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[2017] ZACC 30
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Limpopo Legal Solutions v Vhembe District Municipality and Others (CCT119/16) [2017] ZACC 30; 2018 (4) BCLR 430 (CC) (17 August 2017)
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Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 119/16
In the matter between:
LIMPOPO LEGAL
SOLUTIONS
Applicant
and
VHEMBE DISTRICT
MUNICIPALITY
First Respondent
MINISTER OF WATER AFFAIRS AND
FORESTRY
Second Respondent
THULAMELA
MUNICIPALITY
Third Respondent
Neutral citation:
Limpopo Legal Solutions v Vhembe District Municipality and Others
[2017] ZACC 30
Coram:
Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Judgments:
Zondo J (unanimous)
Decided on:
17 August 2017
Summary:
leave to appeal —voluntary association —legal
standing — public interest
Biowatch
principle — cost order — not urgent —
leave is granted
ORDER
On appeal from the High Court of South
Africa, Limpopo Local Division, Thohoyandou, the following order is
made:
1.
Leave to appeal is granted only in respect of the costs order of the
High Court
of South Africa, Limpopo Local Division, Thohoyandou.
2.
Leave to appeal against the High Court’s decision that the
application was not
urgent is refused.
3.
The appeal is upheld.
4.
The costs order of the High Court is set aside and replaced with:
“There is no
order as to costs.”
5.
The first respondent is to pay the applicant’s costs in this
Court.
JUDGMENT
ZONDO J (Mogoeng CJ, Nkabinde ADCJ,
Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J,
Mojapelo AJ and Pretorius
AJ concurring)
Introduction
[1] This is an application for leave to
appeal against a decision of Semenya AJ sitting in the Limpopo Local
Division of the High
Court, Thohoyandou (High Court) that the
applicant had no
locus standi
(standing) to bring the
application that the applicant had brought in that Court under case
no: 406/2016, that the matter was not
urgent and striking the matter
off the roll with costs.
Parties
[2] The applicant is a voluntary
association whose object is to promote human rights, ensure that
state entities and institutions
are held accountable for the use of
finances allocated to them in line with the Public Finance Management
Act
[1]
and ensure that state resources and institutions are effectively and
efficiently utilised for the benefit of communities.
It is a
non profit organisation. The applicant is based in, and,
operates from, the Limpopo Province. The first
respondent is
Vhembe District Municipality. The second respondent is the
Minister of Water Affairs and Forestry in Limpopo.
The third
respondent is Thulamela Municipality.
High Court
[3] The applicant brought an application
in the High Court against the three respondents for various orders.
It brought the
application for the benefit of the residents of
Malamulele B, Extension 1, in Limpopo. Those orders included:
-
an order declaring the first and third respondents’
failure to take reasonable steps to provide sanitation to the
residents
of Malamulele unlawful, inconsistent with the Constitution
and invalid;
-
an order compelling the first and/or second and/or third
respondent to take all reasonable steps to provide each affected
resident
with reasonable access to a toilet facility;
-
an order that the respondents provide toilet facilities to
residents who are unable to afford to install such facilities for
themselves;
and
-
an order declaring that the conduct of the respondents, to the
extent that it is inconsistent with sections 152
[2]
and 153
[3]
of the Constitution read with sections 4(2)(f)
[4]
and 73
[5]
of the Local Government: Municipal Systems Act
[6]
is invalid.
[4] In its founding affidavit in the
High Court the applicant made it clear that the rights that it
contended were being infringed
by the conduct of the respondents
included the right to human dignity of the residents of Malamulele
entrenched in section 10 of
the Constitution. Section 10
provides: “Everyone has inherent dignity and the right to have
their dignity respected
and protected”.
[5] The applicant brought its
application as an urgent application. The respondents opposed
the application and took the points
that the applicant had no
standing, the application was not urgent and there had been no
compliance with section 35 of the General
Law Amendment Act.
[7]
[6] In regard to standing, the
applicant’s case was, in part, that it was acting in the public
interest as contemplated in
section 38(d) of the Constitution.
In this regard the applicant referred to the fact that, by way of the
application, it
sought to enforce the rights of the residents of
Malamulele entrenched in the Bill of Rights including the right to
human dignity.
Section 38(d) of the Constitution reads:
“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—
. . .
(d)
anyone acting in the public interest; . . . .”
[7] The High Court held that the
applicant was not genuinely acting in the public interest and that,
therefore, it had no standing
derived from section 38(d) of the
Constitution. It came to this conclusion after quoting the
following passage from the judgment
of this Court in
Lawyers for
Human Rights
[8]
:
“The issue is
always whether a person or organisation acts genuinely in the public
interest. A distinction must however
be made between the
subjective position of the person or organisation claiming to act in
the public interest on the one hand, and,
whether it is, objectively
speaking, in the public interest for the particular proceedings to be
brought.”
[9]
[8] The High Court held that the
application was not urgent because the application could have been
brought much earlier.
In regard to non compliance with
section 35, the section precludes a court from issuing “any
rule
nisi
operating as an interim interdict” unless
certain conditions are met. The High Court held by implication
that there
had been non compliance with section 35. It
expressly held that there was no basis to condone that
non compliance.
The High Court then struck the application
off the roll with costs.
In this Court
Jurisdiction
[9] Some of the issues that the
applicant wishes to raise, if leave to appeal is granted, are
constitutional issues. They
include the question whether the
applicant had standing to bring the application it brought in the
High Court and whether the High
Court applied
Biowatch
[10]
in ordering the applicant to pay costs for the striking off the roll
of the matter. This Court has jurisdiction.
Leave to appeal
[10] The applicant seeks leave to appeal
against the High Court’s decisions that it had no standing to
bring the application
that it brought in that Court, that the matter
was not urgent, that the matter be struck off the roll and that the
applicant pay
costs. It is not in the interests of justice to
grant leave to appeal against the decision that the matter was not
urgent
and that it should be struck off the roll. However, it
is in the interests of justice to grant leave to appeal against the
decision that the applicant had no standing and that it pay the
respondents’ costs. In regard to the decision on
standing,
this is so because, although the applicant’s
application was struck off the roll and was not dismissed, the
applicant will
not be able to pursue the application if the decision
that it has no standing stands. The result is that the
cumulative effect
of the order striking the matter off the roll and
the decision that the applicant lacked standing is that it is the end
of the
litigation between the parties. There are reasonable
prospects of success for the applicant on both the issues of standing
and costs if it is granted leave to appeal.
The appeal
[11] Directions were issued inviting the
parties to deliver written submissions on whether the High Court was
correct in holding
that the applicant had no standing and in ordering
the applicant to pay costs. The parties delivered their written
submissions.
The second respondent conceded that the High Court
erred in its conclusion on standing and costs. The third
respondent supported
the High Court’s decision on
locus
standi
. This Court decides the matter without oral
argument.
[12] In support of its contention that
it did have standing, the applicant, inter alia, relied on section
38(d) of the Constitution.
It said that it instituted the
proceedings in the public interest. The High Court held that
the applicant was not genuinely
acting in the public interest.
It is clear from even the orders that the applicant sought in the
High Court that it was genuinely
acting in the public interest.
The High Court had no proper basis for its conclusion to the
contrary.
[13] In
Lawyers for Human Rights
this Court dealt with what needs to be shown in order to establish
whether a person or an entity is acting in the public interest.
[11]
In this regard, this Court quoted with approval a passage from
O’Regan J’s judgment in
Ferreira
[12]
where she said:
“This Court
will be circumspect in affording applicants standing by way of
section 7(4)(b)(v) and will require an applicant
to show that he
or she is genuinely acting in the public interest. Factors
relevant to determining whether a person is genuinely
acting in the
public interest will include considerations such as: whether 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
that those persons or groups
have had to present evidence and argument to the Court. These
factors will need to be considered
in the light of the facts and
circumstances of each case.”
[13]
The constitutional provisions that were
considered in
Ferreira
were those in the interim
Constitution. In
Lawyers for Human Rights
this Court
went on to point out that the standing provisions in the interim
Constitution and section 38 of the Constitution were,
for all
practical purposes, the same and the approach advocated by O’Regan
J is therefore equally applicable to section 38(d).
[14] The Court also said:
“The issue is
always whether a person or organisation acts genuinely in the public
interest. A distinction must however
be made between the
subjective position of the person or organisation claiming to act in
the public interest on the one hand, and
whether it is, objectively
speaking, in the public interest for the particular proceedings to be
brought. It is ordinarily
not in the public interest for
proceedings to be brought in the abstract. But this is not an
invariable principle.
There may be circumstances in which it
will be in the public interest to bring proceedings even if there is
no live case. The
factors set out by O’Regan J help to
determine this question. The list of relevant factors is not
closed. I would
add that the degree of vulnerability of the
people affected, the nature of the right said to be infringed, as
well as the consequences
of the infringement of the right are also
important considerations in the analysis.”
[14]
[15] If one has regard to the passages
quoted above and to the applicant’s affidavit in the High
Court, there can be no doubt
that the applicant had standing by
reason of section 38(d) of the Constitution. The High Court’s
conclusion that the
applicant did not genuinely act in the public
interest had no proper basis.
[16] The High Court held that there had
been no compliance with section 35 of the General Law Amendment Act.
Section 35 applies
to cases where a rule
nisi
operating as an
interim interdict is sought against the government and other
functionaries and institutions mentioned in that section.
In
this case the applicant was not seeking any such relief.
Therefore, section 35 was not applicable. The Court erred
in
holding that the applicant had to comply with section 35. The
result is that the only basis upon which the High Court
was justified
in striking the matter off the roll was that the matter was not
urgent.
[17] With regard to costs, the High
Court overlooked the approach to costs relevant to constitutional
litigation as set out in
Biowatch
. It simply adopted the
approach that costs follow the result. It should not have
awarded costs. In doing so,
it applied a wrong principle on
costs in constitutional litigation against the State. That the
court a quo decided
the issue of costs on a wrong principle
entitles this Court to interfere with the exercise of its discretion
on costs. Accordingly,
this Court should interfere with that
decision and set it aside. In this Court, the first respondent
must pay the applicant’s
costs as it unsuccessfully opposed the
application.
[18] In the result the following order
is made:
1.
Leave to appeal is granted only in respect of the costs order of the
High Court of
South Africa, Limpopo Local Division, Thohoyandou.
2.
Leave to appeal against the High Court’s decision that the
application was not
urgent is refused.
3.
The appeal is upheld.
4.
The costs order of the High Court is set aside and replaced with:
“There is no
order as to costs.”
5.
The first respondent is to pay the applicant’s costs in this
Court.
For the
Applicant:
Shadrack Tebeile
and Kevin Maluleke instructed by
Mampa Edwin Thupane Attorneys
For the First
Respondent:
R J Raath SC and M R Rantho instructed by
Tshiredo
Attorneys
For the Second
Respondent:
State Attorney
For the Third
Respondent:
Khathutshelo A Mainganye Attorneys
[1]
1 of 1999.
[2]
Section 152 relates to the “Objects of local government”.
It provides that:
“(1) The
objects of local government are—
(a) to
provide democratic and accountable government for local communities;
(b) to
ensure the provision of services to communities in a sustainable
manner;
(c) to
promote social and economic development;
(d) to
promote a safe and healthy environment; and
(e)
to encourage the involvement of communities and community
organisations
in the matters of local government.
(2) A
municipality must strive, within its financial and administrative
capacity, to achieve the objects set out in subsection (1).”
[3]
Section 153 relates to the “Developmental duties of
municipalities” and provides that:
“A
municipality must—
(a)
structure and manage its administration and budgeting and planning
processes to give priority to the basic needs of the community, and
to promote the social and economic development of the community;
and
(b)
participate in national and provincial development programmes.”
[4]
Section 4(2)(f) provides that:
“(2) The
council of a municipality, within the municipality’s financial
and administrative capacity and having regard to practical
considerations, has the duty to—
. . .
(f)
give members of the local community equitable access to
the
municipal services to which they are entitled; . . .”
[5]
Section 73 provides that:
“(1)
A municipality must give effect to the provisions of the
Constitution
and—
(a) give
priority to the basic needs of the local community
(b)
promote the development of the local community; and
(c)
ensure that all members of the local community have access to at
least the minimum level of basic municipal services.
(2)
Municipal services must—
(a) be
equitable and accessible;
(b) be
provided in a manner that is conducive to—
(i)
the prudent, economic, efficient and effective use of available
resources; and
(ii) the
improvement of standards of quality over time;
(c) be
financially sustainable;
(d) be
environmentally sustainable; and
(e) be
regularly reviewed with a view to upgrading, extension and
improvement.”
[6]
32 of 2000.
[7]
62 of 1955.
[8]
Lawyers for Human Rights v Minister of Home Affairs
[2004]
ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC).
[9]
Id at para 18.
[10]
Biowatch Trust v Registrar, Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
).
[11]
Lawyers for Human Rights
above n 8 at para 16.
[12]
Ferreira v Levin NO; Vryenhoek v Powell NO
[1995] ZACC 13;
1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC).
[13]
Id at para 234.
[14]
Lawyers for Human Rights
above n 8 at para 18.