When certainty and legality collide: The efficacy of interdictory relief for the cessation of building works pending review proceedings
Abstract
Effective legal redress against unlawful building works or construction activities can
be an elusive target. Given the desirability of legal certainty attached to
administrative decisions in terms of which building plans are approved, should the
practical implications of this principle trump the equally important principle of
legality? This article examines the – at times – competing imperatives of certainty
and legality in the context of several recent decisions of the Western Cape High
Court that related to applications for interdictory relief for the cessation of allegedly
unlawful building works. The practical difficulties for an applicant in these
circumstances are particularly acute when the relief is sought pending the final
determination of an application for judicial review of the impugned administrative
decision to grant building plan approval. The article highlights the approach of the
Western Cape High Court in three cases to invoking considerations of legality in
circumstances where building works had reached an advanced stage and the
respondent had effectively achieved what has been described as an "impregnable
position". The principal difficulty for an applicant lies in the fact that where
interdictory relief is sought against building works that have reached an advanced
stage, this potentially renders an eventual successful review application brutum
fulmen.