Case CCT 274/24
[2025] ZACC 23
Hearing Date: 19 November 2024
Judgement Date: 21 October 2025
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 21 October 2025, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Gauteng High Court, Johannesburg which dismissed the applicant’s application for a declaratory order, alternatively an application to review and set aside the decisions made by the City of Johannesburg to approve a rezoning application for Nordic Light Properties (Pty) Limited.
The applicant is the Municipal Employees Pension Fund (the Fund). The first respondent is the City of Johannesburg Metropolitan Municipality and the second respondent is the City’s Building Control Officer (collectively, the respondents). The third respondent is Nordic Light Properties (Pty) Limited (Nordic).
At the time when the Fund instituted the application in the High Court, it had purchased a ‘letting enterprise’ from Erf 82 Bryanston (Pty) Limited (Erf 82). This consisted of various portions of land, including the Nicolway Bryanston Shopping Centre (the mall). When the sale agreement of the letting enterprise was concluded between the Fund and Erf 82 on 26 August 2021, Erf 82 had instituted a review application to set aside the decision of the respondents to approve Nordic’s rezoning application relating to land adjacent to the mall (the review application). In the review application Erf 82 contended, among others, that it had not been given proper notice of Nordic’s rezoning application, nor had it been notified of the respondents’ decision to approve the rezoning applications required by the City’s Municipal Planning By-law, 2016. The nub of Erf 82’s contention was that the audi alteram partem principle had not been complied with and as a result, it was deprived of its right to object and participate in the administrative process that led to the approval of Nordic’s rezoning application, notwithstanding that the rezoning would directly impact the rights of Erf 82 as well as the tenants and visitors to the mall. Erf 82 also contended that the rezoning, which includes the construction of a ten-storey building with various commercial and residential land use rights, would likely cause an increase in traffic congestion to and around the mall, thus negatively impacting the mall and the interests of other owners of surrounding properties who are holders of servitudes registered over the land likely to be affected by the increase in traffic congestion.
Subsequent to the hearing of the review application, the Fund and Erf 82 concluded a written addendum to the sale agreement on 6 December 2021. The effect of the addendum was that Erf 82 would be substituted by the Fund in the review application and continue with the litigation in those proceedings, subject to an order of court confirming the substitution and transfer of Erf 82’s obligations, rights, and interests in the review application. On 18 March 2022 the Fund launched an application seeking an order giving effect to the addendum. The application was unopposed and on 17 May 2022 Sutherland DJP granted an order giving effect to the substitution of Erf 82 with the Fund in the review application.
The review application was heard on 17 October 2022 with the Fund as the applicant. During the hearing the respondents argued their point in limine which was that the Fund did not have standing to pursue the review application despite the order substituting Erf 82 with the Fund. In response, the Fund argued that as a consequence of the agreement to acquire the letting enterprise and the order of Sutherland DJP, it was entitled to continue with the review application and to also rely on the same grounds of review and the relief sought by Erf 82. The Fund also argued that once substitution was given effect to by a court order, standing ceased to be an issue and that since the application for substitution was unopposed by the respondent it impermissible for them to raise standing in limine as a defence.
The High Court held that it was trite that a point in law challenging a party’s standing may be raised by a party at any stage of the proceedings provided that it is supported by facts as they are averred on the papers and subject to the point being raised not resulting in prejudice or unfairness to the other party. The court took the view that insofar as the respondents are concerned, Erf 82 was the applicant in the review application with ownership of the letting enterprise. The court agreed with the respondents and held that at the commencement of the review application proceedings, the Fund was not the owner of the mall and as such, its interests could not have been adversely affected by the respondent’s decision in approving the rezoning application. The court also took the view that where an affected person sought to challenge the approval of a rezoning application in terms of PAJA, that person still needed to prove that he or she had standing at the time when the administrative action was taken. Accordingly, the respondents succeeded with their point in limine and the court dismissed the review application on the ground that the Fund lacked standing despite the order of substitution.
Before this Court, the applicant sought an order against the judgment and order of the High Court. The applicant submitted that the question before this Court, among others, is whether the purchaser of immovable property has standing in litigation proceedings instituted by the seller, prior to the sale, in its own name related to and arising from the seller’s ownership of the property after the registration and transfer of that property, where by agreement or by court order, the seller is substituted by the purchaser. The applicant submitted in this regard that, it acquired standing in the review application when it purchased the letting enterprise and Erf 82 agreed to transfer its rights subject to an order substituting Erf 82 with the applicant, which in this instance was granted on 17 May 2022. The applicant further submitted that Erf 82’s interest in the result of the review application were transferred pursuant to Sutherland DJP’s order.
The respondents submitted that they did not oppose the substitution application because they were of the view that on the facts, it did not give rise to standing of the applicant nor were there any viable defence to that application once it was clear that the applicant acquired ownership of the letting enterprise. The respondents further submitted that the applicant cannot be regarded as an “own-interest applicant” because the applicant has failed to demonstrate why it was in the interest of justice for the High Court to consider the merits of the review application and not merely dispose of it on the issue of standing alone.
Nordic submitted that an objector as envisaged by the By-Laws is the only person entitled to challenge the decision of the city approving a rezoning application. It argued that persons who do not object, comment or make representations when called on to do so, forfeit their right to be heard and to participate in an appeal. It further submitted that the applicant was not in a position to challenge the respondent’s decision on the grounds of PAJA because its rights at the time of the decision had not been affected as it had no interest at that stage. Nordic is of the view that in order to establish standing to challenge an administrative action in terms of PAJA, an applicant must show that the impugned action was taken in circumstances where its right to administrative action has been infringed and that the action has affected its rights.
In a unanimous judgment written by Seegobin AJ (with Madlanga ADCJ, Kollapen J, Mathopo J, Mhlantla J, Rogers J, Theron J, Tolmay AJ and Tshiqi J concurring), the Court found that the applicant has the necessary locus standi to pursue the review proceedings instated by Erf 82.
The Court held that upon acquiring ownership of the property, the Fund stood to be negatively impacted in the very same way that Erf 82 would have been impacted as a result of the administrative decision to approve the rezoning application. For this reason, there was no basis to find that the Fund does not have the requisite locus standi and the right, on becoming the owner of the property, to continue prosecuting the review proceedings commenced by Erf 82.
The review application is remitted to the High Court for the determination of the merits. The respondents are jointly and severally liable for the applicant’s costs of the application for leave to appeal brought in the High Court and Supreme Court of Appeal as well as the applicant’s costs in this Court.
The Full judgment here