Author Archives: duncanwild2013

Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 94/13 Western Cape Division of the High Court,  21 Jun. 2012 27 Feb. 2014  Cameron J  Unanimous

By Duncan Wild on 16 March 2014

The case came before the Constitutional Court as an application for the confirmation of a an order by the Western Cape High Court which had found section of the Estate Agency Affairs Act 112 of 1976 (“EAAA“) and the Financial Intelligence Centre Act 38 of 2001 (“FICA“) to be constitutionally invalid. The sections, 32A of the EAAA and 45B of FICA afforded search and seizure powers to regulatory bodies.

The Estate Agency Affairs Board (“the Board“) regulates compliance with EAAA and was a supervisory body responsible for enforcing FICA compliance.  The Board suspected that the respondent, Auction Alliance (Pty) Ltd (“Auction Alliance“) had contravened both the EAAA and FICA and so attempted to conduct a search of Auction Alliance’s premises without a warrant under the challenged sections.  Auction Alliance refused to allow the inspectors from the board access, and instead brought this application, seeking to to prevent the Board from conducting the warrantless search, and to declare the relevant provisions invalid. It was agreed that in the interim the documents sought by the Board would be kept in the possession of KPMG pending the resolution of the litigation. The Board also brought a counter-application seeking that the High Court issue a search warrant allowing a search of Auction Alliance’s premises.  Continue reading →

Kubyana v Standard Bank of South Africa Limited

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 65/13 North Gauteng High Court, 8 Nov. 2012 7 Nov. 2013 20 Feb. 2014 Mhlantla AJ  Unanimous

By Duncan Wild on 20 February 2014

The applicant, Moshomo Kubyana (“Kubyana“), entered a credit agreement to finance the purchase of the car with the respondent, The Standard Bank of South Africa (“Standard Bank“). This agreement was subject to the National Credit Act 34 of 2005 (“NCA“).

When Kubyana defaulted on the agreement Standard Bank sent a notice of default to Kubyana by registered post under section 129 of the NCA. The notice was not collected and returned to Standard Bank. The High Court found that the NCA did not require personal service and allowed a credit provider to send the notice by registered post. Kubyana had not provided any explanation as to why the notice did not reach him, and in these circumstances the High Court could not refuse judgment based on non-compliance with the NCA.

The Constitutional Court, in a decision authored by Mhlantla AJ (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Madlanga J and Van der Westhuizen J concurring) found that Standard Bank had complied with its obligations under the NCA. In effect it found that the notice requirement under section 129 was important in order to bring the consumer’s attention to his or her rights, and to achieve resolution without the need to go to court.  However, what is required of the credit provider is to take those steps sufficient to bring the notice to the attention of a reasonable consumer.   Continue reading →

Johanna Malan v City of Cape Town

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Case No. Lower Court Judgments Hearing Date
CCT 143/13 Western Cape High Court, 22 April 2013 20 Feb. 2014

By Avani Singh on 19 February 2014

This is an application for leave to appeal against a decision of the Western Cape High Court (per Dolama J) (“the High Court“) that ordered the eviction of Johanna Malan (“Malan“).  The main issue for determination is whether the City of Cape Town (“the City“) was entitled to cancel Malan’s lease and seek her eviction, along with that of her children, from property owned by it and forming part of its sub-economic housing scheme. Continue reading →

Isabel Joyce Florence v The Government of the Republic of South Africa

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Case No. Lower Court Judgments Hearing Date
CCT 127/13 Land Claims Court, 4 Jun. 2013
SCA, 13 Sep. 2013		 18 Feb. 2014

By Duncan Wild on 23 March 2014

The primary question in this case is whether it is appropriate to use the consumer price index (“CPI“) to adjust past loss into present day monetary value for the purposes of financial restitution under the Restitution of Land Rights Act 22 of 1994 (“the Restitution Act“). A secondary question relates to whether a court can order the State to pay for construction of a memorial plaque as a form of symbolic relief. Continue reading →

Jabulani Zulu and 389 Others v Ethekwini Municipality and Others

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Case No. Lower Court Judgments Hearing Date
CCT 108/13 KwaZulu Natal High Court, 28 Mar. 2013 12 Feb. 2014

By Stuart Scott on 11 February 2014

The principal issue in this appeal is the constitutionality of a court order granted by Koen J in the High Court on 28 March 2013 (“the March 2013 order”).  The March 2013 order was obtained by the first respondent (“the MEC”) in relation to the second respondent (“the Municipality”) and the third respondent (“the Minister of Police”). Continue reading →

Mhlanganisweni Community v Minister of Rural Development and Land Reform and Others

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Case No. Lower Court Judgments Hearing Date
CCT 111/12 Land Claims Court, 19 Apr. 2012 11 Feb. 2014

By Michael Mbikiwa on 10 February 2014

This case concerns the meaning of “feasibility” in section 33(cA) of the Restitution of Land Rights Act 22 of 1994 (the “RLRA”) and, in particular, the circumstances in which restoration is a feasible method of restitution. Restitution of land rights under the RLRA can occur either by actual restoration of land, or by equitable redress. Equitable redress comprises the granting of a right in alternative state-owned land, the payment of compensation, or a combination of both. Continue reading →

Composition of the Court for the First Term

Aside

Chief Justice Mogoeng Mogoeng is on leave for the first term of 2014. Deputy Chief Justice Moseneke is Acting Chief Justice for this period, and Justice Skweyiya is Acting Deputy Chief Justice.

Justice Bess Nkabinde is on leave for the first two terms of 2014.  Justice Steven Majiedt of the Supreme Court of Appeal and Justice Nambitha Dambuza of the Eastern Cape Division of the High Court have been appointed as Acting Justices.

Cool Ideas 1186 CC v Christine Hubbard and Another

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Case No. Lower Court Judgments Hearing Date
CCT 99/13 Gauteng Division of the High Court, Johannesburg
SCA, 28 May 2013		 5 Feb. 2014

By Duncan Wild February 2014

The issue in this case involves the correct interpretation of section 10 of the Housing Consumers Protection Measures Act 95 of 1998 (“Housing Consumers Act“), and, second, whether a contravention of its provisions of the may be used to resist enforcing an arbitral award.  Continue reading →

The Minister of Defence and Military Veterans v Maomela Moreti Motau & Others

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 Case No.  Lower Court Judgments  Hearing Date
 CCT 133/13 Gauteng Division of the High Court, Pretoria 17 Feb. 2014

By Nurina Ally on 1 February 2014

The Constitutional Court has previously commented that the characterisation of a particular decision as being of an administrative nature is “something of a puzzle”.  In Motau, the Court is being asked to decipher one dimension of that puzzle.

The case concerns the scope of judicial review and raises the question of when conduct by an executive functionary should be characterised as administrative action. Continue reading →