Racing Park development Owners Association v Cape Killarney Property Investments (Pty) Ltd

High court considered the nature of the relief sought which was a mandatory interdict involving a remedy where positive conduct on the part of an alleged wrongdoer is required to terminate continuing wrongfulness but unless resultant prejudice, actual or potential, can be shown by the claimant, there is no viable basis to prosecute it.

Essence

Mandatory interdict considered and proposed amended particulars of claim do not contain any allegation of resultant harm supporting interdictory relief.

Decision

(8175/2020) [2021] ZAWCHC 45 (15 March 2021)

Order:

Refused application to amend pleadings.

Judges

AG Binns-Ward J.

Hearing: 11 March 2021
Judgment: 15 March 2021

Reasons

“[13] Mr Melunsky’s argument was well made in my judgment. Indeed, the reasoning in Giant Concerts that he sought to apply was made in the context of an observation by the Court in that case that ‘constitutional own-interest standing is broader than the traditional common law standing, but that a litigant must nevertheless show that his or her rights or interests are directly affected by the challenged law or conduct’. Standing in the current case, which is own-interest litigation in a private law context, would, on the basis of the aforementioned observation, fall to be assessed less generously than it would be in constitutional own-interest litigation.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

 

Court summary