The Constitutional Court of South Africa
yesterday (November 29) handed down judgement in favour of Anant Singh’s
Rinaldo Investments in the matter of the purchase of the Natal Command site on
the Durban beachfront. Singh has emerged victorious after an epic legal battle
that has spanned more than eight years.
The Constitutional Court in its unanimous,
comprehensive judgement by the full bench of the 11 judges of the Court, also
dealt with the standing of Giant Concerts saying, “The inference that Giant was
merely toying with process, or seeking to thwart a propitious public
development because it had been made available to someone else, is therefore
one the Court is entitled to draw. The consequence is that Giant lacks
standing, since its interest remains incipient and has never become direct or
substantial.”
Singh, currently in London, commented, “We
welcome the decision of the Constitutional Court. We are vindicated by the
judgement which endorses the fact that due process was followed in the
transaction. The long legal process has delayed the project which would have a
positive impact on the economy of the City and Province. We now look forward to
proceeding with the exciting opportunities that this development brings to the
region in the film, media and entertainment sectors.”
The proposal for the project, together with
concept drawings for the film studio complex were presented to the City nine
years ago after which it was presented to City’s Exco and was subsequently
unanimously approved by a full sitting of the eThekwini Council and endorsed by
the Provincial Authorities.
Representing Singh and Rinaldo Investments
were Sudhir Pragjee (Videovision Entertainment’s Director of Business Affairs),
attorney David Levin of Nicolson Stiller and Geshen, and Advocates Peter Olsen
SC and Andrea Gabriel SC.
Summarising the judgement, the Constitutional
Court said:
Today the Constitutional Court delivered a
judgment dismissing an appeal against a decision of the Supreme Court of Appeal
(SCA).
In 2003, through a law allowing a
municipality to sell land by private sale rather than a public tender, the
Ethekwini Municipality sold prime property on the Durban beachfront to Rinaldo
Investments (Pty) Ltd (Rinaldo) as part of its plan to promote Durban as an
international destination for film production. Rinaldo is a property-holding
company ultimately controlled by film-maker Mr Anant Singh. The applicant,
Giant Concerts CC (Giant), objected to the proposed sale and the Municipality
rejected the objection.
Giant asked the KwaZulu-Natal High Court,
Pietermaritzburg to set aside the sale. The High Court decided in favour of
Giant, holding that the decision was unlawful, procedurally unfair and
unreasonable. It declared the agreement between the Municipality and Rinaldo
void.
On appeal, the Supreme Court of Appeal
reversed the finding of the High Court. It found that Giant had failed to
establish legal standing to challenge the decision to sell the land to Rinaldo
since it had not shown a sufficient interest in the subject matter of the
dispute. Giant claimed to act in its own interest in terms of section 38(a) of
the Constitution.
In a unanimous judgment for the
Constitutional Court, Cameron J noted that Giant did not claim to act in the
public interest or on behalf of a group or association or anyone who was not
able to bring proceedings themselves. It therefore had to show standing on the
basis of its own interest alone. The Court affirmed that constitutional
own-interest standing is broader than traditional common law standing. A
litigant must nevertheless show that his or her rights or interests are
directly affected by the challenged law or conduct.
The Court concluded that even on a broad
approach to standing, Giant did not show that it had interests that were
capable of being directly affected. This was because Giant never demonstrated that
it had any serious commercial interest in the venture. In fact, Giant had
failed to establish anything more than a hypothetical or academic interest. The
Court found that Giant had no standing.
It held that when a party does not have
standing, it is not necessary to consider the substance of the dispute, unless
there is at least a strong indication of fraud or other gross irregularity in
the conduct of a public body. There was nothing of the kind in the case before
it. The appeal was therefore dismissed with costs.
Nilesh Singh: VideoVision Entertainment.
For more information contact email: sharlene@versfeld.co.za
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