- Constitution of the Republic of South Africa Act 108 of 1996 (‘the Constitution’).
- See S v Makwanyane 1995 (3) SA 391 (CC) para 262; Soobramoney v Minister of Health, Kwazulu Natal 1998 (1) SA 765 (CC) para 8; Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 1; Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government v Ngxuza 2001 (2) SA 609 (E) para 12.
- See the decision of the Supreme Court of India in SP Gupta v President of India AIR 1982 SCC 149.
- See Bamford v Minister of Community Development and State Auxiliary Services 1981 (3) SA 1054 (C).
- Patz v Greene & Co 1907 TS 427, 433.
- 1910 TS 372, 380–1.
- Ibid 380.
- Roodepoort-Maraisburg Town Council v Eastern Properties (Pty) Ltd 1933 AD 87, 96.
- In Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A) 321 the appellants' locus standi was challenged on the basis that the statute on which it based its claim did not apply to people who were not trademark owners. The court held that, in accordance with the Merchandise Act 17 of 1941, a manufacturer or merchant also had locus standi and that the Act was enacted for the protection of the general public.
- 1975 (2) SA 294 (A).
- WLD 16736/86 (judgment of 9 September 1986, unreported) as discussed by C Loots ‘Keeping Locus Standi in Chains’ (1987) 3 SAJHR 66–76.
- See the paragraph quoted in Loots (note 11 above) 69.
- 1990 (1) SA 617 (SWA).
- Ibid 627B–E.
- 1983 (4) SA 855(C). See also Electrical Contractors Association (SA) v Building Industries Federation (SA) 1980 (2) SA 516 (T) 520E-F; PE Bosman Transport Works Committee & Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 801 (T) 805C; National Union of Furniture & Allied Workers of SA v Paper, Wood and Allied Workers Union 1984 (5) ILJ 161 (W) 162C.
- 1955 (1) SA 85 (T).
- Ibid 90.
- 1962 (4) SA 273 (N).
- Ibid 276.
- 1992 (4) SA 434 (Ck).
- See Smith v AG Ontario (1924) DLR (3d) 189. See also PW Hogg Constitutional Law of Canada (rev ed 2000) 56.3–56.10.
- (1974) 43 DLR (3d) 1.
- RSC 1970, c O-2 (Can).
- (1975) 55 DLR (3d) 362.
- (1982) 130 DLR (3d) 588.
- Ibid 606.
- (1986) 146 DLR (3d) 704.
- Ibid 712.
- But see Canadian Council of Churches v The Queen (1992) 88 DLR (4th) 193, 204 where Cory J stated that ‘[t]he whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The grantjng of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant…. [U]ndeserving applications may be refused…. [But] when exercising the discretion [to grant or refuse standing] the applicable principles should be interpreted in a liberal and generous manner’. It should be noted that this case effectively reversed the gains that were made in the law of standing in the previous cases. The court complained that ‘it would be disastrous if the courts were allowed to become helplessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well meaning organisations’. The court refused standing on the grounds that the plaintiff lacked private interest in the matter and preferred that the matter be privately litigated. This decision is criticised by JM Ross ‘Standing in Charter Declaratory Actions’ (1995) 33 Osgoode Hall LJ 151, 164.
- [1976] 1 WLR 550, 559.
- Ibid 559. Lord Denning was rephrasing his own remarks in the earlier Attorney General ex rel McWhirter v Independent Broadcasting Authority [1973] QB 629, 648–49. For a detailed discussion on the limitations of the rule that only the Attorney General can sue for public remedies, see the judgment of Lord Wilberforce in Gouriet v Union of Post Office Workers [1978] AC 435 (HL), especially 472.
- Arsenal Football Club v Smith [1977] 2 All ER 267, 272.
- See R v Guardians of Lewisham Union [1897] 1 QB 498, 500 where Wright J held that an applicant must ‘first of all show that he has a legal specific right to ask for the interference of the court’.
- Ordinance 53 r 3(5) of the Rules of the Supreme Court (UK). See also s 31(3) of Supreme Court Act 1981 (UK).
- [1982] AC 617.
- Ibid 644E–G.
- [1985] 1 All ER 589.
- [1995] WLR 386. See also R v Monopolies and Mergers Commission, Ex Parte Argyll Group Plc [1986] 1 WLR 763, 773 where the judge said: ‘The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody’.
- Law Commission for England and Wales Administrative Law: Judicial Review and Statutory Appeals (LAW COM No 226) HMSO London (1994) para 5.16.
- SK Agrawala ‘The Legal Philosophy of PN Bhagwati’ (1987) 14 Indian Bar Rev 136 cited by J Cassels ‘Judicial Activism and Public Interest Litigation in India: Attempting the Impossible’ (1989) 37 American J of Comp L 495, 502. See also A Gabriel ‘Socio-Economic Rights in the Bill of Rights: Comparative Lessons from India’ (1998) 6 Human Rights & Constitutional LJ of Southern Africa 8.
- Note 3 above.
- Ibid 189.
- Olga Tellis v Bombay Municipal Corporation 1985 (3) SCC 545.
- Note 3 above 189. In Fertilizer Corporation Kamgar Union, Sindri v Union of India (1981) ISC 568, 586 the judge stated the need for the recognition of a wider standing which still suffered from ‘the pathology of mid-Victorian concepts about causes of action’. See also Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161 where the court held that even a telegram sent to the court was sufficient and there was no need to convert it into a writ before the court could accept it as a basis for its intervention. In Mukesh Advani v State of Madhya Pradesh AIR (1985) SC 1368 it was held that a newspaper cutting was sufficient to initiate proceedings in a court of law. In this case the court was motivated by the fact that the purpose of the petition was to free bonded labourers working in quarries in Madhya Pradesh.
- S Meer ‘Litigating Fundamental Rights: Rights and Social Action Litigation in India: A Lesson for South Africa’ (1993) 9 SAJHR 358, 360. Bhagwati further states that public interest litigation in India was ‘primarily judge-led and even to some extent judge-induced; the product of juristic and individual activism of our Supreme Court’. PN Bhagwati ‘Judicial Activism and Public Interest Litigation’ (1985) Columbia J of Transnational L 561.
- 1986 (4) SCC 106.
- Pandey v State of West Bengal [1988] LRC (Const) 241 (SC). See also generally Cassels (note 40 above).
- This sub-section provided:
- ‘(a) When an infringement of or threat to any right entrenched in this Chapter is alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent court of law for appropriate relief, which may include a declaration of rights, (b) The relief referred to in paragraph (a) may be sought by —
- a person acting in his or her own interest;
- an association acting in the interests of its members;
- a person acting on behalf of another person who is not in a position to seek for such relief in his or her own name;
- a person acting as a member of or in the interest of a group or class of persons; or
- a person acting in the public interest’.
- See C Loots ‘Standing to Enforce Fundamental Rights’ (1994) 9 SAJHR 49, 51–52.
- 1996 (1) SA 984 (CC) para 165.
- 1996 (3) SA 1095 (Tk) 1105.
- See Maluleke v MEC, Health and Welfare, Northern Province 1999 (4) SA 367 (T) 373I–J.
- See the comments of Mahomed CJ in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Council 1998 (2) SA 1115 (SCA) 1122H-23A.
- 1999 (2) SA 850 (Tk). See also Port Elizabeth Municipality v Prut 1996 (4) SA 318 (E) where the court held that the municipality had sufficient interest to bring the matter to court acting both in its own and the public interest. The judge further held that the court should be slow to refuse standing where there ‘is a pressing public interest that the decision be given soon’.
- See Van Huysteen NO v Minister of Environmental Affairs and Tourism 1996 (1) SA 283 (C).
- Note 10 above.
- Note 13 above.
- See J De Waal, I Curtie & G Erasmus The Bill of Rights Handbook (4 ed 2001) 88. Although there is no reported case in support of this particular proposition, it would seem that the authors are correct in their suggestion. Had there been no such requirement, the consequences would be that anyone could initiate proceedings claiming to act on behalf of people who in actual fact have no interest in such proceedings and would refused to be involved even if given a chance. This, it is argued, could not have been intended by the drafters of s 38(b). Froneman J in Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government (note 2 above) rejected a proposition by the respondents that some of the represented people were not named. He went on to hold that the applicants had standing to sue in terms of s 38(b). This case is discussed in more detail in (iii) below.
- 1997 (8) BCLR 1066 (T) 1076.
- 1996 (3) SA 467 (W) 474. See also Lifestyle Amusement Centre v Minister of Justice 1995 (1) BCLR 104 (C).
- Ibid 474G-I. See also Ferreira v Levin (note 50 above) para 165.
- Note 52 above.
- See the interesting critique of this judgment by C Plasket ‘Standing, Welfare Rights and Administrative Justice: Maluleke v MEC, Health and Welfare, Northern Province’ (2000) 117 SALJ 647.
- Note 2 above. See also the interesting decision of the Indian Supreme Court in Kadra Pahadiya v State of Bihar (1983) 2 SCC 104.
- Ngxuza (note 2 above) 1326F–G.
- Ibid 1333A-B. See also Re Singh and Minister of Employment and Immigration (1995) 17 DLR (4th) 422 where the Supreme Court of Canada held that administrative difficulties do not exempt state organs from the duty to act fairly and lawfully when making and implementing decisions.
- Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza 2001 (4) SA 1184 (SCA).
- Ibid para 16. Contrast Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) paras 15–6, where the Constitutional Court refused to comment on the ‘outer reaches’ of s 38(c). In a joint judgment by Yacoob J and Madlanga AJ (concurred in by all other members of the court), the court raised several questions in connection with s 38(c): (a) whether a person bringing an action in terms of the subsection requires a mandate from other members of the class; (b) what should the common thread or factor in the ‘class’ be; (c) what entitles someone who is not a member of the class to act on behalf of the class ie how should that person be ‘connected’ to the class. The court stated that because there was no argument on s 38(c), it was in the interests of justice that these questions be left open.
- See De Waal, Currie & Erasmus (note 58 above) 89–90
- Ferreira v Levin (note 50 above) para 233. See also, generally, Ngxuza (note 67 above).
- Ferreira v Levin (note 50 above) para 234. Compare the considerations in English law in S De Smith et al Judicial Review of Administrative Action (5 ed 1995) 123 (in public interest cases courts will consider ‘…the importance of the legal point; the chances of the issue being raised in any other proceedings; the allocation of scarce judicial resources; and the concern that in the determination of issues the courts should have the benefit of the conflicting points of view of those most directly affected by them’).
- Note 54 above 324F-326B. See also Prior v Battle (note 54 above), Maluleke (note 52 above). In Ngxuza (note 2 above), the court a quo granted applicants an option to choose whether they wanted to proceed in terms of s 38(c) or (d). The applicants chose to proceed in terms of s 38(c).
- Port Elizabeth Municipality v Prut (note 54 above) 3251.
- See the cases cited in note 15 above.
- See United Parties v Minister of Justice, Legal and Parliamentary Affairs 1998 (2) BCLR 224 (ZS); Transvaal Agricultural Union v Minister of Land Affairs 1997 (2) SA 621 (CC); Nasionale Party in die Oos-Kaap v Port Elizabeth Oorgangsraad 1998 (2) BCLR 141 (SE).
- SA Law Commission The Recognition of Class Actions and Public Interest Actions in South African Law (August 1998). The full text of the report is available at http://www.law.wits.ac.za/salc/discussn/html.
- Ibid 6.
- Clause 3 of the Draft Bill.
- Clause 5.
- Clause 8(2)(a) states that the court may consider whether or not notice shall be given. The court will determine the question of whether notice should be given to all or some members of the class. Compare Rule 23 of the Federal Rules of Civil Procedure (US).
- See E Hunter ‘The Draft Legislation Concerning Public Interest Actions and Class Actions: The Answer to All Class Ills?’ (1997) 30 CILSA 304. See also Eisen v Carlisle & Jacquelin 417 US 156 (1974) 169.
- In the Eisen case (note 81 above) the judge ordered that notice be given to about 2 million people. As a result the case virtually collapsed because it was impractical to comply with the order. In Mullane v Central Hanover Bank & Trust Company 339 US 306 (1950) 314 the court required that ‘notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections’. See also W de Vos ‘Reflections on the Introduction of a Class Action in South Africa’ (1996) TSAR 639.
- Note 50 above.
- Note 68 above para 15.
- Note 67 above.
South African Journal on Human Rights
Volume 18, 2002 - Issue 4