Locus Standi in judicio for Bringing Review

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Direct and Personal Interest

 

For a person to have standing to challenge the administrative action, he must have a sufficient personal interest in the matter concerned. Normally only a person who has a direct, personal interest in the remedy being sought has locus standi to seek that remedy in court. The personal interest that a person may have that will provide the basis for legal standing can be that the action will affect interests such as personal liberty, money or property or benefits or legitimate expectation of benefits, see Patz v Greene & Co 1907 TS 427; Adler v Salisbury City Council 1947 (2) SA 220 (SR); Stevenson v Minister of Local Government and National Housing & Ors 2001 (1) ZLR 321 (H) – the High Court judgment) and Stevenson v Minister of Local Government and National Housing & Ors  2002 (1) ZLR 498 (S) – the Supreme Court judgment). For a critical commentary on the High Court decision in the Stevenson case see Feltoe “Legal standing in Public Law” 2002 Issue No 7 Zimbabwe Human Rights Bulletin 187.

 

In Makarudze & Anor v Bungu & Ors 2015 (1) ZLR 15 (H) the court pointed out that locus standi in judicio refers to ones right, ability or capacity to bring legal proceedings in a court of law. One must justify such right by showing that one has a direct and substantial interest in the outcome of the litigation. Such an interest is a legal in the subject-matter of the action which could be prejudicially affected by the judgment of the court. The court will be slow to deny locus standi to a litigant who seriously alleges that a state of affairs exists, within the court’s area of jurisdiction, where someone in a position of authority, power or influence abuses that position to the detriment of their members or followers. Here the plaintiffs undoubtedly had a direct and substantial interest in the management of the affairs of the union.    

 

Section 3(1) of the Administrative Justice Act provides that an administrative authority with the responsibility or power to take any action that may adversely affect rights, interests or legitimate expectations of a person must act lawfully, reasonably and in a fair manner etc. Section 4(1) then provides that if the administrative authority fails to do these things, any person who is aggrieved thereby may apply to the High Court for relief. However, in terms of section 6 a person can only apply to the High Court for an order compelling an administrative authority to supply reasons where that persons rights, interests or legitimate expectations are “materially and adversely affected” by the administrative action.

 

If a person has a personal interest in this sense, the fact that there are others with the same interest will not affect the standing to sue; the person suing does not have to prove that his interest is greater than that of others, see Bamford v Minister of Community Development 1981 (3) SA 1054 (C). In Bamford the applicant applied for an interdict to prevent Government from building illegally in a park area. His continued access to the park for recreation was held to be a personal interest sufficient to give him locus standi even though this right of access was a right that others had as well. In Director of Education, Tranvaal v McCagie 1918 AD 616 properly qualified applicants for a post had local standi to take on review the decision to appoint an unqualified person.

 

See also Jacobs v Waks 1992 (1) SA 521 (A); Dalrymple v Colonial Treasurer 1910 TS 372;

Attorney-General v van der Merwe & Anor 1946 OPD 196 and Salisbury Bottling Co v Central African Bottling Co 1958 (1) SA 750 (FS)

 

 

Unlawful eviction from property

In Kweremu & Ors v Minister of Lands and Water Development & Ors HH-230-93 the CCJPZ and two others applied for a temporary interdict restraining the respondents from evicting the two applicants from Churu farm. The court ruled that the CCJP had no locus standi to be a party to this suit because the CCJPZ did not have any real and substantial interest in the subject matter of the application. Although the CCJPZ has the aim of protecting the human rights of all persons in Zimbabwe, this does not mean that it had the right to appear on behalf of any persons or groups of persons whose human rights it believes are being prejudiced. It may only assist them to obtain legal representation or to form an association to represent their interests; but it cannot be a party to any application to protect people from eviction from a farm that the Government had taken over. The criteria laid down in the constitutional case for locus standi applied in the delay in carrying out the death penalty case did not apply here.

 

Ratepayers

 

Ratepayers are presumed to have a legitimate interest in the legality of action taken by their local authorities. A ratepayer would thus have automatic standing to bring an action against a local authority without proof of injury to himself or herself. See Binza v Acting Director of Works & Anor 1998 (2) ZLR 364 (H) and Stevenson v Minister of Local Government and National Housing & Ors2001 (1) ZLR 321 (H). In the Stevenson case, the applicant, a ratepayer, had applied for an order obliging the holding of mayoral and council elections in Harare to elect councillors to replace the Commissioners appointed by the Minister to run the council since he sacked the previous elected council. The High Court held that the application was not directed to the local authority but was instead seeking to challenge a policy decision of central government and therefore the special rule relating to standing by ratepayers in respect of local authorities did not apply. On appeal the Supreme Court held that as a resident and registered voter in the local area, the appellant had a sufficient interest in the way in which the local area would be run.)

 

Rule in Patz v Greene

 

The rule in Patz v Greene 1907 TS 427 applies in Zimbabwe. See Stevenson v Minister of Local Government and National Housing & Ors 2001 (1) ZLR 321 (H). This rule states that where legislation is enacted in the special interest of a particular individual or class of persons, the court will presume that a violation of the legislation will automatically entitle the affected individual or member of the class of persons to standing without proof of injury. (In the Stevenson case, the court decided that the Urban Councils Act was not enacted in the special interest of voters eligible to elect a local authority in their area and thus the rule in Patz v Greene did not apply.) This is in effect only a partial exception to the general rule as it merely presumes that the litigant who falls into this category was personally affected, although that person will not have personal injury.

 

Actions by associations and political parties

A citizen’s or a group’s concern about the legality of the action or harm that it will cause is not enough as the law does not recognise the right to bring an action on behalf of others or in order to protect the general public interest. However, an organisation that was formed to represent the interests of its members may bring an action on behalf of its members. See Zimbabwe Teachers Association & Ors v Minister of Education and Culture 1990 (2) ZLR 48 (H). In that case a number of teachers had been sacked after they had gone on strike. A teachers association brought a court action to have these teachers reinstated. It was argued by the respondent that the association has no locus standi in this matter. The court reviewed the relevant case law on locus standi. It pointed out the functions of the association included the safeguarding of the interests of its members and that it had a membership of about 42% of all the teachers in Zimbabwe. The court held that it had a real and substantial interest in the matter and therefore that it had locus standi.

 

However in the case of Nyamandhlovu Farmers’ Association v Minister of Lands & Anor 2003 (1) ZLR 185 (H)the High Court decided that an association did not have locus standi in the circumstances to bring the action on behalf of its members. Members of the applicant association, all farmers, had received notices under the Land Acquisition Act to leave their farms by a certain date. The association brought an application before the High Court, seeking an order that various sections of the Act were invalid by reason of being in conflict with several sections of the Declaration of Rights. The court pointed out that the affected farmers did not file affidavits or provide other proof that the association was authorised to act on their behalf, nor did the association aver such authorisation. Not all members of the association were affected by the receipt of notices. The association itself was not affected by the receipt of notices of acquisition, and the matter was not a class action. Consequently, the association had no locus standito bring the application. Only the affected members themselves could do so.

 

In the case of United Parties v Minister of Justice 1997 (2) ZLR 254 (S), the Supreme Court ruled that the applicant political party had no locus standi to challenge the constitutionality of certain provisions in the Electoral Act as the application of these provisions might affect the rights of voters but it would not infringe the rights of the applicant political party. (For a commentary on this and other related cases see 1998 Vol. 10 No. 1 Legal Forum 48.) See also Stevenson v Minister of Local Government and National Housing & Ors 2001 (1) ZLR 321 (H).

 

By contrast in the South African case of African National Congress v Chairman, Council of State of Ciskei 2003 (3) BCLR 288 (C) the court held that a political party did have locus standi to bring an action on behalf of its members.

 

In the case of Law Society v Minister of Justice & Anor 2006 (2) ZLR 19 (S) the Law Society brought an application under s 24 of the Constitution, challenging the constitutionality of certain amendments to the Criminal Procedure and Evidence Act [Chapter 9:07], relating to arrest and detention for certain offences. In its founding affidavit, the Law Society averred that it was the largest organisation representing the interests of all legal practitioners in Zimbabwe. It represented the views of the legal profession in Zimbabwe and maintains the integrity and the status of the legal profession. As such, it had a duty to consider and deal with all matters affecting the professional interests of the legal profession. Its locus standi was based on its status as the public defender or protector of the rule of law and human rights. There was no averment that the impugned provision violated the right of the applicant, or of a member of the applicant. However, the Society contended that the impugned provisions violated the public’s right of liberty and entitlement to a presumption of innocence as guaranteed by ss 13 and 18 of the Constitution, respectively. The applicant contended that, as an organisation representing the legal profession, it had the duty to protect the public from unconstitutional provisions of any law, and thus had locus standi to bring the application. The Supreme Court held that a litigant in an application under s 24 has no locus standi to seek redress for a contravention of the Declaration of Rights other than for himself or itself, the exception being where the person involved is in custody. Locus standi to make a direct application to the Supreme Court in terms of s 24 is much narrower than the common law. It is not sufficient to simply establish that the applicant has an interest in the matter. The applicant has to go further and establish that the Declaration of Rights has been or is likely to be contravened in respect to itself. However, in the High Court the common law test, namely having an interest in the matter under adjudication, is sufficient to establish locus standi.

 

 

Class actions

 

The Law Development Commission recommended that the law on group actions be changed to facilitate group actions so as to provide an expeditious and inexpensive method for large numbers of persons to exercise and enforce their legal rights. It recommended that non-governmental organisations should be allowed to bring such actions. See Report No. 50: Proposed Class Action (1996).

 

Acting on this recommendation in 1999 the Government passed the Class Actions Act [Chapter 8:17]. The important features of this legislation are these.

 

A class action can now be brought in a far wider range of circumstances than previously. For example, it could be brought even though there are different issues of fact or law relating to the claims or the relief sought which may require individual determination.

 

A person or organisation wishing to bring a class action on behalf of others will be required to obtain the leave of the court to mount such action. The court will grant leave if it considers that a class action is the appropriate way of proceeding. The court will exercise a supervisory role over the ongoing action to ensure that this procedure is used genuinely for the purpose for which it was designed, namely to facilitate access to justice for those who would not receive it because of their poverty, their ignorance or their disinclination to manoeuvre their way through complex legal procedures (s 8). The court can also appoint a commissioner to perform such duties as determining particular issues or assessing individual monetary claims of individuals in the class (s 9).

 

To make the proceedings benefit as many potential beneficiaries as possible, the judgment in a class action is binding on all members of the class concerned other than those who after notice has been given of the action have advised that they wish to be excluded from the class action concerned (s 11). In a class action the court can, where appropriate, award judgment in the form of an aggregate amount to be distributed amongst the members of the class concerned (s 12).

 

In order to assist representatives embarking upon such actions on behalf of others, there will be a Class Actions Fund (s 14). This fund will be constituted of monies made available by Parliament, donations and re-inbursements of costs made by members of the class in a successful class action.

 

Usually, Zimbabwe legal practitioners are not permitted to take on actions on a contingency fee basis. However, in respect of class actions, subject to certain limitations, a legal practitioner will be permitted to make an arrangement with any person who is to be a representative in a class action for the payment of fees and disbursements in respect of the class action dependent on the success of the class action.

 

A class action is an important mechanism for a group of persons who are being denied their rights by an administrative authority or who have been adversely affected by illegal or arbitrary action on the part of an administrative authority. There is scope for extensive use of this device and legal practitioners and human rights organizations should make proper use of this action on behalf of local communities and other groups. Sometimes however where the group will have an ongoing relationship with an administrative authority, the members of the group affected by the administrative action may be reluctant for litigation to be brought on their behalf because they may fear victimization from the powerful administrative authority if they agree to the matter being litigated.

 

 

Parastatals suing for defamation

 

There are special rules relating to the locus standi of parastatals to sue for defamation. In the case of PTC v Modus Publications 1997 (2) ZLR 492 (S), the PTC had sought to sue a newspaper for defamation. It was held that for policy reasons corporations that are part of the governance of the country are not entitled to sue for defamation. The main policy reasons for denying to State organs the right to sue for defamation are these. State bodies should be open to public criticism. As part of the general right of freedom of expression, the public should have the right freely to criticize the activities of these State bodies. The State should not be able to stifle or silence criticism by mounting defamation actions against the critics using State funds, derived from its subjects, to finance such actions. The State’s normal remedy in such a case is a political one and not by way of litigation. Such State bodies are not, however, wholly deprived of a remedy in the event of scurrilous attacks upon their reputations. They have the right to bring actions for economic loss resulting from injurious falsehood, in our law referred to as malicious making of false statements.

 

Human rights and constitutional cases

 

In the previous constitution, the only persons who could bring such cases before the courts were—

  • persons alleging that their fundamental rights had been violated or were likely to be violated;
  • persons seeking redress on behalf of detained persons.

 

Section 85(1) expands significantly the categories of person who approach a court to enforce of human rights and freedoms. In addition to persons who are acting in their own interests, it provides that the following persons can approach the courts to enforce fundamental rights and freedoms:

  • any person acting on behalf of another person who cannot act for themselves;
  • any person acting as a member, or in the interests, of a group or class of persons;
  • any person acting in the public interest;
  • any association acting in the interests of its members.

 

This means that disadvantaged persons can have their cases brought to court on their behalf by, for instance, an organisation acting in the public interest.

Case law under the previous constitution will now have to be re-assessed in the light of the significant changes brought about by the new constitution.

 

However, where the affected person is able to bring litigation, a human rights organisation will not have standing to join in this action. If a human rights organisation wishes to assist in such cases they can only do so by donating finance to enable the action to be brought to court or by helping to organise the people affected in an association that can represent their interests, see Kweremu & Ors v Minister of Lands and Water Development & Ors HH-230-93 .

 

In the case of Law Society of Zimbabwe & Ors v Minister of Finance (Attorney-General Intervening} 1999 (2) ZLR 231 (S) the locus standi of the Law Society was questioned. A withholding tax on the sale of immovable property was introduced in terms of ss 35 and 36 of the Finance Act 29 of 1998. The effect of these provisions was to require legal practitioners, estate agents and others who hold on behalf of others the purchase price of immovable property to withhold a percentage of the price. The applicants brought an application in which they claimed that this withholding tax amounted to compulsory acquisition of property, contrary to s 16 of the Constitution. It argued that the provisions of s 16(7)(a) of the Constitution did not save these measures of taxation as these particular measures were not reasonably justifiable in a democratic society. As a preliminary point, the respondent argued that one of the applicants, the Law Society, did not have locus standi to bring an application to determine the constitutionality of this system of taxation.

 

It was held that the Law Society had locus standi to bring this application. In matters of this nature the court will take a broad view of locus standi. The Law Society was empowered by the Legal Practitioners Act [Chapter 27:07] to assist and join in a case of this nature. In additional to its statutory interest, it had a real and substantial interest in the matter.

 

In the South African Constitutional Court Chaskalson P had this to say at in the case of Ferreira v Levin NO & Ors: Vryenhoek & Ors v Powell NO & Ors 1996 (1) SA 984 (CC) at 1082 G-H (paragraph 165):

 

I can see no good reason for adopting a narrow approach to the issue of standing in constitutional cases. On the contrary, it is my view that we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this court to uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of the protection to which they are entitled.

 

This should be contrasted with the approach adopted by the Zimbabwean Supreme Court in the case of Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity in the President’s Office & Ors 2004 (1) ZLR 538 (S). The owners and publishers of a daily newspaper had approached the court for a ruling on the constitutionality of legislation imposing various controls over the operation of newspapers in Zimbabwe. The court refused to give a ruling on the merits, finding that the applicant could not be heard on the merits because it was openly defying the law. The court said it would be denied legal relief until it complied with this law.

 

Violations of fundamental rights of persons in detention

 

Where the person whose fundamental rights are being violated is under detention the Constitution specifically recognises the right of persons other than the person detained to approach the Supreme Court. Section 24(1) provides that any person may apply to the Supreme Court for redress where his fundamental rights as set out in the Constitution have been, are being or are likely to be violated or if the person is detained, any other personmay make the application for redress.

 

Broken down this provision entails the following–

 

  • A person can approach the court for redress for the detained person where any of the constitutionally protected rights of a detained person have been, are being or will be violated.
  • Any person can seek redress on behalf of the detained person; the person thus does not have to be a spouse, relative or friend. The person could be a complete stranger to the person detained.
  • The provision does not lay down that the other person may only approach the court when the detainee is unable to do so himself or the detained person lacks the financial means to employ a lawyer to take the matter to court for him. Thus it seems that the person seeking redress on behalf of the detained person does not have to establish that the detainee is himself unable to approach the court.
  • The phrase “if the person is detained” must encompass both cases where the person is lawfully detained in custody and cases where the person is unlawfully detained. It is also not confined to cases where persons are held in preventive detention during times when there is a state of emergency. (The words “detention” and “detained” are not defined in the interpretation section of the Constitution, namely s 113.)

 

Right to life

 

In the case of Deary v Acting President of Rhodesia & Ors 1979 RLR 200 (G), certain emergency powers provisions were passed authorising the execution outside areas subject to martial law of persons condemned to death by special courts martial within those areas. Deary on behalf of the Catholic Commission for Justice and Peace of Zimbabwe (CCJPZ) applied for an interdict prohibiting such executions on the grounds, inter alia, that the provisions violated the Constitution as such persons were denied the right to petition the President for clemency. The court held that the applicant had sufficient locus standi to bring the application, in view of the seriousness of the abuse alleged by him, the financial circumstances of the condemned persons and their relatives, and the fact that some of these persons were probably Roman Catholics.

 

In CCJPZ v AG & Ors 1993 (1) ZLR 242 (S) at 250the CCJPZ brought an application to prevent the execution of certain condemned prisoners on the ground that their execution after prolonged delay would violate s 15(1) of the Constitution. In deciding that this organisation had locus standi to seek redress for the condemned prisoners the court pointed out that the CCJPZ is a human rights organisation whose objects are to uphold basic human rights including the most fundamental of all, the right to life. The organisation was intimately concerned with the protection and preservation of the rights and freedoms granted to persons in Zimbabwe by the Constitution. Its application was not a frivolous one. The court went on to say that it would be “wrong, therefore, for this court to fetter itself by pedantically circumscribing the class of persons who may approach it for relief to the condemned prisoners themselves; especially as they are not only indigent but, by reason of their confinement, would have experienced practical difficulty in timeously obtaining interim relief from this court”. Catholic Commission for Justice and Peace in Zimbabwe had locus standi to seek redress for the condemned prisoners who had been awaiting the carrying out of the death penalty upon them for protracted periods of time.

 

Both the above cases involved alleged violation of fundamental rights of person in detention. In such cases, the court can simply invoke s 24(1) of the Constitution that allows any other person to bring the application for redress on behalf of the detained person.

 

Unlawful detention

 

The interdict de libero homine exhibendo, more commonly referred to as habeas corpus, is a remedy designed to place under review the lawfulness of a deprivation of personal liberty, aiming ultimately at the release of an individual from unlawful detention: see Baxter p 660.

 

The courts have tended to apply a much more liberal locus standi requirement in respect of this remedy because the persons unlawfully detained may often be completely unable to approach the courts themselves. Where the person unlawfully detained has been unable to seek the remedy himself, the courts have allowed others to pursue the remedy on his behalf, see Borzolli v Station Commander John Vorster Square 1972 (3) ZLR 934 (W) Here a University Principal was held to have locus standi to apply for an interdict in respect of detained students.) See also Wood v Ondangwa Tribal Authority 1975 (2) SA 294 (A). This case concerned an application for a prohibitory interdict to prevent the illegal detention of certain people. The applicants were not the people threatened, but were two church leaders and the secretary of SWAPO. The applicants were thus applying for the interdict on behalf of the persons under threat. The persons threatened with detention were members of the church congregations and members of the political party. The applicants averred that because of the distances involved, the limited means of those threatened and their lack of sophistication, the persons were unable to approach the court themselves. The court accepted their locus standi. The basis of this case is that of necessity; only when the persons with direct, personal interests in the remedy are unable to approach the court, will someone else be allowed to approach the court on their behalf.

 

In Zimbabwe, unlawful detention is a clear violation of the constitutionally protected right to liberty. As the person is under detention s 24(1) of the Constitution can be invoked and any person would be able to approach the court to seek redress on behalf of the person unlawfully detained without the need for that person to establish that the detained person himself is unable himself to seek redress.

 

In Minister of Home Affairs & Anor v Bangajena 2000 (1) ZLR 306 (S) the Supreme Court stated that the deprivation of personal liberty is an odious interference and has always been regarded as a serious injury. The courts have properly taken the stance that deprivation of liberty through unlawful arrest and imprisonment is a very serious infraction of fundamental rights. Damages for this delict should therefore be exemplary and punitive to deter would-be offenders.

 

In Chituku v Minister of Home Affairs & Ors 2004 (1) ZLR 36 (H) the court stated that treatment of an arrested, detained or convicted person that affronts the dignity of that person or exceeds the limits of civilised standards of decency and involves the unnecessary infliction of suffering or pain is inhuman and degrading. If the High Court is satisfied that the actions complained of violate the rights of the plaintiff as granted under the Constitution, it could grant suitable relief to redress the injury. This is part of the inherent jurisdiction that the court enjoys. The plaintiff is not restricted to bringing an application under s 24 of the Constitution. The right to dignity is recognised in the Roman-Dutch law as an independent right that can be protected by the actio injuriarum, the actio injuriarum being wide enough to encompass any action that violates the corpus or dignitas of the plaintiff. Inhuman and degrading treatment affronts the dignity or self-respect of an individual and could found a claim. It seems that that in an application under s 24 of the Constitution, the Supreme Court has the power to award damages.

 

Unlawful eviction from property

 

The case of Kweremu & Ors v Minister of Lands and Water Development & Ors HH-230-93 concerned an application by some squatters for an interdict to prevent their eviction. A human rights organisation wished to be a party to this suit. The court held that it had no locus standi because the parties directly affected were able to bring the action themselves.

 

Other fundamental rights

 

In the case of Tsvangirai v Registrar-General of Elections & Ors 2002 (1) ZLR 268 (S), the majority of the Supreme Court adopted a narrow approach to legal standing. The applicant, a presidential candidate in the presidential election, challenged the constitutionality of the use of s 158 of the Electoral Act by President Mugabe to effect last minute drastic changes to the conditions under which the presidential elections were to be held. The applicant argued that this had violated the fundamental rights of protection of law (which includes due process of law) and freedom of expression. The majority of the court found that the applicant had not shown that the declaration of rights provisions had been contravened in relation to him as required by s 24(1) of the Constitution. The minority of the court decided that the applicant had locus standi as he had a real and substantial interest in the matter, namely he had a right under the constitutional provision on protection of law to challenge a law passed by a process that was inconsistent with the Constitution. (The applicant was arguing that under the Constitution, only Parliament could pass electoral laws and Parliament could not delegate this power to the President.) For a critical commentary on this case see: Feltoe “Legal standing in public law” 2002 Issue No 7 Zimbabwe Human Rights Bulletin 187.

 

 

Whether the courts should adopt a wider approach to locus standi

 

It has been strongly argued that in administrative cases the courts should adopt a more expansive approach instead of the rather narrow and restrictive approach to locus standi that they currently adopt. Thus Wade and Schwartz in Legal Control of Government: Administrative Law in Britain and the United States at p 291

 

Restrictive rules about standing are in general inimical to a healthy system of administrative law. If a plaintiff with a good cause of action is turned away merely because he is not sufficiently affected personally, that means that some government agency is left to violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake. In the rare cases where they wish to sue merely out of public spirit, why should they be discouraged.

 

For the arguments for and against a wider approach to locus standi in administrative matters see Feltoe “Legal standing in public law” 2002 Issue No 7 Zimbabwe Human Rights Bulletin 187.