IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No: 7648/12

THE RESIDENTS' ASSOCIATION 

and

THE PREMIER OF THE GOVERNMENT 

THE MINISTER OF TRANSPORT AND 
PUBLIC WORKS: PROVINCIAL GOVERNMENT 

THE MINISTER OF WATER AND 

JUDGMENT

[2] The construction is being undertaken by the first respondent herein, Entilini Concession (Pty) Ltd ('Entilini). who has been operating a toll road over that stretch of road since 2003. The other respondents are the Premier ol" the Western Cape (second respondent) and the Minister of Transport and Public Works in the Provincial Government of the Western Cape (third respondent) respectively. I shall refer to the second and third respondents collectively as 'the Province'. The fourth respondent is South African National Parks ('SANParks') and the fifth respondent is the national Minister of Water and Environments] Affairs ('die Minister'). Only the Province opposes the present application, the other respondents abiding the court's decision.

Factual background and chronology

[16] The first application was launched by the applicants on 5 March 2012 under Case No 4243/12. It was dismissed by Allie J on 9 March 2012 for lack of urgency. The present application, in substantially the same form as the first application, was thereupon launched on 19 April 2012, followed by the main action on 25 May 2012 under Case No 10326/12.

Discussion
[17] The present application has generated much interest among members of the public and the media, mainly because part of the works in question encroaches onto the farm, which farm is situated within the Table Mountain National Park and forms pan of the Cape Floral Region Protected Areas World Heritage Site.

[19] This is unfortunately not how some of the media have presented the issues or how some of the supporters of the applicants appear to perceive [he nature of the relief sought. As is evident from the relief claimed in the main action, that action similarly does not seek the total prohibition of construction of the control building; it merely seeks to suspend or delay its construction until certain further approvals have been obtained, or further 'hoops have been jumped through', as it was put. As such, the applicants' campaign is aimed at delaying, not preventing, construction of the control building.

[20]    I now turn to consider the relief claimed by the applicants.

Applicants' case
[21] The case made out by the applicants in me founding affidavit is based on the assertion that, for various reasons advanced by them, the construction of the proposed control building within the TMNP and in a World Heritage Site is unlawful. In support of this assertion, the applicants in the main action claim, first, a trio of declaratory orders to the effect that -

(i) activities 11 and 24 of Appendix 1 to listing Notice 1 (published in terms of s 24(2) and 2411 of NEMA hi GNR.544 of 1 & June 2010); and

Irreparable harm

'Unless we make the effort to retain our natural heritage in its original state, we will bequeath to future generations what was once wilderness, now interspersed commercial enterprise.'

[30] In summary, I have not been persuaded that the applicants, or anybody else, will suffer any harm - tar less irreparable harm - if the control building were to be constructed.

[32] The main factors that weigh with me in [bis regard are, first, the financial cost to the Province to date, as well as the financial consequences of a delay if an interdict were to be granted; and, secondly, the inadequacy and undesirabilily of the existing temporary tolling facilities.

Court's discretion

•	Having regard lo the weakness of the applicants' case in the main action, contracted with the strong likelihood of significant prejudice lo the respondents, this is not a case where an interim interdict ought to be granted. As stated above, the Province stands to suffer subsiantlal damage if the imerim interdict were granted, compared with the applicants, who will suffer no comparable harm if the construction process were to continue.
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Costs
[39] Turning finally to the question of costs, s32(2) of NFMA provides as follows:

[42]    For the reasons set out above, it is ordered as follows:

(b) No order is made as to costs.

B M GRIESEL 
Judge of  the High Court