Monthly Archives: September 2013

Occupiers of Portions 124 and 150 of the Farm Zandfontein 317JR v Brookway Property 30 (Pty) Ltd and Another

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 Case No. Lower Court Judgments Hearing Date Judgment Date
CCT 69/11 North Gauteng High Court, 30 Sep. 2010 30 Aug. 2012 TBA

This application for leave to appeal pertains to an eviction order for the removal of approximately 800 occupiers from privately owned land.  In the Constitutional Court, the occupiers applied for an order that the allocation of alternative accommodation, by the City of Tshwane, should be a precondition to their eviction.  The occupiers further sought an order requiring the City to compensate the landowner for their occupation.  The City did not oppose the application for leave to appeal.  It did however submit that it was unfair to expect municipalities to carry the cost of providing alternative accommodation, and that this burden rests also on the provincial and national spheres of government.

On 30 August 2012, the Constitutional Court postponed the application following the liquidation of the landowner.  Costs remain the only outstanding matter to be decided.

Ngewu and Another v Post Office Retirement Fund and Others v Post Office Retirement Fund and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 117/11 Application for direct access 7 Feb. 2013 7 Mar. 2013 Van der Westhuizen  J. Unanimous

The applicant, Ms Phumla Ngewu, challenged the Rules of Post Office Retirement Fund (“the Fund“) and the Pensions Funds Act 24 of 1956 (“the Act“) on the grounds that they do not allow for a share of a Post Office employee’s pension fund to be paid out to the employee’s spouse when there is a divorce.  The Pension Funds Act does contain a provision that entitles a former spouse of a member of a private pension fund registered under the Act to receive an immediate payment of a share of the member’s pension interest. The applicant claims that it is unfairly discriminatory that this provision does not apply to the Post Office Retirement Fund. Continue reading →

National Director of Public Prosecutions v Elran

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 56/12 South Gauteng High Court (Full Bench), 8 Mar. 2012 15 Nov. 2012 19 Feb. 2013 Cameron J. 5 – 4 (and 4 separate but concurring)

The Prevention of Organised Crime Act 121 of 1998 (“POCA“) allows the State to apply for the forfeiture of property that was used in the commission of a crime or is the proceeds of a crime under the Act.  Before the final forfeiture order is granted the State may approach a Court for a “preservation order” that prevents the owner of the property from removing the assets pending the forfeiture case.  The possible problem, that POCA recognizes, is that this preservation order may prevent the owner of the property from adequately providing for his living expenses or paying the legal expenses of defending the forfeiture action or the criminal charges he faces.  POCA therefore provides in section 44(1)(b) that a court may allow the person holding interest in the “property subject to the preservation order” to have reasonable living and legal expenses paid for from that property.  In order to qualify for such a dispensation the person must make a sworn statement of his interest in the property, and show that he cannot meet the expenses claimed out of any other property. Continue reading →

Motswagae and Others v Rustenburg Local Municipality and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
 CCT
42/12		 North West High Court, 15 Sep. 2011 27 Nov. 2012 7 Feb. 2012 Yacoob J. Unanimous

Ms Pontso Motswagae and the other applicants are residents of the Tlhabane Hostel, a female hostel situated on land owned by the North West Province under the jurisdiction of the Rustenburg Municipality.  The Rustenburg Municipality was obliged to redevelop hostels under its area of control, and as part of this process was undertaking certain construction work on land adjacent to the hostel.  The applicants brought an application for an interdict preventing the Municipality from carrying out this work and the Municipality brought a counter-application in order to prevent the applicants from interfering with the construction work.  The High Court dismissed the application on the basis that the applicants’ rights to privacy and the right to remain on the property would not be affected by the construction work, and if it was necessary for the applicants to leave the premises whilst work was carried out the Municipality had offered alternative accommodation.  The counter-application was also granted.

The Constitutional Court overturned the High Court decision and granted an interdict against the Rustenburg Municipality.  The Constitutional Court did so on the basis that the right to housing in Section 26(3) of the Constitution that bars anyone from being “evicted from their home, or hav[ing] their home demolished without an order of Court“, extends to the protection of an occupiers’ “peaceful and undisturbed occupation of their homes“.  

The Constitutional Court found that the construction work in this case was an interference with the applicants’ right to peaceful and undisturbed possession of the property, and therefore the Municipality would require a court order (or the consent of the occupiers) before carrying out the work. 

Download judgment here.