NATAL COMMAND: ULTIMATE VICTORY FOR SINGH
November 29, 2012
Yesterday the Constitutional Court of South Africa 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 eleven 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 wherafter 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.
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