- The Constitutional Court has upheld MEPF standing in the rezoning dispute, confirming that litigation rights can survive a property sale.
- The substitution order was ruled valid, allowing MEPF to continue the challenge initiated by the previous owner.
- The matter returns to the High Court for a hearing on the merits, with costs awarded to MEPF at all levels.
When Nicolway Shopping Centre, now Winifred Mandela Precinct, in Bryanston, was sold for R1.148 billion, the sale came with baggage: a pending court case over a rezoning decision that could allow a 10-storey development next door.
The seller had already taken the City of Johannesburg and Nordic Light Properties to court, arguing that the rezoning was unlawful. They claimed they hadn’t been properly notified, weren’t given a chance to object, and that the development would worsen traffic and hurt tenants.
The case was active when the Municipal Employees Pension Fund (MEPF) bought the property. The sale agreement made it clear that MEPF would take over the litigation. As the court noted, “the purchaser wishes to and will continue with the application in order to procure the relief sought.”
MEPF was formally substituted as the applicant. But Nordic pushed back, arguing that MEPF had no standing because it wasn’t the owner when the rezoning was approved. The High Court agreed, ruling that standing couldn’t be conferred retrospectively and that substitution didn’t fix the issue. The case was dismissed before the merits were even heard, leading to a constitutional challenge over MEPF standing in the rezoning dispute.
The court restores the right to be heard
The Constitutional Court disagreed. In a unanimous judgment, it overturned the High Court’s decision and confirmed MEPF standing in the rezoning dispute. Justice A Seegobin wrote that standing is “not a technical or strictly-defined concept” and that courts must apply “a measure of pragmatism.” The court emphasised that what matters is whether the party before the court has a real interest in the outcome, not whether they were present at the start.
The court found that MEPF had inherited both the property and the legal fight. “The substitution order did not create standing where none existed,” Seegobin explained. “Rather, it was transferred to the MEPF.”
The court also rejected the idea that standing must exist at the time of the original administrative decision. “Each case depends on its own facts,” the judgment stated. “There can be no general rule covering all cases.” MEPF, as the current owner, clearly has a stake. The rezoning still impacts traffic, tenants, and the commercial viability of the shopping centre. That interest is real, not hypothetical.
The court concluded, “It is declared that the applicant has the necessary locus standi to pursue the review proceedings.”
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