The Municipal Employees Pension Fund (MEPF) was given the greenlight by the Constitutional Court to proceed with a rezoning dispute it had inherited when it bought the Nicolway Shopping Centre, now Winifred Mandela Precinct, in Bryanston.

The MEPF earlier bought the shopping centre for R1,148 billion, but the sale came with an ongoing court case over a rezoning dispute that could see a 10-storey mixed-used development next to the shopping centre.

The pension fund and the previous owner of the land fear that it will cause traffic congestion and harm the shopping centre’s commercial viability if its neighbour was allowed to go-ahead with the building.

The owner who sold the land to the MEPF had already taken the City of Johannesburg and the proposed developer of the mixed-housing project, Nordic Light Properties, to court over what it deemed the unlawful permission for the rezoning.

The litigation was ongoing when the pension fund bought the shopping centre. The sale agreement made it clear that it would take over the litigation, and MEPF was formally substituted as the applicant in that dispute.

When the pension fund turned to court to pursue the review application against the rezoning, Nordic, however, objected and said the pension fund has no legal standing to do this, as it was not the owner of the adjacent land (which it had now purchased) when the rezoning was approved.

The high court agreed and found that legal standing cannot be conferred retrospectively. The court dismissed the matter on this technical finding even before it heard the merits of the case. This led to the pension fund’s constitutional challenge before the apex court.

The issue was whether MEPF, as the new owner, did have the legal standing to continue with the legal bid to stop the building of the envisaged housing complex. The City of Johannesburg argued that the MEPF would not be able to advance any arguments on the merits of the review application because it was not there when the decision was made by the CoJ to approve the rezoning.

Ultimately, the CoJ’s contention in this regard is that it was the earlier owner that started the litigation and that it ought to have seen it through to its conclusion.

But the ConCourt did not agree. It found that the MEPF, as the current owner of the property, has a substantial interest in what will happen to the property adjacent to that which it has bought. The court said the outcome of the review application will thus have a direct effect on the pension fund’s interests.

The former owner of the land in its original review application said should construction commence without the court offering protection to him, it would result in traffic chaos in the area and have a detrimental effect on the shopping centre’s patrons.

The apex court now said the same consequences face the new owner – the MEPF – and it thus has a direct interest in proceeding with its fight against the rezoning rights granted by the City of Johannesburg to its neighbour.

zelda.venter@inl.co.za

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