not done so. It was a common cause that the administration of s 39 was vested in the first
respondent.
At the commencement of the hearing of the application the court was informed that an agreement
had been reached between the applicants and the second and third respondents who terminated
the litigation between the applicants and those parties. The first respondent applied in limine for
the recusal of the presiding Judge on the grounds, that he was the occupier or owner of a cottage
on the wild coast. It was contended that this fact could cause the first respondent reasonably to
suspect that the presiding Judge would be biased against the first respondent. The presiding Judge
refused the application stating that he was neither a member of the cottage owners association nor
of the wildlife society. He was of the opinion that were his opinion of the cottage in question
illegal of terms of the Decree, the mandamus sought by appellants would obviously be inimical to
his own interests. The fact that he was the occupier of the cottage of the wild coast could not in
any way give rise to a reasonable apprehension of bias on his part.
After initially contesting the applicants’ locus standi the first respondent conceded this issue on
the basis that the provisions of s 7(4)(b) read with s 29 of the constitution of the republic of South
Africa Act 200 of 1993. The court remarked, obiter that there was much to be said for the view
that in circumstances where the locus standi afforded to persons by S.7 of the constitution was not
applicable and when a statute imposed an obligation upon the state to take certain measures in
order to protect the environment in the interests of the public then a body such as the first
applicant with its main objective being to protect environmental conservation in South Africa
should have locus standi at common law to apply for an order compelling the state to comply
with its obligations in terms of such statute. One of the principle objectives often raised against
the adoption of a more flexible approach to the problem of locus standi was that the floodgates
would thereby be opened giving rise to an uncontrollable torrent of litigation. It was not certain
that to afford locus standi to a body such as the first applicant in circumstances such as these
would open the floodgates to a torrent of frivolous litigation against by busybodies. Neither was it
certain given the exorbitant costs of Supreme Court litigation that should the law be so adapted,
cranks and busybodies would flood the courts with frivolous applications against the state. Should
they be tempted to do so an appropriate order of costs would soon inhibit their litigation ardour. It
might well be that the time has arrived for a re examination of the common law rules of standing
in environmental matters involving the state and for an adaptation of such rules to meet the ever
changing needs of society.
As regards the merits of the application for a mandamus the first respondent’s opposition to the
application rested largely upon the fact that there was in existence a task group, which had been
established to tackle the issue. The court held however that the task group was a non statutory
advisory body of uncertain nature and duration whose actions had in any event fallen short of
establishing that the provisions of s 39(2) of the Decree were being enforced by first respondent.
The court held accordingly that the applicants were entitled to an order that first respondent
enforce the provisions of s 39(2) of the decree.
The following decided cases were referred to in the judgement of the court: Bamford v. Minister
of community Development and state Auxiliary services 1981 (3) SA 1054 Bromley London
Borough Council v Greater London council and another [1982] All ER 129 (CA) BTR
Industries South Africa limited and others v Metal and Allied Workers’ Union and another
1992 (3) SA 673 (A). Executive Club, Western Cape legislature and Others v President of the
Republic of South Africa and others 1995 (4) SA 877 (CC) (1995) (10) BCLR 1289).