Author Archives: duncanwild2013

The Association of Regional Magistrates of Southern Africa v The President of the Republic of South Africa and Others

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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 case is an application to confirm an order of invalidity of the decision by the Independent Commission for the Remuneration of Public Office Bearers published by the President on 26 November 2010 that increased the remuneration of public officer bearers, including Regional Magistrates and Regional Court Presidents (“the Magistrates“) by 5% backdated to 1 April 2010.The decision was challenged in the High Court on the basis that: (1) due to the effect of inflation the “increase” was in fact a decrease, which was impermissible; (2) the Magistrates were not given adequate opportunity to make representations prior to the President’s decision; (3) the President adopted a “one-size-fits-all” approach to the increase without differentiating between different categories of office bearers as required by the Remuneration Commission Act; and (4) the President did not take into account relevant considerations, was unreasonable and irrational.

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 →

Rademan v Moqhaka Municipality and Others

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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 →

Agri South Africa v The Minister of Minerals and Energy

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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 →

Zimbane Community v King Sabata Dalindyebo Municipality and Others Kwandile Community v King Sabata Dalindyebo Municipality and Others

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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 →

eThekwini Municipality v Ingonyama Trust

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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 →

Hattingh and Others v Juta

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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 →

Mkebe and Another v Absa Bank Limited and Others

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 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.

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 →