| Case No. | Lower Court Judgments | Hearing Date |
| CCT 08/13 | Labour Court, 18 Dec. 2009 Labour Appeal Court, 21 Sep. 2012 |
23 May 2013 |
By Michael Dafel on 16 April 2013.
This matter stems from a decision by the NPA to invoke section 17(5)(a)(i) of the Public Service Act 103 of 1994 (Act) to discharge the employment services of Mr Grootboom. In the Constitutional Court, Mr Grootboom seeks an order for that decision to be set aside. Continue reading
| Case No. | Lower Court Judgments | Hearing Date |
| CCT 136/12 | North Gauteng High Court, 9 Dec 2012 | 14 May 2013 |
Disclosure: Webber Wentzel is representing the appellants in this matter. Duncan Wild, Greg Palmer and Ben Winks have been involved in the instruction. The author of this post is independent of Webber Wentzel and has not been involved in the matter.
By Michael Dafel on 29 April 2013.
In this matter, members of the media have called on the Constitutional Court to determine the constitutionality of section 21(5) of the Refugees Act 130 of 1998. The provision states that ‘the confidentiality of asylum applications and the information contained therein must be ensured at all times’. The media argue that the provision is unconstitutional in so far as it entails a blanket ban on media access to Refugee Appeal Board (“the RAB“) hearings. They argue that the RAB must be vested with a discretion on whether, and on what conditions, to allow media access to an asylum hearing. The state, on the other hand, argues that a blanket ban is necessary to ensure the safety of asylum applicants as well as their family and witnesses.
This case stems out of a decision of the RAB to refuse members of the media access to the asylum appeal of Radovan Krejcir. Mr Krejcir is a fugitive from the Czech Republic, and since entering South Africa on a false passport in 2007 has been allegedly linked to crimes committed in South Africa. Owing to the refusal, the media approached the High Court for an order reviewing the RAB’s decision on the grounds that it should have interpreted section 21(5) as affording it a discretion to permit media access, or alternatively declaring section 21(5) unconstitutional to the extent that it doesn’t afford such a discretion. The North Gauteng High Court held that, although the provision limits the section 16 right to freedom of expression, this limitation is nonetheless reasonable and justifiable owing to the need to protect asylum applicants. The media’s interest in access to the hearings was substantially outweighed by the privacy and dignity interests of asylum seekers, the safety of their witnesses, and the integrity of the asylum system as a whole. Continue reading
| Case No. | Lower Court Judgments | Hearing Date |
| CCT 135/12 | South Gauteng High Court, 7 Dec. 2011
Supreme Court of Appeal, 30 Nov. 2012 |
9 May 2013 |
By Greg Palmer on 17 April 2013.
The case concerns whether it is the Provincial Department of Education or the governing body of a public school that has the power to determine the number of learners that the school may admit, and whether the Provincial Department of Education may override any determination in this respect by a governing body.
In 2010 the governing body of Rivonia Primary School (“the School“) had prepared an admission policy which was accepted by the Gauteng Department of Education (“the Department“). According to this policy the capacity of the school was set at 770 learners, of which 120 would be admitted to Grade 1.
The School had declined to admit a child to its Grade 1 class for the 2011 school year. The child was twentieth on the waiting list of applicants for admission. The mother of the child appealed to officials in the Department. A few weeks into the 2011 school year the head of the Department instructed the principal of the School to admit the child. Before the governing body of the School had made a decision on the instructions of the Head of Department, in a letter to the principal the Head of the Department purported to withdraw the principal’s admission function. Officials from the Department arrived at the School shortly thereafter to physically place the child in a classroom.
The relevant provision is Section 5(5) of the South African Schools Act 84 of 1996 (“the Act“), which provides that subject to the Act and any applicable provincial law, “the admission policy of a public school is determined by the governing body of such school.”
The South Gauteng High Court held, per Mbha J, that the Act does not appropriate to the school governing body the unqualified power to determine the school’s admission policy, and that the power to determine the maximum capacity of a public school in Gauteng vests in the Gauteng Department and not in the school governing body. It also held that the Member of the Executive for Education, Gauteng Province, has the power to intervene in the school governing body’s power to determine the admission policy of a public school.
The Supreme Court of Appeal, per Cachalia JA writing for a unanimous court, held that the governing body’s power under section 5(5) of the Act to determine the admission policy of a school necessarily includes the power to determine the school’s capacity. Any doubt of this is removed by section 5A of the Act, which allows the Minister of Education to prescribe minimum and uniform norms and standards for ‘the capacity of a school in respect of the number of learners a school can admit’, and then requires the school’s governing body to comply with these norms and standards when compiling the school’s admission policy.
The Supreme Court of Appeal overturned the order of the High Court (save for the order of costs in that court, and relief pertaining to the withdrawal of the School principal’s admission function), and declared that the instruction given to the School principal to admit the learner contrary to the school’s admission policy, and the placing of the learner in the school, were unlawful.
The Constitutional Court will have to decide the issue of whether on a proper interpretation of the provisions of the Act and other applicable legislation, the power to determine the capacity of a public school in Gauteng vests in the head of the Department or the governing body of the public school as part of its power to determine an admission policy for that public school.
It will also determine whether the head of Department’s decision to admit the learner to the School was lawful and justified.
| Case No. |
Lower Court Judgments | Hearing Date | Judgment Date | Majority Author |
Vote |
| CCT 91/12 |
North Gauteng High Court, 3 Sep. 2012 | 19 Feb. 2013 | 23 May 2013 | Nkabinde J. | Unanimous |
By Duncan Wild on 23 May 2013.
The High Court found the decision was not administrative action and so not reviewable under the Promotion of Administrative Justice Act, but was reviewable under the principle of legality. The High Court dismissed the first two grounds on which the decision was challenged, but found that the decision should have and did not differentiate between different categories of office bearer, and so was invalid in respect of the increase applicable to the Magistrates. Continue reading
| Case No. |
Lower Court Judgments | Hearing Date | Judgment Date | Majority Author |
Vote |
| CCT 41/12 |
Free State High Court, 2 Sep. 2010 SCA, 1 Dec. 2011 |
5 Feb. 2013 |
26 Apr. 2013 | Zondo J. | Unanimous |
Ms Olga Rademan lives within the Moqhaka Municipality (“the Municipality“), and refused to pay taxes and levies on her property. She is a member of the Moqhaka Rate Payers’ and Residents’ Association to which she pays the amount due in respect of property rates. She had however paid the Municipality what was due for services, including electricity. On 17 August 2009, Ms Rademan’s electricty supply was cut off by the municipality.
Ms Rademan brought an urgent application before the Kroonstaad magistrate’s court for the restoration of her electricity supply and this was granted. The Municipality appealed to the High Court, and the High Court overturned the Magistrate’s decision finding that the Municipality was within its rights to disconnect Ms Rademan’s electricity. The Supreme Court of Appeal agreed with the High Court, and Ms Rademan appealed to the Constitutional Court.
Justice Zondo, writing for the Court, held that the legislative framework applicable to the dispute at hand did allow the Municipality to amalgamate the different accounts for services rendered (like water, electricity, waste management) into one consolidated account. The effect of this debt consolidation is that the non-payment of any portion of the account causes the ratepayer to be in arrears on the entire consolidated debt and the Municipality is resultantly entitled to reduce or withhold the delivery of services such as electricity. In essence, the Constitutional Court held that a ratepayer cannot choose which of the municipal service they pay. Accordingly, the Constiutional Court found that Ms Rademan’s account was in arrears, and that the Municipality was entitled to discontinue the supply of electricity to her household. Continue reading
| Case No. | Lower Court Judgments | Hearing Date | Judgment Date | Majority Author | Vote |
| CCT 80/12 | North Gauteng High Court, 28 Apr. 2011 SCA, 31 May 2012 |
8 Nov. 2012 | 18 Apr. 2013 | Mogoeng CJ | Unanimous |
By Ben Winks on 19 April 2013
Background
The Mineral and Petroleum Resources Development Act of 2002 (the MPRDA) entered into force on 1 May 2004 and fundamentally reformed the mineral rights regime in South Africa. Previously, under the Minerals Act of 1991 and its predecessors, minerals were owned by private parties, and could be exploited or not exploited by them as they saw fit, subject to state regulation. The MPRDA, however, provides that all minerals are the common heritage of the people of South Africa, and that the state, as the custodian of these resources for the benefit of all South Africans, may grant, refuse and administer mineral rights and charge royalties for their exercise (Section 3).
To ensure security of tenure and minimise disruption in the mining industry, the MPRDA introduced detailed transitional arrangements as a bridge between the old order and the new (Schedule 2). Thus, from 1 May 2004: the holders of old order mining rights had five years to apply for new order mining rights; the holders of old order prospecting rights had two years to apply for new order prospecting rights; and the holders of unused old order rights (rights to minerals in respect of which no prospecting or mining had yet commenced) had one year to apply for new order prospecting or mining rights.
Before the MPRDA entered into force, Sebenza Mining held coal rights on and under certain farms, but it was wound up before conducting any prospecting or mining. These coal rights were thus “unused old order rights” under the transitional provisions of the MPRDA and, as Sebenza was not in a position to pay the fees to convert them into new order rights, they expired one year after the commencement of the MPRDA. Sebenza’s liquidators claimed compensation from the Department of Mineral Resources, contending that the coal rights had been expropriated. The Department rejected the claim, which was then ceded to Agri SA, who instituted action in the Pretoria High Court as a test case on the alleged expropriatory effects of the MPRDA.
The High Court held that expropriation requires deprivation of property and acquisition of substantially the same property by the state. The High Court found that the MPRDA not only destroyed pre-existing mineral rights but vested the substance of those rights in the state, and thus effected not only deprivation but expropriation of unused old order rights, for which just and equitable compensation was payable under section 25 of the Constitution.
The Minister of Mineral Resources (the Minister) appealed to the Supreme Court of Appeal (the SCA), which agreed broadly with the High Court’s definition of expropriation, but disagreed that the MPRDA had that effect. After a thorough exposition of the history of mining legislation in South Africa, the SCA held unanimously that the essential “right to mine”, from which all mineral rights are derived, had always been vested in the state, and allocated by it to private parties in differing degrees over the years. Thus, the SCA held that no blanket expropriation of mineral rights had been brought about by the MPRDA, but that it remained possible that a specific holder of old order mineral rights might be able to prove that the MPRDA had the effect of expropriating their particular mineral rights.
Agri SA applied to the Constitutional Court for leave to appeal, while the Minister sought leave for a conditional cross-appeal, which was ultimately immaterial.
The Constitutional Court decided unanimously that Agri SA should be granted leave to appeal, as it had raised important constitutional issues and had reasonable prospects of success, but that the appeal itself should be dismissed. The Court was divided, however, as to why the appeal should fail. Continue reading
| Case No. | Lower Court Judgments | Hearing Date | Judgment Date | Majority Author | Vote |
| CCT 55/12 CCT 52/12 |
Land Claims Court, 14 Dec. 2010 SCA, 1 Jun. 2012 |
13 Nov. 2012 | 28 Mar. 2013 | Moseneke DCJ | Unanimous |
Section 25(7) of the Constitution provides “a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of property or to equitable redress.”
The Restitution of Land Rights Act 22 of 1994 (“the Act“) is the Act of Parliament that delineates the scope of this right. It provides in section 34 that upon the application of a “national, provincial or local government body” the court may make an order that, “when any claim in respect of the land in question is finally determined, the rights in the land in question, or in part of the land, or rights in the land, shall not be restored to any claimant“.
In this case the Land Claims Court made such an order in respect of land claims by the Zimbane Community and Kwandile Community to land falling within King Sabata Dalindyebo Municipality (previously the Umtata Municipality) (“the Municipality“) and which is a mostly urbanized and developing area. The Land Claims Court found that it was in the public interest for the land rights not to be restored and that the public (or a substantial part thereof) would suffer substantial prejudice unless a section 34 order was granted. An order was therefore granted that no land within the Municipality’s jurisdiction could be restored to either of the claimants. The SCA effectively upheld this order.
The Constitutional Court, in a judgment authored by Deputy Chief Justice Moseneke, found the key issue to be whether the Land Claims Court had correctly determined the threshold of “public interest” and “substantial prejudice“. The Constitutional Court found that both the Land Claims Court and the SCA had erred in this evaluation. Of primary concern to the Constitutional Court was that the the Municipality had not put up sufficient evidence of what land, over which the claims where made, was in fact developed and urbanized. The land claims were explicitly limited to undeveloped land, and the Constitutional Court found that there was evidence that much of the land subject to the claims was not developed at all, but no evidence of what was developed and what was not. The Constitutional Court noted that the Municipality had not provided a survey of the physical limits and features of Mthatha, nor had it indicated what land contained key infrastructure or was ear-marked for development. Continue reading
| Case No. | Lower Court Judgments | Hearing Date | Judgment Date | Majority Author | Vote |
| CCT 80/12 | KwaZulu-Natal High Court, 23 Dec. 2010 SCA, 1 June 2012 |
12 Feb. 2013 | 28 Mar. 2013 | Jafta J. | Unanimous |
The Ingonyama Trust (“the Trust“) took over ownership of various land that had been held, prior to 1994, by the Government of KwaZulu Natal “for the benefit, material welfare and social-well-being of the [designated] tribes and communities“. The question before the Constitutional Court is whether the Rating of State Property Act 79 of 1984 (“the Rating Act“), which exempts “State property…held by the State in trust for inhabitants of the area of jurisdiction of a local municipality” from paying rates to any local authority, applies to this land. In other words, whether the Ingonyama Trust can be considered “the State” for the purposes of the Ratings Act.
As a preliminary point though, the Constitutional Court considered the lateness of the eThekwini Municipality’s (“the Municipality’s“) application for leave to appeal. The SCA delivered its judgment on 1 June 2012, but the Municipality’s application for leave to appeal was lodged on 28 August 2012, more than two months late.
The Constitutional Court, in a unanimous judgment authored by Justice Jafta, considered the application primarily as a procedural one. The Constitutional Court decided whether it should accept the Municipality’s application for condonation of the late filing. It did so considering two elements, first whether there was an acceptable justification put forward for the late filing; and second, whether it was in the interests of justice in the circumstances to grant condonation. Continue reading
| Case No. | Lower Court Judgments | Hearing Date | Judgment Date | Majority Author | Vote |
| CCT 50/11 | Stellenbosch Magistrate’s Court, 10 May 2010 Land Claims Court, 30 Mar. 2011 SCA, 30 May 2012 |
6 Nov. 2012 |
14 Mar. 2013 | Zondo J. | Unanimous |
The Constitutional Court in a unanimous judgment authored by Zondo J upheld an eviction order that was granted to Mr Juta, the respondent, for the eviction of the three applicants. The Court was called upon to interpret section 6(2)(d) of the Extension of Security of Tenure Act 62 of 1997 (“ESTA“), and determine whether that provision precludes the eviction of the applicants. ESTA also seeks to provide a constitutional balance between two competing constitutional rights. On the one hand, the owner’s right to property and, and the occupiers right of access to housing. The parties agreed that the Mr Juta was entitled to the eviction order except in so far as section 6(2)(d) of ESTA is applicable. Continue reading
| Case No. |
Lower Court Judgments |
Hearing Date |
| CCT 107/12 | North Gauteng High Court, 1 Jun. 2011 | 14 Mar. 2013 |
By Duncan Wild on 2 February 2013
Issue
The Court will have to decide whether, in circumstances where a judgment was granted in the absence of the defendant that could allow those defendant’s home to be sold, the requirements to allow those defendants to have the judgment set aside (in a rescission application) and defend the claims should be changed or interpreted in favour of the person seeking to have the judgment overturned.
The Case
Mr Siphelo Mkebe and his wife Ms Nokuhle Mkebe (“the Mkebes“) had entered into a mortgage agreement over certain property with Absa. According to Absa they defaulted and Absa obtained a default judgment against the Mkebes. They then brought an application to rescind that judgment, but shortly before their hearing their attorneys withdrew, according to the Mkebes, because the attorneys had not received instructions. Mr Mkebe alleges that he attempted to attend at the hearing himself but could not find the court and the rescission application was dismissed.
A second application to rescind the dismissal of the first application was then brought in which the Mkebes alleged they were not in “wilful default” and that they had a reasonable explanation for the default (the withdrawal of their attorneys on the basis of a lack of instructions and the attempt to attend at the court) and that Absa had not complied with the National Credit Act 34 of 2005 (“NCA“) prior to obtaining judgment against them, so they had a reasonable prospect of success.
The alleged non-compliance related to the transmission of a notice in terms of section 129 of the NCA that must be sent prior to approaching a court to have the mortgaged property attached and sold. Absa does not deny that it had an agreement to send the section 129 notice to the Mkebe’s physical address under the agreement’s “domicilium” clause. But, Absa did not send the notice to this address, rather electing to send the notice by registered post to the Mkebe’s last known postal address. The Mkebes argue that this means the judgment should not have been granted against them, and so they have a bona fide defence to the claim by Absa, and so should succeed in the rescission application.
The High Court rejected both these arguments, saying first that a failure to instruct your attorneys was not sufficient excuse to justify not defending the action, and second that the Mkebe’s had not stated they had not received the 129 notice, just that it was sent to an address not agreed in the contract between the parties. The Supreme Court of Appeal refused to grant leave to appeal against the judgment.
ConCourtBlog 