||Lower Court Judgments
||Western Cape High Court, 31 Aug. 2011
Supreme Court of Appeal, 15 Mar. 2013
|20 Aug. 2013
||20 Nov. 2013
By Michael Dafel and Duncan Wild
This matter pertains to the validity of a decision by the Western Cape provincial government to refuse a proposed development. Lying at the heart of the matter is the constitutional inter-relationship between the provincial and municipal spheres of government and their powers to rezone and subdivide land. The potential importance of the Constitutional Court’s decision in this matter lies in the fact that in the relationship between provincial and municipal power in deciding aspects of the same land development.
The Constitutional Court, in an unanimous decision authored by Acting-Justice Mhltantla, did not decide the issue of which level of government the Constitution gave the power to rezone or subdivide land, but did hold that under the applicable legislation the municipality was the competent authority to make the decision on subdivision, and the Provincial Minister the competent authority to decide on the rezoning application. Continue reading
By Duncan Wild
The respondents in the this matter are the trustee’s of the JJW Hendriks Trust (“the Trust“) that owned certain property in De Aar. In November 2003 the Trust sold the property to the first respondent, Lorraine Botha (“Botha“) and the parties entered an agreement in accordance with the Alienation of Land Act 68 of 1981 (“the Act“). Of particular relevance, the parties agreed that section 19 of the Act would apply to the agreement, this section provides that the seller my terminate the contract only if: she has notified the purchaser of a breach and called upon the purchaser to rectify the breach in no less than 30 days, and the purchaser has failed to rectify the breach. The agreement stipulated that the purchase price was to be R240,000 and would be paid in installments of R4,000 a month. Continue reading
||Lower Court Judgments
|| Eastern Cape High Court
SCA, 16 May 2013
|12 Nov. 2013
||25 Mar. 2014
By Duncan Wild on 28 September 2014
This is an application for leave to appeal against a judgment of the Supreme Court of Appeal (“SCA“), handed down on 16 May 2013. The matter involves the application of the maxim of functus officio. In addition, one of the central questions before the Constitutional Court is the extent to which the decision in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) applies to the facts of the matter, and whether the principle in Oudekraal needs to be developed or relaxed in certain instances. In particular, the principle that once an administrative decision is made it exists as a fact and has legal effect until it is set aside by a court in proceedings for judicial review.
The majority of the Constitutional Court, in a decision written by Cameron J, dismissed the appeal with costs. Continue reading
By Duncan Wild
In this case the appellant’s motor vehicle was seized by the police acting under the Criminal Procedure Act 51 of 1977 (“the Criminal Procedure Act“). After the vehicle was seized the police discovered that it did not comply with the National Road Traffic Act 93 of 1996 (“the National Road Traffic Act“). The High Court and Supreme Court of Appeal found that the vehicle had been seized unlawfully, but that as it would be unlawful for the appellant to be in possession of a vehicle that did not comply with the National Road Traffic Act, the court not order the return of the vehicle, until it complied with the law. The question before the Constitutional Court is whether it is correct, that despite an unlawful seizure of vehicle, the vehicle may not be returned to its owner if it is discovered that possession of the vehicle would be unlawful. Continue reading
During the fourth term Chief Justice Mogoeng and Justice Khampepe are on long leave. Acting Justices Nonkosi Mhlanta (for her third consecutive term as an acting justice) and Nambitha Dambuza (a judge of the Eastern Cape Division) have been appointed. Deputy Chief Justice Moseneke has been appointed as Acting Chief Justice, and Justice Skweyiya as Acting Deputy Chief Justice
Justice Johann van der Westhuizen is on a medical leave of absence for part of the term.
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