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[2022] ZAECELLC 19
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Centre for Local Community Rights NPO (Farm [....] , Bongweni) v Buffalo City Municipality (EL915/2021) [2022] ZAECELLC 19 (26 July 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, EAST LONDON)
Case
No: EL915/2021
In
the matter between:
THE
CENTRE FOR LOCAL COMMUNITY RIGHTS NPO
(FARM
[....],
BONGWENI) Applicant
And
BUFFALO
CITY MUNICIPALITY
Respondent
JUDGMENT
BESHE
J:
[1]
The applicant approached this court for an order in
inter alia
the following terms:
1.
That the respondent takes immediate action to ensure that no further
illegal dwellings are erected on Farm [....], Old King William’s
Town Road, East London;
2.
The respondent is to take all necessary action regarding the
illegally erected developments on Farm [....] – including
but
not limited to having the illegal structures or dwellings taken down
and removed, finding the illegal dwellers/persons residing
in the
property similar or alternative accommodation or housing and placing
them in such housing or accommodation, building or
erecting a fence,
wall or similar structure to prevent further illegal
structures/dwellings and squatters;
2.
To disconnect and remove all illegal connections;
4.
Costs of suite.
[2]
It later turned out that the respondent had previously
obtained an order against the persons who were attempting
or
threatening to unlawfully occupy the Farm in question, namely Farm
[....], East London. In terms of the order which was confirmed
on the
6 February 2018, the unlawful occupiers were interdicted and
restrained from occupying the Farm [....]. Part of the order
directed
the Sheriff of this court with the assistance of South African Police
Services, were required, to take all steps to demolish
and or
dismantle any structure erected on the said property in contravention
of this order. As to why the order has not been enforced
or carried
out, remains a mystery. Be that as it may, it is clear to me, and it
would appear to both parties that there is an extant
order which was
granted in favour of the respondent meant to deal with the unlawful
invasion of the farm. This in my view obviates
the need for the order
sought. It renders the matter moot. What remains is the determination
of whether any of the parties is entitled
to costs, and to what
extent.
[3]
It was only in the answering affidavit that existence of
this order was revealed by the respondent. The application
was
preceded by the exchange of correspondence between the parties as
well as a postponement to allow for respondent to file an
opposing
affidavit. Even after the emergence of the existence of this order,
the applicant was not amenable to withdrawing the
application in the
absence of a tender for costs by the respondent on the basis that had
it not failed to inform the applicant
about the existence of the
order in its favour, the proceedings could have been curtailed much
earlier.
[4]
One of the points raised
in limine
by the
respondent is that the applicant has not established that it is
clothed with
locus standi
to initiate these proceedings.
[5]
The founding affidavit is deposed to by
Mr Christo
Theart
who describes himself as the chairperson of the applicant,
a Non-Profit Organisation (NPO). In the Constitution of the said NPO
it is described as non-profit organisation based in East London,
South Africa, comprising of local government activists who help
the
community, especially the poor and the disadvantaged to defend their
rights of access to information, their rights to complain
and to make
representations to the municipality and their right to equitable
access to municipal services.
[6]
As to how these proceedings came to life,
Mr
Theart
states that “
During
or about April 2021 I was approached by members and owners of
surrounding farms 922 and [....], old King William’s
Town Road,
East London pertaining to a development of an informal settlement on
Farm [....]
”.
[1]
He goes on to outline the information he received regarding this
development at length. At paragraph 12 of the founding affidavit
he
states that the members of the community have engaged the respondent
and various other role players since December 2020. He
however does
not tell us of the substance or subject of the said engagement. To
this end, he refers the court to an affidavit deposed
to by
Ms
Maria Herman
who is said to have addressed correspondence to the respondent, Eskom
and other role players. We are not informed of the subject
of this
correspondence. In her confirmatory affidavit
Ms
Herman
only
confirms
Mr
Theart’s
affidavit in so far as it relates to her. She goes on to say the
situation which is transpiring across the road from the road is
spiralling out of control as more shacks are being developed. The
illegal dumping is increasing which is creating an awful smell
in the
area and attracting vermin and flies. The problem with
Ms
Herman’s
affidavit
is that she seems to only confirm that she wrote letters to the
respondent. But as I said, we do not know what the subject
of the
correspondence was. Secondly, she states that she resides on Farm 925
yet
Mr
Theart
stated that he was approached by members and owners of Farms 922 and
[....]. The upshot of this is that there is no confirmation
of what
Mr
Theart
alleges
he was informed and advised of by those who approached him. There is
also no confirmation that he was approached by the
members of the
community as he alleges.
[7]
In the circumstances, as outlined hereinabove, is
Mr
Theart
or the applicant (NPO) clothed with the
locus standi in
judicio
to institute this application? If it is not, in my view,
the NPO will not be entitled to the costs of the application.
[8]
The requirement for
locus
standi in judicio
are said to be the following:
[2]
o
the applicant for relief must have adequate interest in the
subject matter of the litigation – a direct interest.
o
The interest must not be far removed.
o
It must be actual, not abstract or academic.
o
It must be a current interest not a hypothetical one.
It
is also trite that the duty to allege and prove
locus standi in
judicio
rests on the party instituting the proceedings. Applicant
has neither alleged or proved that it has
locus standi
to
institute these proceedings. This issue was pertinently raised in the
respondent’s answering affidavit namely lack of
locus standi
in judicio
. The applicant did not address the issue at all in the
replying affidavit. None of the factors listed under
Section 38
of the Constitution are raised by the applicant as clothing it with
the requisite
locus standi
. Those are:
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act on
their own;
(c)
anyone acting as a member of or in the interest of a group of
a class of persons;
(d)
anyone acting in the public interest;
(e)
an associate acting in the interest of its members.
None
of these factors have been alleged and proved to be clothing the
applicant with the necessary
locus standi in judicio
. On this
ground alone, the application fell to be dismissed.
[9]
It is my considered view therefore that the applicant is
not entitled to an award for costs. I am further of the
view that
there should be no order as to costs given that the applicant is a
non-profit organisation and the nature of the application
as well as
the manner in which the respondent handled the matter. In particular,
by its failure to inform the applicant that there
was an extant order
dealing with the same issue.
[10]
Accordingly, the application is dismissed. There will be no order as
to costs.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant: Adv:
B C Tarr
Instructed
by: NIEHAUS
McMAHON ATTORNEYS
43
Union Avenue
Selborne
EAST
LONDON
Ref:
B Blignaut /mk/MAT 8178
Tel.:
043 – 721 3322
For
the Respondent: Adv:
S Y Malunga
Instructed
by: SMITH
TABATA ATTORNEYS
12
Helena Road
Beacon
Bay
EAST
LONDON
Ref:
Mr Y Mnqaba/gn/04E044864
Tel.:
043 – 748 6300
Date
Heard
:
5 May 2022
Date
Reserved
: 5 May
2022
Date
Delivered
: 26 July
2022
[1]
Paragraph
[7] of founding affidavit page 6 of indexed papers.
[2]
Erasmus
Superior Court Practice 2
nd
Edition Volume 2 by Loggerenburg: D1-186.