Municipal Employees Pension Fund v City of Johannesburg Metropolitan Municipality and Others

The Municipal Employees Pension Fund (MEPF) purchased a letting enterprise (the Nicolway Shopping Centre in Bryanston) from Erf 82 Bryanston (Pty) Ltd for R1.148 billion. Transfer was registered on 15 December 2021. At the time of sale, Erf 82 was a party to pending High Court review proceedings challenging the City of Johannesburg Metropolitan Municipality's (CoJ) approval of a rezoning application by Nordic Light Properties (Pty) Ltd in respect of land adjacent to the shopping centre. The sale agreement and an addendum recorded that Erf 82 would facilitate the MEPF becoming the applicant in those review proceedings. On 17 May 2022, the High Court granted an unopposed order substituting the MEPF as applicant in place of Erf 82. Thereafter, Nordic raised the issue of locus standi for the first time, contending that the MEPF lacked standing because it was not the owner of the property when the administrative decision was taken. The High Court dismissed the review application solely on the footing that the MEPF lacked the requisite standing, holding that a substitution order cannot create standing retrospectively where none existed and that an applicant must have had an interest at the time the administrative action was taken. The High Court and thereafter the Supreme Court of Appeal refused leave to appeal.

• Whether a purchaser of immovable property may continue with review proceedings instituted by the seller prior to the sale and transfer of the property.
• Whether an order of court substituting a litigant after litis contestatio renders the issue of locus standi res judicata.
• Whether standing to challenge administrative action can be 'transmitted' by agreement and substitution order where the substituted party was not the owner at the time of the impugned decision.
• Whether a subsequent owner of immovable property has independent locus standi under section 38 of the Constitution and section 6(1) of the Promotion of Administrative Justice Act 3 of 2000 to review administrative action taken before it acquired ownership.
• Whether the right to review administrative action under PAJA is transmissible to a successor in title in the same manner as a private law claim ceded after litis contestatio.

Leave to appeal was granted. The High Court's order dismissing the review was set aside and replaced with an order: (a) declaring that the applicant has the necessary locus standi to pursue the review proceedings instituted by Erf 82 Bryanston (Pty) Ltd; and (b) directing the respondents, jointly and severally, to pay the applicant's costs associated with the determination of locus standi as a separated issue, including the costs of two counsel. The review application was remitted to the High Court for determination of the merits. The respondents were further ordered, jointly and severally, to pay the applicant's costs of the applications for leave to appeal in the High Court and the Supreme Court of Appeal, as well as the applicant's costs in the Constitutional Court, including the costs of two counsel.

A successor in title to immovable property has independent locus standi under section 38 of the Constitution and section 6(1) of PAJA to continue review proceedings challenging administrative action affecting that property, because ownership confers a direct, substantial and real legal interest in the outcome. An order substituting a party in pending review proceedings after litis contestatio does not create standing where none existed; it recognises the substituted party's own independent standing derived from its legal interest in the subject matter. In review proceedings under PAJA, the requirement for standing is satisfied if the applicant has a real and direct interest at the time it seeks to come on record, not necessarily at the time the impugned administrative action was taken. Review of administrative action attaches to the exercise of public power itself and is distinct from private-law rights of a purely personal nature that are incapable of transmission.

The Court observed that the applicant was not a 'busy-body' but a litigant with a genuine direct interest in the outcome. It further commented that Erf 82 could not be forced to persist with litigation in which it no longer has any interest, nor can the review be adjudicated as if there is no opposition. The Court noted, by way of analytical contrast, that if the deceased litigants in Mkhize and Swanepoel had died before instituting review proceedings, their respective successors would nonetheless have had standing to institute independent review proceedings. The Court cautioned that its endorsement of 'transmissibility' in Mkhize and Swanepoel should not be understood to mean that public law claims can simply be ceded in the manner of private-law rights.

The judgment is significant because it confirms that a subsequent owner of immovable property has independent constitutional and administrative-law standing to challenge administrative action affecting that property, even where the impugned action pre-dates the owner's acquisition of title. It draws a clear distinction between private-law cession principles after litis contestatio and public-law review of administrative action, reinforces the broad approach to standing under section 38 of the Constitution and section 6(1) of PAJA, and establishes that a substitution order in pending review proceedings recognises the successor's own standing rather than creating or conferring standing retrospectively.