Sea Point Pavilion developer On Track has petitioned the Supreme Court of Appeal for leave to appeal against a Western Cape High Court ruling that halted the proposed development of the promenade and criticised the manner in which the provincial government approved the development.
The R60 million proposed development comprised a multi-storey shopping centre and boutique hotel.
Because the area would have to be rezoned to allow for this, many more developments could have followed.
The plan was opposed by an organisation called Seafront for All (Seafa), whose case was that it could have blocked visitors from the seafront.
The group approached the high court for relief, arguing that the space should remain accessible.
In March judges Siraj Desai and Burton Fourie set aside a record of decision granted by former planning and environment MEC Tasneem Essop that gave the development the nod.
On Track approached the high court last month for leave to appeal, but the application was refused.
Now the developers have petitioned the president of the Supreme Court of Appeal.
They filed a bulky document on Thursday, which included a 72-page affidavit by On Track director and shareholder Serena Rosslind.
Rosslind said the judges had made fundamental errors in fact and law that were of a “gross and stark nature”.
She alleged that they had selected only evidence favourable to Seafa and ignored or misconstrued that presented on behalf of On Track.
She also alleged that the court had considered contents of a newspaper article without obtaining an affidavit from the author, as well as internet articles and a paper “that had nothing to do with the subject of the review”.
Rosslind said the court had ended up placing the onus on Essop to such an extent that every decision taken by an administrator on South Africa would be regarded as reviewable. “We humbly submit that (Essop) took into account all the relevant factors she was entitled to consider. She cannot be faulted for not taking into account information which was not placed before her and if placed before her, would not have had a bearing on her decision,” Rosslind said.
She said the prospects of success on appeal were good and that another court might come to a different conclusion.
Seafa project manager Janey Ball said she had no doubt the group would oppose the application.