Chapter 3 - Locus standi

Question 1

Standing/Locus standi

Answer 1

Standing concerns whether someone who approaches a court is the appropriate person to present the matter to the court or adjudication. Under common law, the South African courts took a restrictive approach to standing. A person who approached a court for relief was required to have a direct interest in the subject matter of the litigation, in the sense of being personally adversely affected by the alleged wrong. The approach to standing in the Bill of Rights matters contrasts radically with the common law approach.

Question 2

According to the Court, The applicant only needs to do the following to have standing:

Answer 2

1. Allege that a right in the Bill of Rights has been infringed.
   .2. Demostarate, with reference to the categories listed in section 38(a)-(e), that there is sufficient interest in obtaining the remedy sought.

Question 3

Sufficient interest

Answer 3

No test has been laid down to determine when an interest will be regarded as sufficient. In our view, the applicant, or the person or group whose interests rely on, must at least be directly affected by a law or conduct before he or she will have standing to challenge it.

Question 4

The categories of persons

Answer 4

1. Anyone acting in their own interest.
2. Anyone acting on behalf of another person who cannot act in their own name.
3. Anyone acting as a member of, or in the interest of, a group or a class of persons.
4. Anyone acting in the public interest
5. An association acting in the interest of its members.

Question 5

Anyone acting in their own interest.

Answer 5

An own interest must show that a contested law r decision directly affects his or her rights or interests; or potential rights or interests.

Question 6

Anyone acting on behalf of another person who cannot act in their own name.

Answer 6

There are many reasons why someone may not be able to act in his or her own interest, for example, a child or minor or a detained person who may find it difficult to approach the court.

Question 7

Anyone acting as a member of, or in the interest of, a group or a class of persons.

Answer 7

This provision allows for so-called class actions. A case may be brought by a party on behalf of not only himself or herself, but also on all parties similarly situated.

Question 8

Anyone acting in the public interest

Answer 8

The action is brought in the interest of a broader group than is the case in section 38(c)

Question 9

Factors that show that one is acting in the public interest

Answer 9

1. Is there another reasonable and effective way in which this action can be brought
2. The nature of the remedy sought and the degree to which it will be generally and retro-respectively applicable
3. The range of persons, or groups of persons, who may be directly or indirectly affected by the court order.
4. The opportunity that these persons/groups had to adduce evidence and make submissions in court.

Question 10

Additional factors as per Lawyers for Human Rights v Minister of Home Affairs

Answer 10

1. The degree to which people are affected.
2. The vulnerability of the people affected
3. The nature of the right which has allegedly been violated
4. The consequences of the violation of the right.

Question 11

An association acting in the interest of its members

Answer 11

This provision is important in view of the fact that, prior to 1994, courts did not generally allow associations to litigate on behalf of their members. The association must show that the members have a sufficient interest in the remedy it seeks.