judgments.  

[24]      In my view, the appeal in this matter involves a question of law of public importance because of its general impact on future cases. An authoritative judgment from the SCA will be in the interests of (a) owners seeking to exercise their fundamental property right to build under municipal approval, (b) objectors who may be contemplating an interim interdict application, and (c) the City and other municipalities who face the risk of interference with their constitutionally assigned powers.

[25]      After careful consideration of the applicants’ stated grounds of appeal and the submissions by the various Counsels, I am of the view that leave to appeal should be granted in terms of the provisions of section 17(1)(a)(ii) of the Superior Courts Act. Furthermore, pursuant to the reasons given above, I am of the view that this matter deserves the attention of the Supreme Court of Appeal.

6. Order

[26]      In the result, the following order is granted:

26.1    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.

LEKHULENI J

JUDGE OF THE HIGH COURT

WESTERN CAPE HIGH COURT