The Campus Law Clinic (University of KwaZulu-Natal Durban) v Standard Bank of South Africa Ltd and Minister for Justice and Constitutional Development

The Campus Law Clinic, a voluntary association providing legal aid to indigent persons, sought leave to appeal against a Supreme Court of Appeal (SCA) judgment in Standard Bank of South Africa Ltd v Saunderson and Others, despite not being a party to those proceedings. The underlying litigation involved Standard Bank's attempts to execute against mortgaged properties of nine defendants in default on home loan repayments. Following the Constitutional Court's decision in Jaftha v Schoeman (which required judicial oversight for execution against immovable property in magistrates' courts), the Deputy Judge President of the Cape High Court instructed that registrars may not grant orders declaring immovable property specially executable. The Cape High Court appointed amici curiae and granted judgment for Standard Bank but declined to order the mortgaged properties executable, instead granting leave to re-apply on amplified papers. Standard Bank appealed to the SCA, which upheld the appeal, holding that registrars could grant such orders and that summonses need not contain allegations justifying limitation of section 26(1) rights until a defendant asserts infringement. The Campus Law Clinic then sought leave to appeal or alternatively direct access to the Constitutional Court on public interest grounds.

• Whether the Campus Law Clinic had standing under section 38 of the Constitution to apply for leave to appeal in proceedings to which it was not a party
• Whether it was in the interests of justice to grant leave to appeal against the SCA judgment
• Whether it was appropriate to grant direct access to the Constitutional Court to determine the constitutionality of section 27A of the Supreme Court Act and Rule 31 of the Uniform Rules of Court
• The proper procedural framework for creditors seeking to execute against mortgaged immovable property in light of constitutional housing rights under section 26

Both the application for leave to appeal and the application for direct access were dismissed. No order as to costs was made.

While section 38 of the Constitution provides broad public interest standing that represents a radical departure from common law requirements, and may permit non-parties to bring applications where affected persons are vulnerable and unlikely to pursue their own remedies, the grant of standing does not automatically mean leave to appeal or direct access should be granted. The interests of justice require that interrelated constitutional issues be determined comprehensively on a fully prepared record with all interested parties having opportunity to participate, rather than in fragmented or piecemeal fashion. The Constitutional Court will generally decline to determine important constitutional questions as court of first and last instance, particularly where the issues were not properly ventilated in lower courts and where government has not had adequate opportunity to justify any limitation of constitutional rights.

The Court observed that factors relevant to determining public interest standing under section 38 include: whether there is another reasonable and effective manner to bring the challenge; the nature and general applicability of relief sought; the range of affected persons and their opportunity to present evidence; the vulnerability of affected people; the nature of rights infringed; and consequences of infringement. The Court commended the collaborative approach taken by registrars, Deputy Judge Presidents, judges and members of the Bar in addressing the constitutional implications of execution against immovable property, particularly the willingness of counsel to assist courts as amici curiae. The Court noted that the existence of the SCA judgment would not bar the Campus Law Clinic or other interested bodies from pursuing the broader constitutional issues in fresh proceedings in the High Court, as the Campus Law Clinic was not a party to the SCA proceedings and the issues it wished to raise were broader than those adjudicated by the SCA.

This case is significant for clarifying the approach to public interest standing under section 38 of the Constitution, particularly for non-parties seeking to appeal decisions raising important constitutional issues. It demonstrates the Constitutional Court's preference for comprehensive determination of interrelated constitutional issues on a fully developed record rather than piecemeal adjudication, especially when important constitutional rights (such as access to housing under section 26) are at stake. The judgment affirms that section 38 represents a radical departure from common law standing requirements, but that standing alone does not determine whether leave to appeal or direct access should be granted. The case also illustrates the Court's reluctance to act as court of first and last instance on constitutional challenges to legislation and rules, particularly where vulnerable groups are affected and the government has not had full opportunity to justify limitations on rights. The Court's commendation of the collaborative approach by registrars, judges and the Bar in addressing constitutional issues affecting vulnerable litigants provides guidance for similar situations.