THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1074/2022

In the matter between:
SECONA FREIGHT LOGISTICS CC
APPELLANT

and

KOOBENDRAN SAMIE
FIRST RESPONDENT

TRUSTEES OF THE CATO MANOR INDIAN
CEMETERY AND CREMATORIUM ASSOCIATION
SECOND RESPONDENT

ETHEKWINI METROPOLITAN MUNICIPALITY
THIRD RESPONDENT

HEAD OF DEPARTMENT: ECONOMIC DEVELOPMENT,

TOURISM AND ENVIRONMENTAL AFFAIRS:
KWAZULU-NATAL
FOURTH RESPONDENT

MEC FOR ECONOMIC DEVELOPMENT,

TOURISM AND ENVIRONMENTAL AFFAIRS:
KWAZULU-NATAL
FIFTH RESPONDENT

CHIEF DIRECTOR: KWAZULU-NATAL DEPARTMENT

OF WATER AND SANITATION
SIXTH RESPONDENT

MINISTER OF WATER AND SANITATION
SEVENTH RESPONDENT

AMAFA AKWAZULU-NATALI
EIGHTH RESPONDENT

SOUTH AFRICAN HERITAGE RESOURCES AGENCY
NINTH RESPONDENT

Neutral citation: Secona Freight Logistics CC v Samie and Others (1074/2022) [2023]
ZASCA 183 (22 December 2023)

Coram:
MOCUMIE, MOKGOHLOA and GOOSEN JJA and MUSI and MASIPA
AJJA

Heard:
6 November 2023

Delivered:
This judgment was handed down electronically by circulation to the parties’
representatives by email, published on the Supreme Court of Appeal website, and
released to SAFLII. The date and time for hand-down is deemed to be 11h00 on 22
December 2023

Summary:
Civil procedure – locus standi – appealability – whether the issue of
locus standi determined as a point in limine is appealable.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court, Durban (Henriques J, sitting
as a court of first instance):
The application for condonation for the late filing of the notice of appeal is granted
and the appeal is reinstated, with no order as to costs.
The appeal is struck off the roll, with no order as to costs.

JUDGMENT

Mocumie JA (Mokgohloa and Goosen JJA and Musi and Masipa AJJA concurring):

[1] This appeal is against an order of the KwaZulu-Natal Division of the High Court,
Durban, per Henriques J (the high court), which dismissed a point in limine to the effect
that the first respondent lacks locus standi to institute an application against the appellant
and the second to ninth respondents. The appeal is with the leave of the high court.

[2] At the commencement of the hearing in this Court the appellant was directed to
address us on the following issue:
‘Can it be said that the above order is final in effect or definitive of the rights of the parties or that
it disposes of any portion of the relief claimed and is thus appealable?’

[3] The appellant is Secona Freight Logistics CC, a logistics company occupying Erf
329 Cato Manor, in terms of a lease agreement it concluded with the owner of the land,
who is the second respondent, the Cato Manor Indian Cemetery and Crematorium
Association, represented by its trustees. The first respondent is Mr Koobendran Samie,
a resident of Yellowwood Park, bordering on Chatsworth and the south-west of Durban,

KwaZulu-Natal. He identifies himself as a person of Indian origin and a senior
environmentalist with the Environmental Planning and Climate Protection Department of
the third respondent, the eThekwini Metropolitan Municipality. The second respondent is
the Cato Manor Indian Cemetery and Crematorium Association, represented by its
trustees, Mr Perumalsamy Chinnsamy Naicker NO, Mr Govindsamy Subramany Pillay
NO and Mr Soan Seebran NO. The third to the ninth respondents are cited as interested
parties, as part of the relief sought implicates them. All the respondents have filed notices
to abide the decision of this Court. The third respondent has filed an answering affidavit
only to take issue with the costs order sought against it despite not opposing the
application. The eighth respondent, Amafa aKwaZulu-Natali, responsible for the
preservation of heritage sites in the province of KwaZulu-Natal, filed an affidavit in the
high court to join issue with the appellant and the second respondent in relation to the
point in limine and opposed the relief sought.

[4] In order to understand the context in which the order was made, it is necessary to
briefly summarise the history of the litigation between the parties. The first respondent
sought an order interdicting and restraining the appellant and the second to ninth
respondents from commencing any new, and continuing any existing activities on Erf 329
Cato Manor (the site), and for the imposition of certain duties and obligations on them to
act as mandated in terms of several statutes, including the National Heritage Resources
Act 25 of 1999 (Heritage Act), the National Water Act 36 of 1998 (NWA), and the National
Environmental Management Act 107 of 1998 (NEMA).

[5] The appellant operates a container depot for the handling, storage and repair of
freight containers. It has over 1000 trucks stored on the site. It is common cause between
the parties that: (a) prior to the lease agreement, entered into during 2011, and occupation
of the site, the site was a cemetery; (b) no tombstones or historic artefacts had been
destroyed and the graves were desecrated over the years; and (c) the appellant was not
aware that the site was originally a cemetery.

[6] The first respondent states in his founding affidavit that he filed the application in
his private capacity and in the public interest. He has known the site in issue from a young
age as a cemetery and an important heritage and historical site which reflects the history
and culture of the people of Indian origin in South Africa. His grandfather and relatives of
other community members were buried on the site. They used to visit the site to pay
respect to their loved ones until its gradual deterioration, closure and ultimate demolition
without any consultation with the community.

[7] He states further that over a period of time, commencing in 2009, he raised
concerns with the third respondent in relation to the manner in which the site was misused
and/or neglected. These concerns were not attended to. Sometime in 2017, he started a
petition which enjoyed the support of some community members who also had their family
members buried on the site. He alerted the South African Human Rights Commission as
well as the eighth respondent. When he noticed the site being cleared, he started a
Facebook page titled ‘Save Cato Manor Indian Cemetery’ to raise awareness about what
was happening on the site, which attracted many followers with relatives buried on the
site. Amongst them, Mr Dharmaraj Roonkan Naidoo filed a supporting affidavit to confirm
the family’s observation of the gradual deterioration and destruction of the site.

[8] In 2017, when his concerns were not addressed, he instituted a claim against the
appellant and the second to ninth respondents for the relief set out in para 4 above.

[9] The matter came before the high court as an opposed application. And on the first
day of the hearing, the appellant raised a point in limine that the first respondent did not
have locus standi to institute the application. It contended that, first, the first respondent
did not establish a clear right for interdictory relief. Second, he failed to allege that he was
acting in anyone’s interest. Third, the relief he sought was impermissible and/or
incompetent. Fourth, the first respondent, as an individual, has not alluded to, nor
demonstrated any personal interest in the matter and has no relationship with, or stake in
the second respondent or the site.

[10] To the contrary, the first respondent contended that he has locus standi to bring
the application in terms of s 38 of the Constitution,1 which allows him to pursue litigation
in the public interest, and also in terms of s 32 of NEMA.2 He contended further that such
legal standing persists, irrespective of the mandate and duties conferred on the third to
ninth respondents as organs of state.

[11] The parties agreed to a separation of issues in terms of rule 33(4) of the Uniform
Rules of Court to deal with the point in limine (in respect of locus standi of the first
respondent) first. They filed a practice notice to that effect. Although the court did not
expressly make an order in this regard, the application nonetheless proceeded on that
basis.

[12] The high court considered the point in limine first, as it was of the view that the
determination thereof may be dispositive of the whole matter. Relying on Giant Concerts
CC v Rinaldo Investments (Pty) Ltd and Others,3 the high court concluded, at paras 78
and 79 of its judgment, that s 38 of the Constitution, through the use of the word ‘anyone’,
warrants a wider interpretation of the persons identified in this section. In addition, s 32
of NEMA allows any person or group of persons to approach the court for any breach of

1 Section 38 of the Constitution provides:
‘Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of
Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration
of rights. The persons who may approach a court are –
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.’
2 Section 32 of NEMA provides:
‘(1)  Any person or group of persons may seek appropriate relief in respect of any breach or threatened
breach of any provision of this Act, including a principle contained in Chapter 1, or of any provision of a
specific environmental management Act, or of any other statutory provision concerned with the protection
of the environment or the use of natural resources—
(a) in that person’s or group of person’s own interest;
(b) in the interest of, or on behalf of, a person who is, for practical reasons, unable to institute such
proceedings;
(c) in the interest of or on behalf of a group or class of persons whose interests are affected;
(d) in the public interest; and
(e) in the interest of protecting the environment.’
3 Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others [2012] ZACC 28; 2013 (3) BCLR 251 (CC).

a statute concerned with the protection of the environment and the use of natural
resources. The high court aligned itself with the reasoning of Davis J in McCarthy and
Others v Constantia Property Owners’ Association and Others,4 that s 39(2) of the
Constitution requires a court, when interpreting legislation, ‘to promote the spirit, purport
and objects of the Bill of Rights. Accordingly, the high court held that ‘[a] finding that the
applicant has standing in this application provides for a generous approach to access to
courts and the protection of the environment’.

[13] Recently, this Court in Firm-O-Seal CC v Prinsloo & Van Eeden Inc and Another,5
described locus standi as follows:
‘Locus standi in iudicio is an access mechanism controlled by the court itself. Generally, the
requirements for locus standi are these: the plaintiff must have an adequate interest in the subject
matter of the litigation, usually described as a direct interest in the relief sought; the interest must
not be too remote; the interest must be actual, not abstract or academic; and, it must be a current
interest and not a hypothetical one. Standing is thus not just a procedural question, it is also a
question of substance, concerning as it does the sufficiency of a litigant’s interest in the
proceedings. The sufficiency of the interest depends on the particular facts in any given situation.
The real enquiry being whether the events constitute a wrong as against the litigant.’6

[14] The issue before this Court is this: is the high court’s order on the point in limine
appealable to this Court? If the answer is in the negative, then the appeal must be struck
off the roll and the matter remitted to the high court to proceed as if rule 33(4) was never
invoked. I propose to deal with the failure of the appellant to file its notice of appeal and
the reinstatement of its appeal first.

[15] The appellant brought an application seeking condonation for the late filing of its
notice of appeal and reinstatement of its appeal that had lapsed. It is trite that condonation
may be granted if the interests of justice permit. Whether it should be granted depends
on the facts and circumstances of each case. The factors to consider when determining

4 McCarthy and Others v Constantia Property Owners’ Association and Others [1999] 4 All SA 1 (C); 1999
(4) SA 847 (C) at 854J.
5 Firm-O-Seal CC v Prinsloo & Van Eeden Inc and Another [2023] ZASCA 107 (SCA).
6 Ibid para 6.

whether to grant condonation include: the extent of the delay; the explanation for the
delay; the effect of the delay on the administration of justice and other litigants; the
importance of the issues to be raised in the appeal; the prospects of success; and the
nature of the relief sought. The interests of justice must be determined with reference to
all relevant factors.7

[16] In this regard, the following factors are relevant in this matter. The delay is
inordinate. One year and six months before the prosecution of this appeal. The
explanation provided by the appellant is that between April 2022 and May 2022 a natural
environmental disaster, including extreme flooding, struck the greater Durban area which
affected everything including the running of the courts. The courts systems were
dysfunctional. All these were vis major. The appellant was only provided with a court order
sometime towards the end of April 2022. The application for condonation is not opposed.
The parties have been referred to this Court by the high court on an issue that in the high
court’s view deserves this Court’s consideration. The prospects of success are evenly
balanced. Irrespective of the inordinate delay, it is in the interests of justice that
condonation be granted. Consequently, the application for condonation is granted and
the appeal is reinstated.

[17] I now revert to the issue before us. Counsel for the appellant submitted that the
order of the high court may be regarded as interlocutory, if it is considered that the high
court still had to determine other issues which it postponed sine die. However, the order
was appealable on at least three grounds. First, the appellant was granted leave to appeal
to this Court by the high court. Second, even if the high court was of the view that the
issue of locus standi is not res judicata, it would be bound to follow that order regardless
of the fact that it may change its mind along the way. He equated the issue of locus standi

7 Liesching and Others v S and Another [2016] ZACC 41; 2017 (4) BCLR 454 (CC); 2017 (2) SACR 193
(CC) para 14.

to that of an exception appealed against in TWK Agriculture Holdings (Pty) Ltd v Hoogveld
Boerderybeleggings Pty Ltd and others8.

[18] Counsel added a further string to his bow to contend that, in any event, the high
court did not express any view on whether it relied upon s 38 (a) of the Constitution, that
related to acting in the person’s own interest, or under s 38(d) in the public interest. This
issue will remain unclear until clarified by this Court. That on its own makes the order of
the high court appealable. Finally, appealability is ultimately decided by recourse to the
interests of justice.

[19] In Cillers NO and Others v Ellis and Another,9 with reference to Zweni,10 this Court
stated:
‘It is trite that, generally speaking, a judgment or order is susceptible to appeal if it has three
attributes, namely:
“[T]he decision must be final in effect and not susceptible of alteration by the court of first instance;
second, it must be definitive of the rights of the parties; and it must have the effect of disposing of
at least a substantial portion of the relief claimed in the main proceedings.”’11

[20] Furthermore, this Court, citing with approval FirstRand Bank Limited t/a First
National Bank v Makaleng,12 stated:
‘As emphasised in Makaleng, these three attributes [the Zweni trinity] are not necessarily
exhaustive. Even where a decision does not bear all the attributes of a final order it may
nevertheless be appealable if some other worthy considerations are evident, including that the
appeal would lead to a just and reasonable prompt solution of the real issues between the parties.

8 TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings Pty Ltd and others8 (273/2022)[2023]
ZASCA 63 (5 May 2023).

9 Cillers NO and Others v Ellis and Another [2017] ZASCA 13 (SCA).
10 Zweni v Minister of Law and Order 1993(1) SA 523 (A) at 532I-533B.
11 Cillers para 15. See also Jacobs and Others v Baumann NO and Others [2009] ZASCA 43; 2009 (5) SA
432 (SCA); [2009] 3 All SA 398 (SCA) para 9; International Trade Administration Commission v Scaw South
Africa (Pty) Ltd [2010] ZACC 6; 2012 (4) SA 618 (CC) para 49; South African Broadcasting Corporation
SOC Ltd and Others v Democratic Alliance and Others [2015] ZASCA 156; [2015] 4 All SA 719 (SCA);
2016 (2) SA 522 (SCA) para 63; and FirstRand Bank Limited t/a First National Bank v Makaleng [2016]
ZASCA 169 (SCA) para 15.
12 FirstRand Bank Limited t/a First National Bank v Makaleng [2016] ZASCA 169 (SCA).

Furthermore, the interests of justice may be a paramount consideration in deciding whether a
judgment is appealable.’13

[21] In United Democratic Movement and Another v Lebashe Investment Group (Pty)
Ltd and Others,14 the Constitutional Court stated:
‘Whether an interim order has final effect or disposes of a substantial portion of the relief sought
in a pending review is merely one consideration. Under the common law principle as laid down
in Zweni, if none of the requirements set out therein were met, it was the end of the matter. But
now the test of appealability is the interests of justice, and no longer the common law test as set
out in Zweni.’15(Emphasis added.)

[22] On the facts of this matters as set out above, all indications point to one attribute:
the order of the high court is interlocutory. It is trite that an interlocutory order (which is a
preliminary or procedural order) is not appealable unless it disposes of any issue or any
portion of the issue in the main action. If, therefore, an order is made during the progress
of litigation which leaves the applicant's claim intact and not decided upon, it is prima facie
an order which does not have the force of a definitive order. The applicant is not barred
from proceeding with their application, as the order is merely incidental to the main
dispute.

[23] Applying these trite principles underscored by the authorities referred to earlier, it
is clear that the order of the high court does not possess any of the attributes articulated
in Zweni. Nor is it appealable on any other ground, including the interests of justice. It
follows that the matter is not appealable.

[24] The anomaly arose as a result of the high court’s decision to separate the issues
without considering whether it was appropriate to do so. In that way, it confined itself to
the single issue as it did. At para 3 of the order it postponed the application sine die. This

13 Cillers NO and Others v Ellis and Another [2017] ZASCA 13 (SCA) para 16. See also cases cited therein.
14 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [2022]
ZACC 34; 2022 (12) BCLR 1521 (CC); 2023 (1) SA 353 (CC).
15 Ibid para 43.

aspect, amongst others, indicates that the high court perceived that the matter will still
proceed on the dispute before it, even if differently constituted.

[25] The implication, which counsel conceded to, is that when the matter is re-enrolled
in the high court, it may change its mind on the locus standi of the first respondent in
respect of some of the respondents and/or the relief sought. This is evident from what it
stated in the judgment, where it is said at para 80 that ‘whether or not the applicant would
ultimately be successful with the relief which he seeks, is not an issue which I am required
to decide. I nevertheless suggest that the applicant gives some consideration to
amending the relief sought, and to also possibly give consideration to approaching an
organisation such as ProBono.org or the Bar Council to appoint a representative to assist
him in amending the relief, and pursuing the application’. The above drives home the
point that the high court was alive to the fact that what it had decided, namely, the locus
standi point in limine, was not dispositive of the whole matter.

[26] In the result, counsel for the appellant was constrained to concede that this case
fell squarely within the Zweni trinity and reliance cannot be placed on ‘the interest of
justice’. And that the appeal was premature. The issue at stake, locus standi, can simply
not be equated to that raised in TWK, the exception, as a matter of principle.

[27] Rule 33(4) if not appropriately applied, without embarking upon an enquiry as
postulated in Theron and Another NNO v Loubser NO and Others,16 results in a
proliferation of piecemeal appeals; a principle which the high court seems to have
overlooked. To entertain an appeal at this stage offends against the jurisprudence of this
Court.

[28] There is a further principle which the high court seems to have overlooked; leave
to appeal should be granted only when there is a sound and rational basis for the
conclusion that there are prospects of success on appeal. In the light that the appellant

16 Theron and Another NNO v Loubser NO and Others [2013] ZASCA 195; [2014] 1 All SA 460 (SCA); 2014
(3) 323 (SCA) at 330-332.

failed to prove that the first respondent did not have locus standi, I do not think there was
a reasonable prospect of an appeal to this Court succeeding, or that there was another
compelling reason to hear an appeal as envisaged in s 17 of the Superior Courts Act 10
of 2013.17 In the result, the parties were put through the inconvenience and expense of
an appeal without any merit.

[29] Lastly, it bears mentioning this Court’s disapproval with the disturbing trend of
well-resourced litigants, such as the appellant, using apparent ‘Stalingrad litigation tactics’
to prolong ultimate relief sought in the courts and continue with ‘business as usual’. This
is clear herein where the matter is kept in abeyance as a result of this litigious toing-and-
froing caused by the appeal on a point in limine, when the real dispute could have been
long since resolved. Courts ought to be more circumspect and alert when parties seek to
invoke rule 33(4). The rule is actually for the convenience of the court and to avoid delays
in finalising matters expeditiously.

[30] In regard to the issue of costs, all the respondents did not oppose the application
for leave to appeal. They filed notices to abide the decision of this Court. Consequently,
and as counsel for the appellant acknowledged, it would not be fair to mulct any of them
with costs.

[31] In the result, the following order issues:
The application for condonation for the late filing of the notice of appeal is granted
and the appeal is reinstated, with no order as to costs.
The appeal is struck off the roll, with no order as to costs.

17 Section 17 of the Superior Courts Act 10 of 2013 provides in relevant parts:
‘(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that –
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including conflicting
judgments on the matter under consideration.’

___________________
B C MOCUMIE
JUDGE OF APPEAL

Appearances

For the appellant:

M E Stewart
Instructed by:

Omar & Associates, Durban
Honey Attorneys, Bloemfontein

All the respondents abide the decision of this Court

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
22 December 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Secona Freight Logistics CC v Samie and Others (1074/2022) [2023] ZASCA 183 (22
December 2023)
Today, the Supreme Court of Appeal (SCA) struck an appeal off the roll, with no order as to
costs. The appeal was against an order of the KwaZulu-Natal Division of the High Court,
Durban, per Henriques J (the high court), which dismissed a point in limine to the effect that
the first respondent lacked locus standi to institute an application against the appellant and
the second to ninth respondents.

The appellant was Secona Freight Logistics CC, a logistics company occupying Erf 329 Cato
Manor, in terms of a lease agreement it concluded with the owner of the land, who was the
second respondent, the Cato Manor Indian Cemetery and Crematorium Association,
represented by its trustees. The first respondent was Mr Koobendran Samie, a resident of
Yellowwood Park, bordering on Chatsworth and the south-west of Durban, KwaZulu-Natal. He
identifies himself as a person of Indian origin and a senior environmentalist with the
Environmental Planning and Climate Protection Department of the third respondent, the
eThekwini Metropolitan Municipality. The second respondent was the Cato Manor Indian
Cemetery and Crematorium Association, represented by its trustees, Mr Perumalsamy
Chinnsamy Naicker NO, Mr Govindsamy Subramany Pillay NO and Mr Soan Seebran NO.
The third to the ninth respondents were cited as interested parties, as part of the relief sought
implicated them. All the respondents filed notices to abide the decision of the SCA. The third
respondent filed an answering affidavit only to take issue with the costs order sought against
it despite not opposing the application. The eighth respondent, Amafa aKwaZulu-Natali,
responsible for the preservation of heritage sites in the province of KwaZulu-Natal, filed an
affidavit in the high court to join issue with the appellant and the second respondent in relation
to the point in limine and opposed the relief sought.

The facts of the matter were as follows. The first respondent sought an order interdicting and
restraining the appellant and the second to ninth respondents from commencing any new, and
continuing any existing activities on Erf 329 Cato Manor (the site), and for the imposition of
certain duties and obligations on them to act as mandated in terms of environmental statutes.
The appellant operated a container depot for the handling, storage and repair of freight
containers on the site.

The matter came before the high court as an opposed application. And on the first day of the
hearing, the appellant raised a point in limine that the first respondent did not have locus standi

to institute the application. To the contrary, the first respondent contended that he had locus
standi to bring the application in terms of s 38 of the Constitution, which allowed him to pursue
litigation in the public interest, and also in terms of s 32 of the National Environmental
Management Act 107 of 1998 (NEMA). The parties agreed to a separation of issues in terms
of rule 33(4) of the Uniform Rules of Court to deal with the point in limine (in respect of locus
standi of the first respondent), first.

The issue before the SCA was whether the high court’s order on the point in limine was
appealable.

The SCA found that on the facts of this matters all indications pointed to one attribute: the
order of the high court was interlocutory. The SCA found further that it was clear that the order
of the high court did not possess any of the attributes articulated in Zweni v Minister of Law
and Order 1993 (1) SA 523 (A). Nor was it appealable on any other ground, including the
interests of justice. It followed that the matter was not appealable.

The SCA found that the anomaly arose as a result of the high court’s decision to separate the
issues without considering whether it was appropriate to do so. In that way, it confined itself
to the single issue as it did. At para 3 of the order it postponed the application sine die. This
aspect, amongst others, indicated that the high court perceived that the matter would still
proceed on the dispute before it, even if differently constituted. The SCA found that the high
court was alive to the fact that what it had decided, namely, the locus standi point in limine,
was not dispositive of the whole matter.

The SCA cautioned that rule 33(4) if not appropriately applied, resulted in a proliferation of
piecemeal appeals; a principle which the high court seemed to have overlooked. The SCA
thus held that to entertain an appeal at this stage offended against its jurisprudence.

~~~~ends~~~~