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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 11256/2023
In the matter between:
ARMIN AEBERHARD APPLICANT
and
SIGNAL VIEW CLOSE HOMEOWNERS
ASSOCIATION FIRST RESPONDENT
MARK PIENAAR SECOND RESPONDENT
ALEWIJN ERHARDT JOUBERT THIRD RE SPONDENT
BELLINGAN –JOUBERT –MULLER ATTORNEYS FOURTH RESPONDENT
NO. 1 K [...] ROAD (PTY) LTD FIFTH RESPONDENT
CITY OF CAPE TOWN SIXTH RESPONDENT
REGISTRAR OF DEEDS SEVENTH RESPONDENT
Neutral citation: Aeberhard v Signal View Close Corporation and Others (Case
no 11256/2023) [2025] ZAWCHC 188 (05 May 2025)
Coram: NUKU J
Heard: 4 February 2025
Delivered: 5 May 2025
Summary: Practice – locus standi – issue of locus standi to be decided in limine
before any consideration of the merits – a party approaching court in terms of section
38 of the Constitution must allege infringement or threat to a right in the Bill of Rights
– failure to do so fatal to the party’s locus standi.
ORDER
1 The application is dismissed with costs on scale B, including costs of two
counsel, where so employed.
JUDGMENT
Nuku J
Introduction
[1] The applicant seeks declaratory relief that the encroachment and use of
Portion 13 of Erf 1[...] Tamboerskloof (the property) by the first respondent and its
members is unlawful (the declaratory relief). In addition, the applicant seeks an
interdictory r elief directing the first respondent and its members to reverse the
unlawful encroachment onto the property at their expense and cost (the interdictory
relief). Lastly the applicant seeks costs of suit against those respondents who
oppose the application.
[2] The applicant is a Swiss national who owns immovable property situated at [...]
Signal View Close, Cape Town, Western Cape (the applicant’s property). The
applicant’s property forms part of a community scheme in respect of which the first
respondent was established as the Homeowners Association, and as such the
applicant is a member of the first respondent.
[3] The first respondent is a Homeowners Association which was established in
respect of a community scheme that resulted from the subdivision of Re mainder Erf
1[...] Tamboerskloof, Cape Twon also known as No.1 K [...] Road (the original
property). The first respondent opposes the application.
[4] The second respondent is also a member of the first respondent and at some
stage was its chairperson. He i s cited in these proceedings in his capacity as the
chairperson of the first respondent, but it is common cause that he is no longer the
chairperson of the first respondent. The third respondent is also a member of the first
respondent, an attorney practis ing as such under the name and style of the fourth
respondent and the sole director of the fifth respondent. The second to fourth
respondents do not oppose the application.
[5] The fifth respondent is the owner of the original property over which the
comm unity scheme known as Signal View Close was developed and in respect of
which the first respondent was established as the Homeowners Association. The fifth
respondent opposes the application.
[6] The sixth respondent is the Municipality that exercises jur isdiction over the
property that forms the subject matter of this application. It approved the subdivision
of the original property and imposed conditions and one of those conditions is central
to this application. The seventh respondent is responsible for registration of transfers
of properties in the Western Cape Province, including the properties that form the
subject matter of these proceedings. The sixth and seventh respondents do not
oppose the application.
[7] In opposing the application, the first and fifth respondents contend that (a) the
applicant lacks the necessary locus standi to bring this application, (b) this court
lacks jurisdiction to hear the application, (c) the applicant should be non -suited for
failure to join the South African Nationa l Parks, and (d) the applicant has not made
out the case for the relief he seeks. Before considering these issues, it is necessary
to set out the factual background that culminated with the applicant instituting this
application.
Factual Background
[8] The dispute in this matter originates from the subdivision of the original
property. The subdivision was approved by the sixth respondent on 27 December
1993. The approval authorised the subdivision of the original property into 14
portions. The property, in terms of the original conditions of the approval of the
subdivision, was designated as a Public Open Space which was be held in title by a
Homeowners Owners Association to be formed.
[9] On 20 November 1996 and prior to the registration of the subdivisio n, the
sixth respondent wrote to Miller Gruss Katz & Traub Attorneys (these being the
attorneys who were attending to the registration of the subdivision) advising of the
amendment of the conditions of the approval of the subdivision of the original
proper ty. The sixth respondent’s letter, in the relevant part, reads:
‘1. In terms of Section 42 (3) of the Land Use Planning Ordinance 1985
the conditions of Council’s subdivision approval SE 13653 dated 1993 -12-27
are hereby amended by the addition of the fol lowing:
“13.1 TRANSFER OF PORTION 13 TO COUNCIL
13.1 Portion 13 (zoned Public Open Space) shall be transferred to Council
free of compensation.”
2. The above was omitted in error from the original approval and arises
from (a) the original owner’s intention to give the land represented by Portion
13 to Council, and (b) By the requirement of Council that this portion of land
become part of the New Na tional Park and be managed as such.
3. Please arrange for the transfer of the said Portion of land as soon as
possible.’
[10] The sixth respondent’s letter advising of the amendment of the conditions of
the approval of the subdivision appears to ha ve caused some anxiety to some of the
purchasers of the portions of the original property. To this extent, C & A Friedlander
Attorneys addressed a letter dated 4 December 1996 to Miller Gruss Katz & Traub
Attorneys requesting that the subdivision should be registered without the transfer of
the property to the sixth respondent ‘so as to afford the purchasers … the
opportunity once the Home Owners Association has been formed, to formulate a
view on the matter and, to take the necessary action to protect the ir interests.’ In
response, Miller Gruss Katz & Traub Attorneys confirmed, in their letter dated 5
December 1996, that ‘the transfers have been lodged as previously planned, without
transfer of the property to the Council.’
[11] On 5 February 1997, the th ird respondent addressed a letter to the sixth
respondent. The letter was in the fourth respondent’s letterhead and the third
respondent advised that he was acting on behalf of nine of the twelve owners of the
subdivided property. The letter recorded the d istress and anguish caused by the
error referred to in the sixth respondent’s letter dated 4 December 1996 regarding
the amendment of the conditions of the approval of the subdivision of the original
property. The letter went on to request the sixth respon dent’s consent to have the
property registered in the name of the first respondent, as per the original conditions
of approval.
[12] The Executive Director: Planning and Economic Development of the sixth
respondent responded in a letter dated 17 July 1997 that:
‘The hatched portion lettered ABCDEF was acquired by the City, but transfer
was not taken and title not registered in the name of the Municipality of Cape
Town. It should be noted that in the circumstances registration is not
obligatory.
The subdi visional plan for Erf 1[...] including the hatched portion was
submitted and approved subject inter alia to the hatched portion being
retained as Public Open Space.
On registration of the first portion the subdivision became effective and the
Public Open Sp ace, although registered in the name of No. 1 K [...] Road (Pty)
Ltd, in fact vested in the Municipality of Cape Town as it still does.
It should be noted further please that by virtue of its position in relation to the
nature reserve boundary the Nationa l Parks Board insists that that it be
included in the nature reserve.’
[13] The applicant’s discontent with the first respondent, as gleaned from the
papers, started when the first respondent’s trustees resolved to erect a new fence.
Part of this new fenc e was to encroach onto the property. This appears from his
email of 9 August 2006 where he wrote:
‘Thanks for the clarification. In order to clarify from my side I NEVER gave my
agreement to the “clarified version” of section 13 either. … Everybody has th e
right to know what is going to happen with the existing fence and with the
“new acquired” land….”
[14] On 23 November 2006, Steer Property Services (Pty) Ltd wrote to all the
members of the first respondent advising, among other things, that “The fence will be
electrified and will be set back 25m from the existing boundary. Alewijn Joubert has
arranged for the title to this land to be passed back to Signal View Close
Homeowners Association….”
[15] On 16 February 2016, the sixth respondent served the fi rst respondent with a
Notice of Intention to issue a Notice of Contravention of Section 11 (1) (r) of the City
of Cape Town Public Parks By -Law (the Notice of intention to issue a Contravention
Notice). The Notice of intention to issue a Contravention Noti ce alleged that the first
respondent had contravened the provisions of City of Cape Town Public Parks By -
Law (the By -Law) by erecting a fence that encroaches over the property. The first
respondent was given an opportunity to make written representations a s to why it
should not be issued with a Notice of Contravention directing it to remedy the harm
caused by the erection of the fence over the property.
[16] The first respondent responded to the Notice of intention to issue a
Contravention Notice by way of a letter dated 29 February 2016 disputing that the
fence encroaches over the property. The letter further advised that the decision to
erect the fence was taken during 2006 at a time when the fifth respondent held title
to the property. The letter further suggested the leasing of the property by the first
respondent from the sixth respondent. This was done in an attempt to resolve the
matter amicably.
[17] Having received the response to its Notice of intention to issue a
Contravention Notice, the sixth respondent did not procced with the issuing of a
Notice of Contravention. Instead, further correspondence ensued between the
parties exploring the possibility of the first respondent leasing the property from the
sixth respondent. It is safe to say that t he sixth respondent has not made a final
decision on this issue of the lease of the property by the first respondent.
[18] On 24 May 2016, the applicant met with the then executive mayor of the sixth
respondent, Alderman Patricia De Lille (Ms De Lille) to raise his concerns about what
he considered to be the first respondent’s encroachment onto the property. When
nothing came of this meeting, he followed up with an email dated 6 December 2016
to which Ms De Lille responded on 25 January 2017 advising that the sixth
respondent is aware of the contravention and that the Parks Department was
currently liaising with the chairp erson of the first respondent who had made a formal
application to formally lease the property. Ms De Lille further advised that no final
decision had been made by the sixth respondent at that stage.
[19] On 8 November 2017, Ms Pauline McConney (Ms McCo nney), addressed a
letter to the second respondent on behalf of the sixth respondent advising that she
had considered the lease proposal and resolved that the first respondent may apply
to lease the property through the sixth respondent’s processes provide d for
applications for such leases of the sixth respondent’s properties.
[20] On the same day referred to in the preceding paragraph, Knowles Hussain
Lindsay Inc Attorneys, acting on behalf of the applicant, addressed a letter to the
sixth respondent rec ording the applicant’s objection to the proposed lease of the
property.
[21] Ms McConney responded to the letter from Knowles Hussain Lindsay Inc
Attorneys advising that the matter is receiving attention, and that the sixth
respondent has to follow due p rocess which includes public participation and
consultation processes. She concluded her response by stating that “until this matter
is concluded with definite outcomes, I can assure you that we are giving it the
attention it requires.”
[22] On 3 May 20 18, Paddocks who were also acting on behalf of the applicant,
addressed a letter to Ms McConney advising that “over one hundred new plants
have been established along the fence, erected without due authorization on the
property, and that certain members of the first respondent are in the process of
attempting to install security infrastructure along the aforementioned fence.” The
letter requested further information relating to the timelines for the resolution of the
matter.
[23] There is no indication t hat the applicant received any response to the above
correspondence. Instead, he launched the present application more than five years
later seeking wide ranging relief which has since been trimmed down to the relief
referred to in paragraph [1] above.
[24] As already stated the application is opposed only by the first and fifth
respondents. The notice of opposition on behalf of the first respondent was delivered
on 28 July 2023 simultaneously with the first respondent’s notice in terms of Rule 35
(12) and (14) of the Uniform Rules of Court (Rule 35 Notice).
[25] The applicant responded by delivering a notice in terms of Rule 30A of the
Uniform Rules (Rule 30A Notice) contending that the first respondent’s Rule 35
Notice constitutes an irregular step. The first respondent was afforded a period of 10
days within which to remove the cause of complaint. Failing such removal, the
applicant threatened to apply for the setting aside of the first respondent’s Rule 35
Notice.
[26] It is not apparent from the paper s whether the first respondent responded to
the applicant’s Rule 30A Notice. The next set of documents that the applicant
delivered on 21 August 2023 are its response to the first respondent’s Rule 35
Notice as well as its Notice in terms of Rule 7 (Rule 7 Notice) by which it disputed
the authority of the first respondent’s attorneys of record to act on behalf of the first
respondent.
[27] A special power of attorney dated 23 August 2023 signed by the second
respondent in his capacity as the trustee of th e first respondent and authorizing the
first respondent’s attorneys of record to act on its behalf was delivered on 24 August
2023.
[28] The first respondent’s answering affidavit was delivered on 19 September
2023 wherein the first respondent, in additio n to opposing the application on the
merits, took issue with (a) the applicant’s locus standi to bring this application, (b) the
jurisdiction of this court in light of the provisions of the first respondent’s constitution,
of which the applicant is a membe r, which requires disputes between members and
trustees to be referred to arbitration, and (c) non -joinder, in view of the applicant’s
failure to join the South African National Parks (SANParks).
[29] In reply, the applicant, in addition to dealing with t he merits of the first
respondent’s response, persisted with his disputation of the authority of the first
respondent’s attorneys of record to act on behalf of the first respondent.
Issues for determination
[30] From the above narration it is clear that there are a number of preliminary
issues that require determination prior to the determination of the merits of the
application.
[31] The first issue relates to the applicant’s locus standi to bring the application.
The issue of locus standi requires de termination first because the lack of locus standi
may be dispositive of a matter. This is because on the authority of the Constitutional
Court in Giant Concerts when a party has no standing, it is not necessary to
consider the merits, unless there is at least a strong indication of fraud or other gross
irregularity in the conduct of a public body.
[32] In the event that the applicant gets over the hurdle of standing, the next issue
that would have to be considered is the court’s jurisdiction. As with the standing, the
issue of jurisdiction, if decided against the applicant may be dispositive of the matter
because the court cannot consider the merits of the application where it lacks the
necessary jurisdiction to do so.
[33] Once the jurisdiction of the court is established the next issue to be
considered would have to be the applicant’s objection to the representation of the
first respondent by its current attorneys of record. Thereafter the issue of non -joinder
would have to be considered and then the merits of the application. With that said I
consider the issue of the applicant’s locus standi.
Does the applicant have the locus standi to bring this application?
The applicant’s pleaded case
[34] The applicant claims to bring this application in his own interest as well as in
the public interest.
[35] At the commencement of the hearing counsel for t he applicant was requested
to direct the court’s attention to the specific paragraphs in the papers dealing with the
applicant’s locus standi. In this regard he referred to the Court to paragraphs 3,6, 63,
64, and 91 to 93 of the founding affidavit as well as paragraphs 44, 92, 107 and 108
of the replying affidavit. I consider it necessary to reproduce these paragraphs before
setting out the parties’ submissions regarding the applicant’s locus standi.
[36] In sub -paragraph 3.1 of the founding affidavit the applicant states that “I
depose to this affidavit in my personal capacity with due regard to the public’s
interest herein”. In a section of the founding affidavit dedicated to the locus standi,
the applicant states the following:
‘4. I have the neces sary locus standi in judicio to act as a litigant herein.
5. My interest in this matter is derived from section 38 of the Constitution
of the Republic of South Africa, 1996 which provides for the following:
“Anyone listed in this section has the right t o 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”.
6. Considering the above, I approach this honourable court on the
following grounds:
6.1 In my own interest;
6.2 In public interest.’
[37] In paragraphs 63 and 64 of the founding affidavit states that:
‘63. The first respondent elected to unlawfully fence off the Public Open
Space and extend its territory by encroach ing onto the Public Open Space to
the detriment of the public’s rights and privileges thereto.
64. The first respondent has further created private gardens on the Public
Open Space through its members.’
[38] Finally and under a section of the founding affidavit dealing with applicant’s
clear right he states that:
‘91. I humbly refer this honourable court to annexure “FA 8” which confirms
that, the Public Open Space has been reserved for inclusion into th e national
park of the sixth respondent for environmental conservation reasons.
92. Section 24(b)(ii) of the Constitution of the Republic of South Africa,
1996 provides for the following:
“Everyone has the right to have the environment protected, for th e benefit of
present and future generations, through reasonable legislative and other
measures that promote conservation”.
93. Section 25(1) of the Constitution of the Republic of South Africa, 1996,
provides further:
“No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property”.’
[39] The first respondent, in its answering affidavit, criticised the applicant for
failing to set out a proper factual basis in support of its c laim to have the necessary
locus standi to bring this application. The response by the applicant was to deny that
it had not set out a proper factual basis in support of its claim to have the necessary
locus standi to bring this application. In paragraph 4 4 of his replying affidavit, the
applicant stated that “I seek the relief both in my own interest and in the public
interest.” In paragraph 92, he further stated that “The Public is being prejudiced on
the first respondent’s own version.”
[40] In a sectio n of the replying affidavit dealing with the first respondent’s
challenge to the applicant’s locus standi, the applicant stated that:
‘107. The conduct of the first respondent in encroaching on and using the
Public Open Space, to the exclusion of the gene ral public, is clearly unlawful.
It stands to reason that civil society cannot allow Homeowners Associations to
simply annex and appropriate public land. Moreover, the use of the Public
Open Space in this way may constitute a material contravention of inte r alia
the Planning Bylaw and the Public Parks Bylaw, 2010, as pointed out in the
contravention notice attached to the founding affidavit as Annexure “FA11”.
These contraventions constitute criminal offences.
108. My rights are affected because, as a memb er of the first respondent, I
am effectively an unwilling participant in this unlawful and illegal conduct. I
have an interest and correlative right to prevent the first respondent from
engaging in such conduct. Particularly so in this instance where the f irst
respondent has been hijacked by a minority of trustees who are in reality
acting in their own self -interest. The relief sought in the Notice of Motion is
designed to prevent the perpetuation of this unlawful conduct by the first
respondent.
109. However, as foreshadowed at paragraph 99.2 of my founding affidavit,
the primary thrust of the application is to protect the general public from the
unlawful conduct of the first respondent. This on the basis that it is manifestly
in the public interest to en sure that the public has access to the Public Open
Space and that it is in the interests of justice that Homeowners Associations,
including the first respondent, are discouraged from simply annexing and
appropriating public land.
110. In any event, I am a member of the class of persons in whose favour
the prohibitions in the bylaws are intended to protect and I am thus entitled to
enforce the prohibitions on this basis too.’
The first and fifth respondent’s pleaded case
[41] The deponent to the answer ing affidavit filed on behalf of the first respondent,
in addition to criticizing the applicant for failure to set out a proper factual basis in
support of his claim to have the necessary locus standi to bring this application,
stated that:
‘27. I am advi sed that a successful challenge to a public decision can be
brought only if the right remedy is sought by the right person in the right
proceedings. An own interest litigant under the Constitution does not acquire
standing from the invalidity of the challe nged decision or law, but from the
direct effect it will have on that litigant’s rights or interests.
28. The applicant does not explain, which he is by law obliged to do, how
the ownership dispute regarding the public open space affects his rights or
interests (as an own interest litigant). The applicant seems to accept that he
has no personal right or in terest. He says so at paragraph 99.2, “I Have no
personal interest in the subject matter, save for the public benefit hereof”.
29. The applicant purports to act on behalf of the public, in terms of section
38 (d) of the Constitution, to vindicate the publ ic’s rights in terms of sections
24 (Environment) and section 25 (Property) of the Constitution. However,
these allegations are similarly vague and unsubstantiated. No factual basis for
these allegations has been established.
30. I deny that the applicant , a Swiss national acts in the public interest.
This is with respect a charade. The applicant is a disgruntled member of the
HOA (he is a co -owner of unit 3). He has no broad or unqualified capacity to
litigate against illegalities (to the extent that they exist which is denied).
31. Certainly, the applicant has no standing to act on behalf of the
Municipality. It is the Municipality’s obligation, should it see fit to do so, to
ensure that the Company transfers the public open space to it (if that is in f act
its legal position).’
[42] For its part, the fifth respondent simply denied that the applicant has the
necessary locus standi to seek the relief he seeks both in his personal capacity as
well as in the public interest.
[43] Having set out the cas e pleaded by each of the parties I now turn to the
submissions that were made on behalf of each of the parties.
Submissions on behalf of the applicant
[44] Starting with own interest standing, it was submitted that the applicant has
explained that his rights are affected because, as a member of the first respondent,
he is effectively an unwilling participant in this unlawful and illegal conduct. Because
of that, it was submitted, the applicant has an interest and a correlative right to
prevent the first respondent from engaging in such conduct and the relief sought in
the Notice of Motion is designed to prevent the perpetuation of the unlawful conduct
by the first respondent.
[45] It was further submitted that in any event, the applicant is a member of the
class of persons in whose favour the prohibitions in the bylaws are intended to
operate and he is thus entitled to enforce the prohibitions on this basis too. Referring
to the Notice of intention to issue a Contravention Notice, it was submitted that t he
sixth respondent warned the first respondent that its conduct is a violation of, inter
alia, the Public Parks Bylaw, 2010 (“the Parks Bylaw”) and that this constitutes a
criminal offence.
[46] Regarding the public interest standing it was submitted th at a person acting in
the public interest must simply show that the public have a sufficient interest in
obtaining the relief claimed. However, this is subject to the important qualification
that an applicant who claims standing on the grounds that he or she is acting in the
public interest must show that he or she is genuinely acting in the public interest. In
order to determine whether an applicant is genuinely acting in the public interest, a
Court will take certain factors into account. These include w hether there is another
reasonable and effective manner in which the challenge can be brought; the nature
of the relief sought, and the extent to which it is of general and prospective
application; and the range of persons or groups who may be directly or indirectly
affected by any order made by the Court and the opportunity those persons or
groups have to present evidence and argument to the Court..
[47] Turning to the facts of the matter at hand it was submitted that the applicant
alleges that the first respondent elected to unlawfully fence off the Public Open
Space (Portion 13) “to the detriment of the public’s rights and privileges thereto” and
that this amounts to “clear unlawfulness and injustice taking place.” This was said to
be particularly so bec ause the property has been reserved for inclusion into the
National Park for environmental conservation reasons. Reference was further made
to the allegations by the applicant that the public has a clear right pertaining to the
Public Open Space and would suffer undue prejudice in being deprived of such
rights.
[48] It follows, so it was argued, that the relief sought in this application is
undoubtedly and genuinely in the public interest, particularly so as the sixth
respondent has adopted a supine appro ach to asserting the rights of the public to the
Public Open Space, of which the sixth respondent is the custodian on behalf of the
general public.
[49] Reference was made to the preamble to the Western Cape Land Use
Planning Act 3 of 2014 which establis hes that the purpose of the Act is inter alia to
provide for the regulation of public places and municipal roads arising from
subdivisions. So too was reference made to section 2 and 3 which provide that
Municipalities are responsible for land use planning within their respective areas and
that Municipalities must enforce their decisions and applicable bylaws in this regard.
[50] This Court was further referred to the provisions of Chapter 12, Part 2 of the
Development Management Scheme (Schedule 3 of the Municipal Planning Bylaw,
2015) which provide as follows in relation to public open space (which are deemed
as OS2 zoning):
‘The OS2 zoning provides for active and passive recreational areas on public
land, as well as protection of landscape and heritage areas including
woodlands, ridges, watercourses, wetlands and coastline. It is important to
recognise the interests of the general public for access to and preservation of
public open spaces.’
[51] Having regard to the definition of “public place” in the Municipal Planning
Bylaw, it was argued that, the definition makes express reference to the fact that
whilst such spaces may be owned by or vest in the sixth respondent, they are for the
use and “in favour of the general public”.
[52] Explaining what motivated the applicant to take up the cause, it was submitted
that despite the fact that the sixth respondent has a duty to regulate, preserve and
ensure the access of the general public to the pro perty which is a public open space,
the sixth respondent has inexplicably failed to do so and thus, the conduct of the first
respondent and certain of its members in encroaching on and using the property, to
the exclusion of the general public, is clearly unlawful.
[53] Finally it was submitted that the applicant has stepped into the breach by
instituting this application and it stands to reason that civil society cannot allow
Homeowners Associations to simply annex and appropriate land. In light of the
Municipality’s failure to discharge its obligations, the applicant is justified in doing so.
He undoubtedly acts in the public interest within the meaning of section 38 of the
Constitution.
Submissions on behalf of the first and fifth respondents
[54] The submissions on behalf of the first and fifth respondents were prefaced
with regards to the general rule that it is for the party instituting proceedings to allege
and prove the locus standi, with the onus of establishing that issue resting upon the
applicant.
[55] Dealing with the own interest standing, it was submitted that an own interest
litigant under the Constitution does not acquire standing from the invalidity of the
challenged decision or law, but from the direct effect it will have on that li tigant’s
rights or interests.
[56] With reference to the applicant’s explanation that “My rights are affected
because, as a member of the first respondent , I am effectively an unwilling
participant in this unlawful and illegal conduct”, the applicant wa s criticised for not
explaining how the ownership dispute regarding the property affects his rights or
interests (as an own interest litigant). It was further submitted that the use of the
property in its current form does not impact on the applicant’s rig hts and interests –
at all.
[57] It was further submitted that there is no illegality, as alleged by the applicant,
because the sixth respondent has indicated its willingness to enter into a lease
agreement with the first respondent although it has not ta ken a final decision in that
regard.
[58] To the extent that the applicant is aggrieved by the sixth respondent’s failure
to take a decision, it was submitted that, he is empowered to challenge that failure
under the Promotion of Administrative Justice Ac t, 3 of 2000 and this is because the
definition of “administrative action” includes any decision taken or “any failure to take
a decision”. It was further submitted that it is that conduct that a litigant with
appropriate standing could challenge and as su ch the applicant is the wrong person,
in the wrong forum, seeking the wrong relief.
[59] Turning to the public interest standing, it was pointed out that applicant says
that he purports to act on primarily behalf of the public, in terms of section 38 (d) of
the Constitution, in order to vindicate the public’s rights in terms of section 24
(Environment) and section 25 (Property) of the Constitution.
[60] The applicant, however, was criticised for not specifying in his founding
papers whose “property” he se eks to protect as it is not clear whether he is referring
to the property of the State, or the land of the City of Cape Town, or the public’s right
to access land based on custom or established property rights.
[61] It was further submitted that it is al so not clear whether the applicant wishes to
remove the first respondent’s usage of the public open space as a firebreak and he
has failed to specify any specific environmental issues that he seeks to vindicate by
this application.
[62] To the extent that the applicant sought to bolster his allegations relating to
section 25 of the Constitution, in his replying affidavit by alleging that “It stands to
reason that civil society cannot allow [HOA’s] to simply annex and appropriate public
land” it was submitt ed that he has misstated the facts and misunderstood the law.
This is because not every person or entity who alleges an infringement of a
fundamental right has an unfettered right of access to court. A successful challenge
to a public decision can be brou ght only if “the right remedy is sought by the right
person in the right proceedings”.
[63] It was submitted that the applicant accepts that the factors set out in Ferreira
v Levin must be applied in order to determine whether a person is genuinely acting in
the public interest. However, none of these factors were addressed in the applicant’ s
founding papers. As a result, the heads of argument filed on behalf of the applicant
cannot take the matter further. The papers are silent as to the range of persons or
groups who may be directly or indirectly affected by any order made by the Court, for
example. The papers are silent about the evidence of the public’s alleged deprivation
of rights.
[64] On the evidence before court, it was submitted that it is an uncontroverted fact
that public do not – and have never – accessed the property. Regarding the
applicant’s attempts to rely on a lone and unsupported fact that in 1997 Portion 13
was apparently reserved for inclusion into the “New National Park” for environmental
conservations reasons, it was submitted that this is unavailing. This is because in
2025, and as matters stand, SANParks disavows any responsibility for the public
open space and do not want to maintain it, a fact confirmed by SANParks’ own maps,
and correspondence received by the first respondent.
[65] Finally it was submitted that the applicant who is a Swiss national does not
genuinely act in the public interest. This is, with respect, a charade. The applicant is
a disgruntled member of the first respondent and he has no broad and unqualified
capacity to litigate against illegalities , to the extent that they exist and which is
denied.
Discussion
[66] The applicant’s founding papers contain internal contradictions in so far as his
claim to own interests standing. As pointed out on behalf the first respondent, at sub -
paragraph 99.2 of the founding affidavit, the applicant expressly states that “I Have
no personal interest in the subject matter, save for the public benefit hereof”.
[67] Where the applicant claims to be acting as an own interest litigant he says so
without making any ave rments as to his interests which he seeks to protect or
advance by instituting these proceedings. That is not difficult to understand because
where he says he has no personal interest he cannot at the same time elaborate on
the interests that he seeks to p rotect by these proceedings.
[68] On the facts as set out above, the applicant is aware that there is a process
underway regarding the possibility of the first respondent leasing the property from
the sixth respondent. He was assured by Ms. McConney that he would be advised of
the outcome of that process which was to involve public participation.
[69] It is also clear that the applicant has strong objections to the first respondent
leasing the property from the sixth respondent to the extent that he char acterized the
Notice of Intention to issue a Contravention Notice as a Contravention Notice.
Having treated the Notice of Intention to issue a Contravention Notice as a
Contravention Notice, he uses that to state as a fact, that the conduct of the first
respondent is unlawful despite him being aware that the sixth respondent has not
issued a notice to the effect that the first respondent’s conduct is unlawful. To the
contrary, the parties, that is the first and sixth respondents, are engaged in a process
that may well result in the property being leased to the first respondent. As submitted
on behalf of the first and sixth respondent, the applicant has misstated the facts in
that regard.
[70] In any event the applicant’s difficulty concerning his locus stan di is
foundational. He states that he approaches the court in terms of section 38 of the
Constitution of the Republic of South Africa, 1996 but fails to allege a right in the Bill
of Rights that has been infringed or threatened. Even when he refers to sect ions 24
and 25 of the Constitution, he does so without alleging whose rights relative to these
two provisions have been infringed or threatened. Instead, he merely repeats these
provisions without any substantiation.
[71] At the core of this matter is a potential dispute between the first respondent,
the fifth respondent and the sixth respondent regarding the ownership of the property.
If one recalls the property was part of the original property which was owned by the
fifth respondent. Upon the subdivisi on of the property, the property was designated
as a public open space which was to be held in title by the first respondent upon its
establishment, hence the first respondent’s potential claim to the property. The
property, however, remains registered in the name of the sixth respondent because it
has never been transferred either to the first respondent or to the sixth respondent.
The sixth respondent’s claim to the property arises from the amendment of the
original conditions of approval of the subdivisi on of the original property in terms of
the letter that advised that the property vests in the sixth respondent and that the
registration of the transfer is not necessary as it vests by operation of the law.
[72] In the midst of engagements between the pa rties who lay claim to the
property, the applicant, without so much laying any claim to the property, would have
this court declare the first respondent’s conduct unlawful. In my view, the applicant
cannot have any legal standing to do so either as an own interest litigant or on the
basis of the public interest standing.
[73] The applicant does not and cannot, on the fact allege let alone establish fraud
or gross irregularity and the consequence of that is that this Court cannot enter the
merits of the ap plicant’s claim. The conclusion also renders it unnecessary to
consider the other preliminary points. The applicant’s failure to establish locus standi
must result in the failure of the entire application
Costs
[74] The first and fifth respondents have be en successful and the usual rule that
costs follow the result applies. The first and fifth respondents sought costs on Scale
C, but I am not persuaded that that scale of costs is justified in the circumstances.
The matter was not sufficiently complex to wa rrant costs on Scale C. Costs will be
awarded on Scale B.
Order
[75] In the result I make the following order:
The application is dismissed with costs inclusive of counsel’s costs to be
taxed on Scale B
_____________________________
L G NUKU
JUDGE OF THE HIGH COURT
Appearances
For applicant: C Cutler
Instructed by: C K Attorneys Inc, Blouber grant
Care of: Bisset Boehmke McBlain Attorneys, Cape Town
For 1st and 5th respondents: G Solik
Instructed by: STBB Attorneys, Cape Town
For 2nd to 4th, 6th
and 7th respondents: No appearance