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[2022] ZAFSHC 12
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Persons whose identities are unknown and who have threatened and are threatening to unlawfully occupy land marked as: The Remainder of Town Lands of Oranjeville 1124 v Metsimaholo Local Municipality (A168/2020) [2022] ZAFSHC 12 (25 January 2022)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
Case No:A168/2020
I
n
the matter between:
PERSONS
WHOSE IDENTITIES ARE
Appellant
UNKNOWN
TO THE APPLICANT AND WHO
HAVE
THREATENED AND ARE THREATENING
TO
UNLAWFULLY OCCUPY LAND MARKED AS:
THE
REMAINDER OF TOWN LANDS OF
ORANJEVILLE
1124
and
METSIMAHOLO
LOCAL MUNICIPALITY
Respondent
CORAM:
MATHEBULA, J
et
DANISO, J
et
VAN RHYN, AJ
HEARD
ON:
25
OCTOBER 2021
DELIVERED
ON:
25
JANUARY 2022
JUDGMENT
BY:
VAN
RHYN, AJ
INTRODUCTION.
[1]
On 20 May 2020, the respondent in this appeal, Metsimaholo Local
Municipality,
launched an urgent
application (as the applicant) under case number 1631/2020 against
unknown persons who have threatened and were
threatening to
unlawfully occupy and enter land described as the “Remainder of
Townlands of Oranjeville 1124”, Heilbron
(“the land”),
Free State Province.
[2]
In the court
a quo
the matter was heard as one of urgency and
the non-compliance with the provisions regarding time periods,
service and forms was
dispensed with in terms of the provisions of
rule 6(12). The following interim order was granted on an
ex
parte
basis on 3 June 2020:
“
2.
A Rule
Nisi
is issued calling upon the Respondents to show
cause, to this Honourable Court on 6 August 2020 at 09h30 as to why
the First Respondents
should not be interdicted and restrained from:
2.1
Entering or being upon land marked as the remainder of Townlands of
Oranjeville 1124 for purposes of
unlawfully occupying or invading the
land:
2.2
Erecting, attempting to erect or completing to erect any structure on
the land;
2.3
Bringing building materials onto the land;
2.4
Intimidating, harassing, assaulting or in any way interfering with
the applicant or any or its employees
when ensuring compliance with
the Order;
2.5
Inciting and encouraging other persons to settle on the land and/or
erect structures on the land for
the purpose of unlawfully occupying
and/or invading the land.
3.
Authorising the applicant, duly assisted by the Sheriff and insofar
as is necessary, the South African
Police Services “(SAPS”)
to give effect to the provisions of this Order by:
3.1 Forthwith removing
any person found to be in breach of this Order;
3.2 Removing and/or
demolishing any vacant and/or unoccupied structure erected on the
land at the time of granting of this Order;
3.3 Removing and/or
demolishing any new structure erected on the land since the granting
of this Order;
3.4 Removing any
possessions or structures including building materials associated
with the unlawful occupation and/or invasion
of the land;
3.5 To take all
reasonable steps in order to give effect to this Order.
4. The
provisions of prayers 2 and 3 shall operate as an interim Order
pending a final Order being made on the return
date of the Rule
Nisi
.
5. Service of the
Order be effected by the Sheriff by,
inter alia
erecting
notice boards with the Order pinned thereto at various places on the
land easily visible to the Respondents.
6. Any interested
party wishing to anticipate the return day be granted leave to do so
on 24 hours’ notice to the Applicant’s
attorney.
7. The
Respondents to pay the Applicant’s cost, in the event the
Respondents oppose Part A of this application.”
[3]
A notice of opposition was filed by a group of people, represented by
M J Mokoena, and referred
to as the “first respondents”
in the heading of the said notice. This group is the appellant in the
appeal at hand.
The appellant, however, specified in their answering
affidavit, that neither the deponent to the answering affidavit, M.
J. Mokoena,
nor any of the members who he represents are part of
either the first or the second respondent as cited in the
application. The
rule
nisi
was extended to 8 October
2020 when the application was heard by Raikane AJ.
[4]
At the hearing of the opposed application, a point
in limine
disputing the
locus standi
of the appellant to oppose the
application for confirmation of the
rule
nisi
was
argued. The court
a quo
held that the appellant lacked
standing to oppose the confirmation of the rule
nisi
. Due to
the appellant’ failure to apply for leave to intervene the
application was dealt with as if unopposed. The
rule
nisi
was confirmed. This appeal, with leave granted by the court
a
quo
to appeal to the full bench, emanates from the judgment
and order confirming the interim order.
THE RESPONDENT’S
APPLICATION IN THE COURT
A QUO
.
[5]
The respondent, as owner of the land in question, brought an urgent
application
for an interdict and order to restrain unidentified
persons cited as “first respondent” from unlawfully
occupying and/or
invading the land. The application was brought in
two parts, “Part A” and “Part B”. The
proceedings
in the court
a quo
as well as in respect of this
appeal only relates to part A. Part B of the application relates to a
different area referred to as
Sasolburg North; Welgelegen 58
including other properties belonging to the respondent and concerns
unknown persons cited as the
“second respondent”.
At the time of this application in the court
a quo,
the
country was under national lockdown level 4 in terms of
section 3
of
the
Disaster Management Act of 2002
to combat the spread of Covid-19.
[6]
On 25 May 2020 it came to the attention of officials in the
employment
of the respondent that an invasion of the land is in
progress. The land was vacant prior to the invaders starting to erect
structures
on the land. Officials from the respondent, accompanied by
members of SAPS, visited the site on 25 May 2020. The invaders
were led by one Mr Masiya of Metsimaholo Community Association
(“MCA”) and one “Lerato”, a member of the
Economic Freedom Fighters (“EFF”). An inspection of
the land revealed that about ten completed structures and
approximately 20 incomplete structures had already been erected.
[7]
In the area where no structures had been erected, it was marked into
sections
which were allegedly allocated to individuals for building
new structures. The completed structures were locked and no occupants
could be traced at the time of the inspection. The respondent
appended photographs to the founding affidavit of the structures
already erected as well as the area cleared for purposes of building
structures. Poles were planted for the demarcation of stands.
Building materials as well as partially constructed structures can be
seen on the photographs. An RDP housing development scheme
is
situated adjacent to the land being invaded.
[8]
The respondent contended that during June 2020, the construction of
the
majority of the structures had not yet been finalized and were
not occupied. Accordingly, the provisions of the Prevention
of
Illegal Eviction from and Unlawful Occupation of land Act 19 of 1998
(“PIE Act”) are not applicable. The respondent
however feared, given the invaders’ alleged absolute lack of
respect for authority, a mass orchestrated invasion and occupation
of
its’s property with associated inevitable harm will follow if
the unlawful invasion, building of further structures and
occupation
continued unabated. The respondent launched the application as a
pre-emptive and preventative step against the impeding
illegal land
invasion and occupation and in anticipation of a mass invasion. Such
invasions were increasing during the national
lockdown period. Any of
the occupiers of the already constructed structures, were in any
event invited by the respondent to present
themselves to court and
explain their personal circumstances including how and when they came
to occupy the land in question.
[9]
Notwithstanding engagement by the officials of the respondent, the
invaders
and trespassers became annoyed and did not want to
co-operate in any way. Apart from being in direct violation of the
then current
lockdown restrictions the ongoing land invasion was
unacceptable to the respondent, as the area had been earmarked for
future development
of housing.
GROUNDS FOR THE APPEAL
AND APPELLANTS’ ARGUMENTS.
[10]
The appeal is against the finding of the court
a quo
that the
appellant did not have
locus standi
to oppose the application
on the basis that the appellant had neither entered an intention to
oppose nor applied for leave to intervene.
In granting the final
order and authorising the respondent and the SAPS to summarily evict
those who are unlawfully occupying the
land in question and to
demolish their homes, the order, in the appellant’s reading
thereof, adversely affects their constitutional
right not to be
evicted arbitrarily from their homes. The order will allow the
respondent to evict them without having to follow
the exacting
protective requirements in terms of the PIE Act.
[11]
Furthermore, the order adversely affects the appellant’s
constitutional right
to have access to adequate housing and thus has
the potential to affect the appellant’s interest in having a
secure place
to live. Appellant, with reference to seven (7)
identified individuals contend that the land had been occupied by
people since
2017. It is denied that, at the time of the urgent
application, the majority of the homes on the land in question were
only partially
constructed and unoccupied. The appellant denies that
any “impeding invasion” of the respondent’s
property was
imminent or that the appellant or any of the other
occupiers or invaders mobilised any group of people for an
accelerated occupation
or for a “mass unlawful invasion”
of the land. On behalf of the appellant, it is argued that the
problem with
the order is that itself makes no distinction between
those invaders or occupiers who occupied the land prior to the
granting of
the order and those invaders or occupiers who did so
subsequent to the granting of the rule
nisi
.
[12]
The appellant argues that the failure to bring an application for
leave to intervene was not raised
by the respondent at the hearing of
the matter in the court
a
quo
,
but
mero
motu
by
the court. Relying on
Fischer
and Another v Ramahlele and others
[1]
the appellant contend that, on the basis that our system of civil
procedure, litigation is party driven and a court should confine
itself with the issues brought before it by the parties, it was not
open to the court to decide an application on issues, legal
points or
facts that did not emerge from the papers and were not raised by the
parties themselves.
[13]
Furthermore, even had the respondent raised the absence of an
application for leave to intervene in
either the papers or at the
hearing of the application or even if this court conclude that the
court
a quo
did not err in considering this issue
mero
motu,
the appellant contends that the absence of an application
for leave to intervene does not affect the appellant’s
locus
standi
for a number of reasons. These reasons are the following:
13.1 If
the court
a quo’
s finding in this respect is premised on
the assumption that no notice to oppose had been filed necessitating
an application for
leave to intervene, then the fact that a notice of
intention to opposed had been filed, would mean that there was no
need for an
application for leave to intervene.
13.2 If
an application for leave to intervene was the only procedure through
which the appellant could properly
be before court, then the court
a
quo
erred on the law on two grounds;
13.2.1
Firstly, it is settled law that the courts should
be “...hesitant
to dispose of cases on standing alone where broader concerns of
accountability and responsiveness may require
investigation and
determination of the merits.”
[2]
It is equally settled that in cases involving constitutional rights,
such as this one, in general a less restrictive approach to
standing
should be followed.
[3]
13.2.2
Secondly, the choice of procedure with which
to oppose the matter
(either with a notice of intention to oppose or an application for
leave to intervene) is simply irrelevant
to the question of
locus
standi
.
Whether a party has standing to oppose the relief sought, is a
substantive and not a technical question. One has standing
to
oppose an application if one has a substantive interest (a sufficient
interest) in the relief sought in the sense that the relief
sought
affects one’s rights or interests adversely or has the
potential to affect one’s rights or interests.
[4]
RESPONDENT’S
ARGUMENTS.
[14]
In this appeal, the principle of mootness formed the primary
submission by the respondent
in that the order interdicting and
restraining the unlawful occupation of State-owned land was granted
on 3 June 2020, confirmed
on 8 October 2020 and has served its
purpose. Appealing the order is meaningless. The matter has
become moot and merely academic
and the appeal may be dismissed on
this ground alone.
[5]
In
addition, it is not the appellant’s case that its members are
prejudiced by the existence of the court order. The
appellant
failed to identify any of its rights being affected by the court
order and hence the need to appeal the order.
[15]
A further argument on behalf of the respondent concerns the question
regarding the
citation of the appellant in this appeal. The appellant
described themselves as the “Oranjeville Community” or
the
“Oranjeville Development Forum” in the answering
affidavit. In the heading of this appeal, the appellant is
described
as “Persons whose identities are unknown to the
applicant and who have threatened and are threatening to unlawfully
occupy
land marked as: the remainder of Townlands of Oranjeville
1124”. With reference to the concession made by the
appellant
in its answering affidavit in the following terms: “It
is denied that either I, or any members of the Oranjeville Community
or the Oranjeville Development Forum are part either of the first or
the second respondent as cited...”, the respondent argues
that
the court
a quo’s
finding that the appellant lacked the
necessary
locus
standi
cannot be faulted. Yet, in the
appeal the appellant is cited as a party whom they explicitly deny
being part of. The respondent
argues that the finding by the
court
a quo
that the appellant had no direct and substantial
interest in the matter and therefore lacked the necessary
locus
standi
to oppose the interdict sought, is correct and was based
on the uncontested facts placed before court.
[16]
In addition, the appellant had no
locus standi
in the court
a
quo
on the ground that the Oranjeville Development Forum is not a
legal persona and as such cannot sue or be sued. In any event,
ex
lege
, the Oranjeville Development Forum has no authority and
legal standing to represent the people who invaded the land in
question
during May 2020.
APPLICABLE LEGAL
PRINCIPLES AND DISCUSSION.
[17]
The deponent to the appellant’s affidavit stated that he, as
the elected chairperson
of the Oranjeville Development Forum,
represents those members who reside on the land referred to in part A
of the application.
The application was opposed on the basis that
“...all on whose behalf I depose to this affidavit, had at
various times since
2017 moved on to the land that the first
respondents have allegedly threatened or are threatening to occupy.
All of them
are currently living on that land and have their homes
there and have done so for varying periods of time.” It is
therefore
denied that any imminent invasion of the land existed
during May 2020. According to the appellant at least 80 people were
already
living on the land in question on 25 May 2020.
[18]
In the replying affidavit the respondent averred that, on the basis
that the appellant’s
members have been living on the land since
2017 or at least long prior to May 2020, they do not form part of the
trespassers or
group of land invaders who were in the process of
clearing the area and erecting structures, The argument that the
appellant does
not have a direct and substantial legal interest in
the matter and therefore no legal standing was therefore raised in
reply. The
issue regarding the appellant’s legal standing was
also raised in the heads of argument filed by the respondent prior to
the hearing of the matter on the return day.
[19]
The Constitutional Court in
Port
Elizabeth Municipality v Various Occupiers
[6]
held that while the Constitution is strongly supportive of orderly
land reform, it does not purport to effect transfer of title
by
constitutional
fiat
,
nor does it sanction arbitrary seizure of land, whether by the State
or by landless people.
[7]
If an individual is dissatisfied with any aspect of an organ of
State’s conduct or its policy, the appropriate (lawful)
response is to approach the courts. It is not to resort to
self- help. Under the rule of law, a founding principle
of the
Constitution, courts are to make orders which discourage land
invasions and queue jumping. Preferential treatment
obtained
through self- help conduct is contrary to the rule of law and
constitutional democracy and must be rejected.
[20]
The appellant opposed the relief sought in the court
a quo
and
entered opposition through a notice of intention to oppose as the
“first respondent”. However, the first
respondent
in the application is cited as: “persons whose identities are
unknown to the applicant and who have threatened
and are threatening
to unlawfully occupy land marked as: the remainder of town lands of
Oranjeville 1124.” On their
own version they neither
threatened nor were they threatening to unlawfully occupy the land
but were already occupying it, some
for a considerable period of time
prior to May 2020. The appellant argues that the order sought and
granted affected them as it
related to the land on which they live.
They therefore have a direct and substantial interest in the
proceedings and thus possess
the necessary
locus
standi.
LOCUS STANDI TO CLAIM
RELIEF.
[21]
Traditionally the South African courts adopted a restrictive attitude
to the question of whether a
person who approaches the court for
relief has the right to do so. In
Coetzee
v Comitis and others
[8]
Traverso J held that the matter of legal standing, requiring a person
who approaches the court to have an interest in the sense
of being
personally adversely affected by the wrong alleged, have changed
since the inception of the Constitution. Section 38 of
the
Constitution provides:
“
Anyone listed in
this section has the right to approach a competent Court, alleging
that a right in the Bill of Rights has been
infringed or threatened,
and the Court may grant appropriate relief, including a declaration
of rights. The persons who may
approach a Court are:
(1)
anyone acting in their own interest;
(2)
…
(3)
anyone acting as a member of, or in the interest of,
a group or class
of persons;
(4)
anyone acting in the public interest...”
[9]
[22]
Cameron J aligned himself with the approach to standing in
constitutional cases as adopted in
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others
[10]
and held as follows in
Beukes
v Krugersdorp Transitional Local Council and Another
:
[11]
“
This approach
seems to me to be appropriate not only to the Constitutional Court,
but to all Courts that are called upon to adjudicate
constitutional
claims. It seems to me further that a broad approach should be
taken not only to who qualifies as having standing
under s 7(4)(b),
but to how that standing may be evidenced. In the present case,
the founding papers proceed explicitly from
the averment that the
applicant as well as the listed persons live in ‘white areas’
and that they are for this reason
affected unfairly by the TLC’s
discriminatory rates policy. From this it seems to be plain
that the group or class
of persons as a member of whom and in whose
interest the applicant is acting are those ratepayers of Krugersdorp
within the TLC’s
authority who do not enjoy the benefit of
‘flat rate’ municipal charges. It would run counter
to the spirit and
purport of the interim Constitution to require that
persons who identify themselves as members of a group or class as a
member
of whom and in whose interests a litigant act, should
reiterate with formalistic precision the complaint with which they
associate
themselves”.
[12]
[23]
An enquiry into standing is an enquiry into whether the matter which
has been brought before court
is justiciable. Section 38 of the
Constitution contemplates a broad approach to standing whenever
allegations that a right, guaranteed
by Chapter 2 of the
Constitution, has been infringed or is threatened are at stake.
[13]
The requirement of procedural justiciability is based on the
principle that it is not the function of the courts to determine
academic or hypothetical issues. This includes issues of standing,
ripeness and mootness. Ripeness concerns the question whether
the
claim has been brought too early in the sense that the right in issue
has not yet been infringed or threatened. The issue of
whether a
matter is moot arises when the judgment of the court will have no
practical effect. Standing enquiries relate to whether
the person who
has claimed relief has the right and interest to do so or is the
correct person to be before the court.
[24]
The question whether, at the hearing of the appeal, the issues are of
such a nature that the judgment
or order sought will have no
practical effect or result, the appeal may be dismissed on this
ground alone was not addressed by
the appellant in their heads of
argument. In his reply, Mr Brand who appeared on behalf of the
appellant, argued that if the matter
has become moot there was no
reason for the respondent to oppose the appeal.
[25]
The interim order was granted and confirmed to prevent and stop the
imminent land invasion and erecting
of structures during May and June
2020. The order sanctioned the respondent, assisted by the Sheriff
and members of SAPS to
remove any person found in breach of the
order
and
sanctioned the demolition of any vacant and/or
unoccupied structures erected
on the land. (emphasis added) The
order furthermore sanctioned the
removal and/or demolition of any
new structures erected on the land since granting of the order
(emphasis added). No time frame was included within which
period the order will be valid or within which period the removal
of
trespassers or the demolition of structures may be carried out. Even
though the purpose of the urgent application was to stop
the invasion
of the area and bring a halt to the building of structures at the
time during May-June 2020, for as long as the order
stands, any
invaders of the land may be restrained and removed from occupying the
land. In my view, the appeal is therefore not
moot.
[26]
Section 25(1) of the Constitution provides that “no one may be
deprived of property except in
terms of law of general application,
and no law may permit arbitrary deprivation of property” and
consequently the occupation
of another’s property would
constitute an arbitrary depravation of property which is not
permitted in terms of the Constitution.
land invasions are
indisputably unconstitutional. Nevertheless, these invasions should
not be ignored as they are symptomatic of
a severe need for adequate
housing in the close vicinity of economic opportunities.
[27]
Prior to 1994 there were conflicting decisions as to whether an
association could claim relief in the
interest of its members.
Section 38 (e) of the Constitution now clearly provides that an
association may act in the interest
of its members when the
provisions in the Bill of Rights has been infringed.
[14]
Associations have been allowed to litigate on behalf of a group of
persons without having to establish that the members of the
group are
members of the association
[15]
;
in the public interest and in their own interest where the relief
claimed would promote the objects of the association.
[16]
Mr Mokoena deposed to the affidavit on behalf of the members of
the Oranjeville Community Forum in his capacity as the elected
chairperson. The resolution adopted by the Oranjeville Community
Forum establishing his mandate to depose to the affidavit on behalf
of its members is appended to the answering affidavit. A second
resolution signed by a number of members who reside on the “land
in question” is also appended to the answering affidavit. I
am of the view the appellant does have legal standing to
represent
the members of its association.
[28]
The appellant’s contention that even though they are not part
of the invasion or attempted invasion
that occurred during May and
June 2020, the order granted by the court
a
quo
may
negatively impact upon them as it relates to the property on which
they live, is however deserving of further scrutiny. The
appellant
places reliance on the principles enunciated in
Zulu
and Others v eThekwini Municipality and Others
[17]
for their argument that the question whether a party has standing to
oppose relief sought is a substantive and not a technical
question.
The contention is that the relief sought by the respondent affects
the rights of the appellant’s members or their
interests
adversely or has the potential to affect their rights or interests.
The
Zulu
case
concerns an appeal against a high court’s refusal to grant the
appellant (the “occupiers”) leave to intervene
in
proceedings in which they had not been cited and where an interim
order had been granted which allegedly affected their rights
in that
it related to the land that the occupiers had been living on.
[29]
In
Zulu
the municipality contended that the interim order only
related to invasions or attempted invasions that occurred or would
incur
after the grant of that order, with the result that the order
sought and granted did not interfere with the entrenched rights of
the occupants of the property prior to the grant of the order.
It however transpired that subsequent to the hearing of the
matter
the municipality relied on the interim order to demolish some of the
occupiers’ structures. On appeal the Constitutional
Court
held that the question to be determined, i.e., whether the high court
was correct in refusing the occupiers leave to intervene,
depended
upon whether the occupiers had a direct and substantial interest in
the proceedings and therefore had
locus standi
. That, in
turn, depended on whether the order affected their rights or
interests adversely or had the potential to adversely
affect their
rights or interests.
[30]
The Constitutional Court held that the order seemed wide enough to
include the prevention of the continuation
of such occupation and
that the occupiers could be prevented from continuing to occupy the
property and, to that extent, it was
an eviction order. The
high court thus erred in dismissing the application for leave to
intervene and, that being the case,
the appeal succeeded.
[31]
The occupiers in the
Zulu
matter however brought an
application for leave to intervene in the proceedings in which the
interim order had been granted.
The application for leave to
intervene was brought ahead of the return day of the
rule
nisi
and was dismissed by the high court. Subsequent to granting
the interim order and as a result of the demolition of two structures
that had been occupied for some time, the two occupiers of the
demolished structures brought an urgent application on the day
following the granting of the interim order to prohibit further
demolition of homes.
[32]
The municipality admitted that it had demolished structures and
relied on the interim order authorizing
it to do so. The
municipality’s case was not that the two occupiers whose
structures had been demolished subsequent
to the interim order being
granted, had nothing to do with the occupiers, nor that the
structures did not belong to them.
It had impliedly accepted
that the structures may have belonged to the occupiers, but relied
upon the interim order for its authority
to carry out the
demolitions. The inconsistency in the municipality’s
contentions prior to and subsequent the granting
of the interim order
in respect of the authority to demolish the structures erected on the
property, caused the Constitutional
Court to overturn the order
refusing the occupiers leave to intervene. The Constitutional Court
granted leave to the occupiers
to intervene which in turn allowed
them to anticipate the extended return day of the
rule
nisi
.
[33]
In the present matter the appellant did not apply for leave to
intervene after the granting of the
interim order. The appellant
filed a notice with the heading: “First Respondent’s
Notice of Intention to Oppose”.
However, in the answering
affidavit, it is denied that the appellant “have threatened or
are threatening to unlawfully occupy
the land” or that the
members of the Forum admit to being “invaders”, which is
in direct contrast with the party
cited as the first respondent by
the respondent. Despite filing a notice to oppose the application,
the appellant denies that its
members in fact fall within the
citation of the first respondent. The term
locus standi in judicio
not only refers to the capacity of a natural or juristic person to
institute or defend legal proceedings, the term is also used
to refer
to the interest which a party has in the relief claimed or the right
to claim the relief.
[34]
Even though Raikane AJ held that no notice to oppose the application
was filed, the finding was clearly
intended to refer to the
unidentified persons cited as the first respondent. In her judgment,
Raikane AJ refers to the answering
and verifying affidavits delivered
on 28 August 2020 by the appellant from which the court
a
quo
concluded that the appellant lacks the necessary
locus
standi
due to the concession made that the members do not form part of
either the first or the second respondent as cited. The court
a
quo
held that any person entitled to join as a plaintiff or liable to be
joined as a defendant in any action, may on notice in accordance
with
the provisions of Rule 12 apply for leave to intervene at any stage
of the proceedings. A person who has a legal interest
[18]
must be joined, and is therefore generally entitled to join or liable
to be joined within the meaning of the rule. Once a direct
and
substantial interest becomes apparent the proceedings should not
continue in the absence of such a party.
[35]
The appellant’s contention that the court
a quo
faulted
by disposing of the matter simply on a technical point that the
appellant chose to oppose the application by way of a notice
to
oppose rather than an application for leave to intervene is unduly
restrictive and technical and does not accord with the more
generous
approach to standing that applies in matters such as these, is
misplaced. If the appellant is correct in this argument,
it would not
have been necessary for the Constitutional Court to grant the
application for leave to intervene in the
Zulu
matter.
[36]
In my view the appellant failed to show that the order granted by the
court
a quo
directly affects their rights or interests or has
the potential to negatively impact upon their rights or interests. In
Giant Concerts CC v Rinaldo Investments (PTY) Ltd and Others,
Cameron J held as follows in explaining the establishment of
standing by a party:
“
[46]
Standing is not a technical or strictly-defined concept. And
there is no magical formula for conferring it.
It is a tool a
court employs to determine whether a litigant is entitled to claim
its time, and to put the opposing litigant to
trouble.
[47] Each
case depends on its own facts. There can be no general rule
covering all cases. In each case,
an applicant must show that
he or she has the necessary interest in an infringement or a
threatened infringement. And here
a measure of pragmatism is
needed.”
[19]
[37]
There is no evidence that the respondent breached the undertaking
provided in the replying affidavit
that people who occupied the land
before the national lockdown will not be evicted by way of the order
granted by the court
a quo
. The application was not aimed at
those occupiers but “targeted at the recent land invaders as
described in the founding
affidavit”. The appellant will be
able to seek declaratory relief and/or a prohibitory interdict in the
event of any transgressions
by the respondent and failure to adhere
to and implement remedies under the PIE Act. The provisions of
section 26(3) of the
Constitution requires that prior to an eviction
being granted or the demolition of a home being authorised, an order
of court must
be sought and that such order may only be granted after
a consideration of all of the relevant circumstances.
[38]
Mr Brand’s submission that the implementation of the order as
it stands may be detrimental to
the appellant and any rephrasing of
the order will not alleviate the possibility of potential harm to the
members of the appellant,
is without substance and purely
speculative. The provisions of prayers 2 and 3 of the interim order
was implemented on 3 June 2020
to stop the influx of invaders onto
the land. It is not the appellant’s case that any
inappropriate evictions followed
subsequent to the granting of the
interim order, as was the case in
Zulu.
Even
though the implementation of the order may be difficult
[20]
in that a distinction will have to be made between invaders of the
land during May and June 2020 as opposed to any occupiers who
had
been residing on the land prior to May 2020, it is evident that the
respondent has up until the hearing of the appeal been
able to
refrain from abuse or exploitation of the order which, in my view
clearly distinguishes this matter from the facts in the
Zulu
matter.
[39] I
am furthermore of the view that the wording of paragraph 3.2 and 3.3
of the order granted by the court
a quo
provides sufficient
protection to the appellant’s members in that only the removal
and/or demolition of any vacant and unoccupied
structures erected on
the land at the time of granting of the order as well as the removal
and demolition of any new structure
erected since the granting of the
order have been authorised.
[40]
Clearly the appellant does have legal standing as envisaged in terms
of the provisions of section 38(e)
of the Constitution for opposing
the application in the court
a quo
. Procedurally the appellant
had to apply for leave to intervene as held by the Constitutional
Court in
Zulu.
However, I am not convinced that the appellant
made out a case that they have a direct and substantial interest in
the outcome of
the proceedings or a legal interest which will
prejudicially be affected by the order granted by the court
a quo
.
The appellant failed to buttress any averment pertaining to the
possibility of infringements of their rights with facts
that such
rights are threatened and are in need of protection by the court.
[41]
I am satisfied that the finding of the court
a quo
that the
appellant does not have
locus standi
cannot be faulted,
therefore the appeal stands to be dismissed. I am of the view that no
order as to costs should follow.
ORDER:
[42]
I
would thus make the following order
:
The
appeal is dismissed.
VAN
RHYN. AJ
I
concur.
MATHEBULA, J
I
concur.
DANISO, J
It is so ordered.
On
behalf of the Appellant:
ADV.
D BRAND and ADV R OZOEMENA
Instructed by:
UFS
LAW CLINIC
On
behalf of the Respondent:
ADV
T MOSIKILI
Instructed
by:
MMI
INCORPORATED
[1]
2014 (4) SA 614
at [13] and [14].
[2]
Giant Concerts CC v Rhinaldo Investments (Pty) Ltd and Others (CCT
25/12)
[2012] ZACC 28
;
2013 (3) BCLR 251(CC)
(29 November 2012) at
[34].
[3]
Ngxuza and Others v Permanent Secretary, Department of Welfare,
Eastern Cape and Another 2001(2) SA 609 (E) at 618E- 619F.
[4]
Zulu and Others v eThekwini Municipality and Others 2014 (4) SA 590
(CC).
[5]
National Coalition for Gay and Lesbian Equality & Others v
Minister of Home Affairs
2000 (2) SA 1
(CC) at para 21 footnote 18.
“A case is moot and are therefore not justiciable if it no
longer presents an existing or
live controversy which should exist
if the court is to avoid giving advisory opinions on abstract
positions of law.”
[6]
[2004] ZACC 7
;
2005 (1) SA 217
(CC).
[7]
At [20].
[8]
2001 (1) SA 1254 (CPD).
[9]
At 1262 B-D.
[10]
1996 (1) SA 984 (CC).
[11]
1996 (3) SA 467
(WLD).
[12]
At 474E-H.
[13]
Ferreira v Levin at [165].
[14]
South African Association of Personal Injury Lawyers v Heath 2000
BCLR 1131(T).
[15]
Highveldridge Residents Concerned Party v Highveldridge Transitional
Local Council
2002 (6) SA 66
(T); Rail Commuter Action Group v
Transnet Ltd t/a Metrorail (No1) 2003 (5) SA 518 (C).
[16]
National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs 2000 (2) SA 1 (CC).
[17]
2014 (4) SA 590 (CC).
[18]
Bowring NO v Vrededorp Properties CC
2007 (5) SA 391(SCA)
at
para 21.
[19]
At [46] and [47].
[20]
Unlawful Occupiers, School Site v City of Johannesburg
2005 (4) SA
199
at [31].