---

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No. A71/2020

In the appeal of:

COMMTECH COMPREHENSIVE SCHOOL AND SCHOOL GOVERNING BODY	1st Appellant
and
MEMBER OF EXECUTIVE COUNCIL FOR THE DEPARTMENT OF EDUCATION, FREE STATE PROVINCE	2nd Appellant
MUCPP COMMUNITY WORKING GROUP OF MANGAUNG TOWNSHIP	Respondent

 

CORAM: MUSI JP, DAFFUE J et CHESIWE J

HEARD ON: 26 OCTOBER 2020

JUDGMENT BY: DAFFUE J

DELIVERED ON: 5 NOVEMBER 2020

 

I         INTRODUCTION

 

[1] During 1994 a laudable project was initiated in partnership by the University of the Free State, the Department of Health and the Mangaung community. The MUCPP Trust, registration number TMP4358 (“the Trust”) was established and registered with the Master of the High Court.  The objectives of the Trust were set out in clause 5 of the Trust Deed.   The principal object was the establishment of a primary health care service for the community of Mangaung.  Several other ancillary objectives were identified in clause 5.  It is common cause that the necessary facilities were erected on erf 50792, Mangaung (referred to as “the MUCPP property”, but registered in the name of the Free State Province), which property is situated adjacent to the school premises of the 1^st appellant.  The Kellog Foundation, an international donor, contributed extensively towards the goals of the Trust when it was still functioning.

[2] Unfortunately a lack of co-operation seriously hampered the proper functioning of the Trust and as a consequence much turmoil was created.  The trustees of the Trust resigned years ago and the Trust was terminated before the dispute mentioned herein after was adjudicated by the court a quo.

[3] On 10 September 2018 respondent as applicant issued an application under case no 4586/2018, alleging inter alia that it and its members were assaulted and evicted from the MUCPP premises a year earlier, to wit on 13 September 2017. Some of the nine respondents cited, including the 1^st and 5^th respondents - the two appellants before us - took a point in limine, alleging that the applicant in the court a quo did not have locus standi in the proceedings.  The court a quo adjudicated this issue only and found in favour of the applicant.

[4] An application for leave to appeal was dismissed, but the Supreme Court of Appeal granted leave to appellants to appeal to the full court.

 

II        THE PARTIES

[5] 1^st Appellant is the school governing body of Commtech Comprehensive School, a public school with juristic personality in terms of the South African Schools Act, 84 of 1996.

[6] 2^nd Appellant is the Member of the Executive Council for the Department of Education, Free State.

[7] Respondent is the Mangaung Community Working Group of Mangaung Township (also referred to as “MUCPP Community Working Group”) as it elected to refer to it in its application papers.

[8] As mentioned, 1^st and 2^nd appellants were respectively cited as 1^st and 5^th respondents in application 4586/2018 instituted by respondent as applicant.  The MEC for the Department of Health, Free State Province, cited as 4^th respondent, also opposed the application in the court a quo and reconciled himself with the aforesaid opposition.  Mr Chakela, the Acting Director:  Legal Services of the Department of Education deposed to an affidavit on behalf of the two appellants.  The University of the Free State and Mr Ramahlele of that University, cited as 2^nd and 3^rd respondents respectively in the court a quo, also filed an affidavit in support of the opposition of the application.  They also relied on the lack of locus standi of the present respondent.  Neither they, nor any of the other respondents in the court a quo feature in this appeal.  

 

III       THE ORDERS OF THE COURT A QUO

[9] Respondent sought several orders in its amended notice of motion, inter alia that 1^st appellant be directed to return control, possession and occupation of the MUCPP property to respondent, that 1^st appellant be interdicted from engaging in activities such as the use of force to evict respondent from the aforesaid premises, assaulting respondent and its members and preventing them access, possession, control and occupation of the premises.  Insofar as appellants and others raised the point that respondent did not have locus standi, the court a quo decided to firstly adjudicate the locus standi issue.  Consequently, the legal representatives were instructed to address the court a quo on that issue only.  After hearing argument, a written judgment was prepared and the following orders were ultimately granted:

“1. The applicant has the necessary locus standi in the proceedings.

2. The application may be enrolled again for further hearing.

3. Costs of the proceedings relating to locus standi, to be costs in the cause.”        

 

IV      THE GROUNDS OF APPEAL

[10] Appellants challenge the court a quo’s judgment on the following grounds:

10.1 It erred in finding that the respondent had locus standi in the proceedings.

10.2 The court a quo’s determination is at odds with its findings that (a) respondent is not a juristic person, but a functionary of the MUCPP Trust, (b) the Trust did not authorise respondent to institute the proceedings on its behalf, (c) the respondent as a working group of the Trust owes its existence to the Trust and functions under the auspices of the Trust, (d) it had no locus standi to move for the relief set out in the amended notice of motion and (e) finally, respondent could not claim locus standi on the basis of a group or a class action in the absence of certification by a court. 

10.3 It is also alleged that the court a quo erred in not following the judgment of this division in Van Heerden and Another v Mangaung Metropolitan Municpality and Others (707/2015) [2015] ZAFSHC 116 (5 June 2015).

 

V       INCOMPLETE APPEAL RECORD

[11] The appeal record was incomplete insofar as the replying affidavit of the respondent in the court a quo did not form part of the record.  Mr Merabe, appearing for appellants, sought leave by agreement to hand in copies of the replying affidavit and confirmed that the parties were ad idem that the allegations contained therein are common cause.  The replying affidavit was accepted.

 

VI      RELEVANT TERMS OF THE TRUST DEED

[12] It is apposite to mention certain definitions and clauses contained in the Trust Deed. “The beneficiary community” is defined as “primarily all persons resident within the area of operation,” which area was defined as “the geographical area generally known as Mangaung and its immediate surroundings.”  “The Community Working Group” is defined as “the group of members of the beneficiary community who take part in the activities of the Trust and which group is co-ordinated by the Trust.”  Clause 6 provided for the appointment of a Board of Trustees consisting of sixteen trustees, of which five were to be University personnel, three Health Service members and eight community members. In clause 9.7 three working groups were identified of which the Community Working Group was one.  These working groups were supposed to liaise closely with the Management Committee of the Trust consisting of the persons identified in clause 9.1 of the Trust Deed.  Six representatives of the beneficial community had to be appointed to the Management Committee of whom at least one were to be a member of the Community Working Group.  The usual powers of trustees of a trust are contained in clause 10.  Sub-clause 10.10 provides that the trustees may “compel the fulfilment of obligations in its favour and to defend any proceedings that may be instituted against the Trust.”

 

VII     EVALUATION OF THE COURT A QUO’S JUDGMENT AND THE PARTIES’ SUBMISSIONS

[13] Section 38 of the Constitution^[1] reads as follows:

“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—

(a) anyone acting in their own interest;

(b) anyone acting on behalf of another person who cannot act in their own name;

(c) anyone acting as a member of, or in the interest of, a group or class of persons;

(d) anyone acting in the public interest; and

(e) an association acting in the interest of its members.”

The Constitutional Court confirmed in Independent Electoral Commission v Langeberg Municipality^[2] that ss 38(b)–(e) deal with the capacity of persons to bring challenges under the Bill of Rights in a representative capacity and that these provisions go beyond the common law rules of standing.  That court also held in Tulip Diamonds FZE v Minister of Justice^[3] that s 38 is a deliberate and radical departure from the common law and that constitutional standing is broader than traditional common law standing.

[14] Having considered s 38, the court a quo held that ss 38(c) was the only possible applicable sub-section, i.e. “because the deponent is acting on behalf of a group of persons, as the name of the applicant in the amended Notice of Motion clearly indicates.”  It accepted that in such a case the proceedings could be defined as a group or class action, but the party seeking to represent the class or group had to apply to court for certification which the deponent failed to do.^[4]

[15] Once the court a quo considered the various bases upon which entities and/or persons may have locus standi and after having found that none of the usual criteria fitted into the present matter, it held as follows^[5]:

“There is, however, another basis on which the Applicant may have shown locus standi, and that is the basis provided by the Mandament van Spolie.  Since legal standing also involves questions of substance, as we have seen, this issue calls for further consideration.  By means of the Mandament, physical possession is protected and the relief in terms thereof arises solely from deprivation of possession, otherwise than through legal procedure.  All that a Plaintiff has to allege and prove, is that he was in peaceful and undisturbed possession of the property.”

[16] The court a quo continued to state^[6] that “Applicant is a group of community members, representing the community of Mangaung Township,  who claim that they, were in undisturbed possession of the premises, and that they have been unlawfully deprived of that possession by the First Respondent.  The relief they claim, is undeniably based on the Mandament.  For this reason only, they have shown locus standi in the matter.” 

[17] Mr Merabe submitted that the effect of the court a quo’s order is to bestow legal standing on a party described as a group of community members whilst the court a quo had already found earlier in the judgment that the group was not a juristic person.  He submitted that those community members on whose behalf the respondent was apparently acting, and who alleged that they were dispossessed of the property and/or assaulted, should have been the ones launching the application.  However, those community members were not before the court. 

[18] Mr Merabe submitted that respondent failed to show that it was a rights-bearing entity having the capacity to institute proceedings to protect such rights.  He relied in essence on four judgments that will be briefly dealt with.  The first is Tulip Diamonds mentioned above.^[7]  Tulip Diamonds is a company incorporated and registered in the United Arab Emirates who sought to review decisions by South African authorities because these were alleged to be unfair, improper, unlawful and in contravention of s 7 of the International Co-operation in Criminal Matters Act.^[8]  The majority in Tulip Diamonds held^[9] that the company failed to prove that its interests or potential interests were directly affected by the alleged unlawfulness of the actions taken by the respondents.  In order to succeed it had to “establish both components of own-interest standing:  interest and direct effect.”  The court held that^[10] insofar as the company did not establish standing under s 38 of the Constitution, it also failed to prove standing within the more restrictive parameters of the common law.  Although the court held that, absent standing, a litigant is not entitled to have the merits of the application heard by the court, it decided to do so on the assumption that there might be an indication of fraud or other gross irregularity in the conduct of a public body.

[19] In Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others,^[11] Giant Concerts CC, a registered close corporation challenged the lawfulness of a contract under which a municipality sold land to the 1^st respondent.  The court quoted the following viewpoint of Hoexter with approval:^[12]

“The issue of standing is divorced from the substance of the case.”

The court continued as follows:^[13] 

“[33] The separation of the merits from the question of standing has two implications for the own-interest litigant.  First, it signals that the nature of the interest that confers standing on the own-interest litigant is insulated from the merits of the challenge he or she seeks to bring…

[34] Second, it means that an own-interest litigant may be denied standing even though the result could be that an unlawful decision stands.  This is not illogical……” 

Again, as was the case in Tulip Diamonds, the court decided to consider the merits notwithstanding its own finding.  After having read hundreds of pages of documents it concluded:^[14]

“55. The inference that Giant was merely toying with process, or seeking to thwart a propitious public development because it had been made available to someone else, is therefore one the Court is entitled to draw. The consequence is that Giant lacks standing, since its interest remains incipient and has never become direct or substantial.

56. Giant’s mere participation in the notice and comment process by lodging an objection did not confer standing on it to challenge the transaction….” 

[20] In Sandton Civic Precinct (Pty) Ltd v City of Johannesburg and Another^[15] one member of a consortium to whom development rights had been granted, approached the court for relief.  It was common cause that the municipality resolved to alienate property to the consortium in order to develop the land.  The consortium no longer existed at the time the member thereof approached the court. The court found that such member, a registered company, did not have locus standi.  In that instance the court accepted that locus standi is in a sense procedural, but it may also bear on substance. Considering substance, it found that the applicant had to establish a “legal linage between itself and the rights-acquiring entity the resolution mentions,” which it failed to do.^[16]

[21] In Van Heerden and Another v Mangaung Metropolitan Municipality and Others,^[17] also relied upon by Mr Merabe,  Mr Van Heerden, who deposed to the founding affidavit, was cited as 1^st applicant and a group of community members described as Botshabelo H2 community was cited as 2^nd applicant.  They sought relief based on the mandament van spolie.  I held that Van Heerden could not act on behalf of an entity which did not have capacity to sue or be sued.  This entity did not have a constitution and was not regulated by any regulation or by-law.  The group of people could also not be regarded as a voluntary association with the necessary locus standi.  I held that all the persons allegedly affected had to be cited as parties in the litigation in their individual names to require legal standing.  The court a quo referred to this judgment when it refused leave to appeal, but did not hold that it was incorrectly decided.

[22] In Areva NP Incorporated in France v Eskom Holdings SOC Ltd & another^[18] the Constitutional Court held that insofar as the company, WEBSA, had not submitted the final offer in a tender process on its own behalf, but on behalf of another company in the same group, it did not have locus standi in the review proceedings that followed.

[23] There is no cross-appeal against the court a quo’s findings that respondent could not rely on s 38 of the Constitution.  Mr Ponoane’s argument centred on the application of the principles applicable to the mandament van spolie.  The case law pertaining to mandament van spolie is clear.  Two requirements have to be proven by an applicant to be successful: (a) that he/she/it was in peaceful and undisturbed possession of the property and (b) he/she/it was illegally deprived of such possession.  The Constitutional Court considered the remedy quite recently in Ngqukumba v Minister of Safety and Security and Others^[19] and said:

“The essence of the mandament van spolie is the restoration before all else of unlawfully deprived possession to the possessor. It finds expression in the maxim spoliatus ante omnia restituendus est (the despoiled person must be restored to possession before all else).  The spoliation order is meant to prevent the taking of possession otherwise than in accordance with the law.  Its underlying philosophy is that no one should resort to self-help to obtain or regain possession. The main purpose of the mandament van spolie is to preserve public order by restraining persons from taking the law into their own hands and by inducing them to follow due process.”  (Emphasis added).

[24] Mr Ponoane incorrectly referred to a judgment of Goosen J in Moosa v Ramsugit and others, a judgment in an application for leave to appeal.  He clearly intended to refer to Goosen J’s judgment in the main application delivered on 3 January 2020 under reference number (76/2020) [ZAECPEHC] 3.  Neither judgment supports the respondent’s case. 

[25] Mr Ponoane also relied on Tswelopele Non-profit Organization v City of Tshwane Metropolitan Municipality.^[20]  Tswelopele, duly registered as a non-profit organization committed to the upliftment of homeless and destitute people in the Moreletta Park area, brought an application as 1^st applicant against the Tshwane Municipality and others.  Tswelopele did not act as the only applicant as twenty-three named residents joined the proceedings as applicants.  In that case the municipality ejected a number of people from their homes and went so far to destroy their dwellings.  In a landmark decision the court granted relief and instructed respondents to rebuild the demolished dwellings.  Clearly, that matter is distinguishable from the facts in casu.  The affected parties were before the court and duly identified in Tswelopele.

[26] The important questions to be asked is who, according to respondent’s deponent, was in possession of the MUCPP property and who was actually deprived of such possession?  It is not necessary to make any finding as to who was responsible for the alleged actions complained of, save to state that no evidence was adduced that 1^st appellant or its employees, acting in the course and within the scope of their employment, assaulted and/or evicted anyone from the MUCPP property.  The alleged victims have not been identified.  The respondent had no locus standi, either in terms of the common law, or s 38(a), or any of the other sub-sections to institute the application.  It could not do so as an own-interest litigant, or on behalf of others.

[27] I have considered the submissions of Mr Ponoane pertaining to s 34 of the Constitution, providing that everyone has the right to have his or her dispute resolved in a court of law.  In casu he relied on the fact that the respondents “were assaulted and unlawfully evicted by the 1^st Appellant on the premises they were occupying since 2012.”  Clearly Mr Ponoane was referring to unidentified individuals and not the entity that brought the application.  Those individuals who were affected are not before the court and if they still want to institute action, their right to have their dispute resolved by a court of law is not taken away by the judgment of this court.  It is evident from the papers that respondent’s deponent, Mr Khethelo, and the Trust had an extended acrimonious history.  If he believed that he and his colleagues were in possession of the MUCPP property, they should have brought the application in their own names.

 

VIII    CONCLUSION

[28] In conclusion, the individuals allegedly affected by being assaulted and ejected from the MUCPP property should have brought the application instead of an entity that has no locus standi.  The finding of the court a quo that “a group of community members, representing the community of Mangaung Township, who claim that they were in undisturbed possession of the premises and that they have been unlawfully deprived of that possession” and that they are entitled to relief in terms of the mandament van spolie, is with respect incorrect.  The same applies to the following conclusion: “For this reason only, they have shown locus standi in the matter.”  The applicant is a single entity while the court a quo referred in the plural to community members of the Mangaung Township. 

[29] If the appeal is upheld with costs, the question to be asked is who would have to pay the bill?  The answer is obvious:  it would be impossible to obtain any satisfaction.  In light hereof Mr Merabe submitted that he would not ask for costs as such an order would be impractical and worthless. 

[30] The appeal stands to be upheld.

 

IX      THE ORDER

[31] Consequently, the following order is issued:

1. The appeal is upheld, with no order as to costs.

2. The order of the court a quo is set aside and substituted with the following:

“The applicant does not have locus standi in the proceedings.”

 

 

__________________

J P DAFFUE J

 

I concur

 

__________________

C J MUSI JP

 

I concur

 

__________________

 S CHESIWE J

 

 

On behalf of Appellants: Adv MJ Merabe

Instructed by: State Attorney

BLOEMFONTEIN

On behalf of Respondent: Mr MJ Ponoane

Instructed by: Ponoane Attorneys

BLOEMFONTEIN

                                               

---