Limpopo Legal Solutions v Vhembe District Municipality and Others

The applicant, Limpopo Legal Solutions, is a non-profit voluntary association operating in Limpopo Province, whose object is to promote human rights and ensure accountability by state entities. The applicant brought an urgent application in the High Court on behalf of residents of Malamulele B, Extension 1, seeking orders declaring that the respondents (Vhembe District Municipality, Minister of Water Affairs and Forestry, and Thulamela Municipality) had failed to provide reasonable sanitation facilities to residents, in violation of their constitutional rights including the right to human dignity under section 10 of the Constitution. The applicant sought orders compelling the respondents to provide toilet facilities to residents unable to afford them. The respondents opposed the application, raising points that the applicant lacked locus standi, the matter was not urgent, and there was non-compliance with section 35 of the General Law Amendment Act.

• Whether a voluntary association acting in the public interest has standing under section 38(d) of the Constitution to bring an application alleging infringement of Bill of Rights entitlements
• Whether the applicant was genuinely acting in the public interest
• Whether the High Court properly applied the test for locus standi established in Lawyers for Human Rights and Ferreira
• Whether the Biowatch principle on costs should apply in constitutional litigation against the state
• Whether section 35 of the General Law Amendment Act applied to the relief sought

Leave to appeal was granted only in respect of the costs order. Leave to appeal against the decision on urgency was refused. The appeal was upheld. The High Court's costs order was set aside and replaced with "There is no order as to costs." The first respondent was ordered to pay the applicant's costs in the Constitutional Court.

The binding legal principles established are: (1) When determining whether a person or organisation has standing under section 38(d) of the Constitution as someone acting in the public interest, courts must assess whether the applicant is genuinely acting in the public interest by considering factors including: whether there is another reasonable and effective manner to bring the challenge; the nature of relief sought and its general application; the range of persons affected; the degree of vulnerability of affected people; the nature of the right alleged to be infringed; and the consequences of the infringement. (2) It is ordinarily in the public interest for proceedings to be brought where vulnerable persons' constitutional rights, including the right to human dignity and access to basic services, are allegedly being violated by state entities. (3) In constitutional litigation against the state, the Biowatch principle applies and courts should not automatically apply the rule that costs follow the result. The ordinary approach to costs in civil litigation is inappropriate in constitutional litigation in the public interest against the state.

The Court noted obiter that section 35 of the General Law Amendment Act only applies where a rule nisi operating as an interim interdict is sought against government and specified functionaries. Where no such relief is sought, section 35 is not applicable. The Court also observed that while it declined to grant leave to appeal on the urgency issue, the only proper basis for the High Court to strike the matter off the roll (given its errors on standing and costs) was that the matter was not urgent. The Court's statement that "the list of relevant factors is not closed" when assessing public interest standing indicates that courts should adopt a flexible, contextual approach and may consider additional factors beyond those enumerated in Ferreira.

This judgment is significant in South African law as it reinforces and clarifies the approach to legal standing for voluntary associations and non-profit organisations seeking to bring constitutional litigation in the public interest under section 38(d) of the Constitution. It reaffirms that courts must take a generous approach to standing where vulnerable persons' constitutional rights are at stake and where the organisation is genuinely acting in the public interest. The case also reinforces the application of the Biowatch principle on costs in constitutional litigation against the state, establishing that the ordinary rule that costs follow the result should not automatically apply in such cases. This promotes access to justice by removing the deterrent effect of adverse costs orders for public interest litigants challenging state conduct that violates constitutional rights. The judgment is important for civil society organisations seeking to hold government accountable for failures to provide basic services and uphold constitutional rights, particularly socio-economic rights of vulnerable communities.