Municipal Employees Pension Fund v City of Johannesburg Metropolitan Municipality and Others (CCT 274/23) [2025] ZACC 23 (21 October 2025)

Case Note

Municipal Employees Pension Fund v City of Johannesburg Metropolitan Municipality and Others
[2025] ZACC 23 (21 October 2025)

Reportability

This judgment is reportable because it clarifies the South African law of locus standi in administrative-law review proceedings where ownership of immovable property changes hands after litigation has commenced. It resolves the apparent tension between common-law restrictions on the retrospective creation of standing and the broader, constitutionally-informed approach mandated by section 38 of the Constitution. By recognising that a successor in title may acquire standing to pursue a pending PAJA review once it becomes the owner and is formally substituted, the Court fills an important gap in land-use, planning and municipal-law litigation and provides guidance of general public importance to conveyancers, municipalities, litigants and courts alike.

Cases Cited

Giant Concerts CC v Rinaldo Investments (Pty) Ltd [2012] ZACC 28; 2013 (3) BCLR 251 (CC)
AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security Agency [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC)
Ferreira v Levin NO; Vryenhoek v Powell NO [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC)
Tulip Diamonds FZE v Minister of Justice and Constitutional Development [2013] ZACC 19; 2013 (2) SACR 443 (CC); 2013 (10) BCLR 1180 (CC)
Waikiwi Shipping Co Ltd v Thomas Barlow and Sons (Natal) Ltd 1978 (1) SA 671 (A)
Government of the Republic of South Africa v Ngubane 1972 (2) SA 601 (A)
Brummer v Gorfil Brothers Investments (Pty) Ltd [1999] ZASCA 6; 1999 (3) SA 389 (SCA)
Richardson v South Peninsula Municipality 2001 (3) BCLR 265 (C)
Illovo Opportunities Partnership 61 v Illovo Junction Properties (Pty) Ltd [2014] ZASCA 119
Vandenhende v Minister of Agriculture, Planning and Tourism, Western Cape 2000 (4) SA 681 (C)
Tavakoli v Bantry Hills (Pty) Ltd [2018] ZASCA 159; 2019 (3) SA 163 (SCA)
Swanepoel NO v Profmed Medical Scheme [2024] ZACC 23; 2025 (1) SA 33 (CC); 2025 (2) BCLR 205 (CC)
Mkhize NO v Premier of the Province of KwaZulu-Natal [2018] ZACC 50; 2019 (3) BCLR 360 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 – sections 33, 38, 167
Spatial Planning and Land Use Management Act 16 of 2013
City of Johannesburg Municipal Planning By-law, 2016
Promotion of Administrative Justice Act 3 of 2000 (PAJA)

Rules of Court Cited

Uniform Rules of Court, rule 53
Rules of the Constitutional Court, rule 19

HEADNOTE

Summary

The applicant, Municipal Employees Pension Fund (MEPF), purchased the Nicolway Shopping Centre from Erf 8[…] B[…] (Pty) Ltd after that company had already launched High Court review proceedings to set aside the City of Johannesburg’s approval of an adjoining owner’s rezoning application. After transfer, MEPF obtained an unopposed order substituting itself for the seller. When the review came up for argument the respondents objected that MEPF lacked locus standi because it was not the owner when the impugned decision was taken. The High Court agreed and dismissed the review on that preliminary point.

On appeal, the Constitutional Court holds unanimously that ownership conveyed after litis contestatio confers a direct, substantial and financial interest in the review outcome; that an order of substitution is not a nullity; and that under the Constitution the requirement of standing must be interpreted broadly. MEPF therefore has standing, the preliminary dismissal is reversed and the matter is remitted for determination on the merits.

Key Issues

Whether a purchaser of immovable property can step into pending PAJA review proceedings commenced by the seller.
Whether standing must exist at the moment the administrative act was taken, or merely when the applicant seeks to litigate.
The legal effect of a substitution order granted after litis contestatio.
Interaction between common-law principles of cession/novation and constitutional principles of standing in public-law litigation.

Held

1. Leave to appeal granted: the matter raises constitutional issues and arguable points of law of general public importance.
2. Standing confirmed: A successor in title obtains own-interest standing to pursue review relief aimed at protecting the property now owned, even though it was not the owner when the administrative decision was made.
3. Substitution order valid: Such an order does not “create” standing but recognises and perfects the successor’s already-acquired interest; it is not open to collateral challenge on the merits.
4. High Court order set aside and replaced with a declaration that MEPF has standing; costs awarded against the respondents.
5. Review remitted to the High Court for determination of the substantive grounds.

THE FACTS

The dispute originates in 2021 when Erf 8[…] B[…] (Pty) Ltd, owner of the Nicolway Shopping Centre in Bryanston, instituted review proceedings to set aside the City of Johannesburg’s approval of Nordic Light Properties (Pty) Ltd’s rezoning of adjoining land. Erf 8[…] alleged defective notice, breach of the audi principle and that the rezoning application had lapsed by operation of law before approval.

On 26 August 2021 MEPF concluded a R1,148 billion sale agreement for the shopping-centre enterprise, with transfer effected on 15 December 2021. The sale contract and an addendum expressly provided that the purchaser would be substituted as applicant in the pending High Court review, and that all rights in the result of the litigation would pass to it upon such substitution.

MEPF duly applied for, and on 17 May 2022 obtained, an unopposed order substituting it for Erf 8[…]. When heads of argument were exchanged, Nordic for the first time contended that the pension fund lacked locus standi because it had not been the owner or an affected rate-payer when the rezoning was approved. The High Court, treating standing as a separated issue, upheld that objection and dismissed the review with costs. Subsequent leave-to-appeal applications to the High Court and the Supreme Court of Appeal failed, prompting the present Constitutional Court proceedings.

THE ISSUES

The Court had to decide, first, whether constitutional and general jurisdiction were engaged by the standing question. Secondly, it had to determine if MEPF, as successor in title, possessed sufficient own-interest standing under section 38 of the Constitution and the principles in Giant Concerts. Thirdly, it had to assess the legal impact of a substitution order made after litis contestatio and whether such an order renders the standing issue res judicata.

ANALYSIS

The Court, per Seegobin AJ, begins by contextualising the dispute within constitutional standing jurisprudence. It revisits Giant Concerts to emphasise that own-interest standing is broader than the common-law formula of a “sufficient, personal and direct interest”. Section 38 demands a generous, purposive approach that protects legitimate interests in just administrative action.

Turning to the common-law authorities relied on by the High Court, particularly Waikiwi and Ngubane, the Court distinguishes them as dealing with cession of private, patrimonial rights, not with the public-law remedy of review. In administrative-law proceedings the focus is on the lawfulness of public power, an objective enquiry that potentially benefits all. Consequently the rigidity of common-law rules regarding the retroactive creation of standing gives way to constitutional principles.

The Court finds persuasive guidance in its recent decisions in Mkhize and Swanepoel. Those cases confirm that a review claim may be “transmitted” to a successor where that party has an independent legal and financial interest in the outcome. Ownership of the shopping centre gives MEPF exactly such an interest: traffic, access, tenant relations and the economic viability of the centre will be affected by Nordic’s development. Hence standing is present, and indeed was present when the substitution order was granted. The order cannot be ignored or treated as a nullity; it formalises the procedural position of an entity that already had constitutionally-sufficient interest.

REMEDY

In exercise of its remedial discretion under section 172(1)(b) of the Constitution, the Court grants leave to appeal, upholds the appeal, and substitutes the High Court’s order with a declaration affirming MEPF’s standing. It remits the matter to the High Court for adjudication of the substantive review grounds and awards costs in all courts, including two counsel, against the City and Nordic jointly and severally.

LEGAL PRINCIPLES

A successor in title to immovable property acquires own-interest standing to continue PAJA review proceedings aimed at impugned land-use decisions that affect the property, even if it was not yet owner when the administrative act occurred.

A substitution order granted after litis contestatio is procedurally sound and gives effect to the successor’s pre-existing constitutional interest; it is not open to attack on the ground that it “creates” standing retrospectively.

Common-law constraints on the transfer or cession of personal rights do not restrict the transmissibility of the public-law remedy of review. In determining standing for such reviews, courts must adopt the broad, generous approach mandated by section 38 of the Constitution.

Administrative-law proceedings primarily concern the lawfulness of public power; once a direct, substantial and adverse impact on the applicant’s interests is shown, standing is established regardless of when ownership or other rights were acquired.

The decision reaffirms that constitutional values trump formalistic barriers to access to court where a genuine, practical interest in vindicating the rule of law is demonstrated.