Green Point Residents and Ratepayers Association and Others v Gartner and Others

The first, second and third respondents purchased erf 1901, Green Point, in 2020 and obtained approval for building plans in 2021. Neighbouring residents raised objections and, in 2022, obtained an interim interdict (Gamble J order) halting construction pending a review of the 2021 plans. Subsequently, in 2023, the respondents submitted new building plans addressing the alleged defects. The fourth respondent (City of Cape Town) approved the new plans in November 2023, after considering the applicants' objections. The respondents recommenced building in February 2024. The applicants urgently sought an interdict pending review of the 2023 approval, contending that the 2022 Gamble J order prohibited any building on the property pending finalisation of the first review.

• Whether the applicants had established a prima facie right to an interim interdict pending review of the approval of building plans.
• Whether the 2022 Gamble J order prohibited building work based on new, subsequently approved plans (scope of existing interdict).
• Whether the application was urgent, or the urgency was self-created.
• Whether an affidavit (Mr Lerm) and a further City affidavit should be struck out.
• Interpretation of the test for interim interdicts in the context of pending review proceedings post-Outa.

The application for an interim interdict was dismissed. The striking-out application was dismissed. The City's Rule 6(5)(e) application was granted. The applicants were ordered to pay the costs, including those occasioned by employment of two counsel for the respondents and the City. Each party to pay its own costs in respect of the striking out and Rule 6(5)(e) applications.

Following National Treasury v Opposition to Urban Tolling Alliance (2012 (6) SA 223 (CC)), an applicant for an interim interdict pending review of an administrative decision must establish a prima facie right (other than the right to review) that is threatened by impending or imminent irreparable harm. Demonstrating prospects of success on review is necessary but not sufficient to establish the required prima facie right; the harm must be to a substantive right, not merely the right to challenge the decision.

The court observed that interpreting the 2022 Gamble J order as prohibiting any building work based on future, lawful plans would amount to an impermissible interference with the City's future exercise of statutory power, violating the constitutional separation of powers. The court also noted that the availability of regularisation or a demolition order post-review means any interim prejudice is not irreparable.

The judgment reinforces the Constitutional Court's decision in National Treasury v Opposition to Urban Tolling Alliance (Outa), confirming that a mere right to review is insufficient to establish a prima facie right for an interim interdict. It clarifies that to halt construction pending review, an applicant must demonstrate a substantive right (other than the right to review) threatened by imminent, irreparable harm. It also affirms the principle that an interdict cannot be used to prospectively paralyse future administrative decisions, as this would violate the separation of powers.