Tag Archives: Eastern Cape High Court

Sarrahwitz v Maritz NO and Another

Posted on by
Reply
Case No. Lower Court Judgments Hearing Date
CCT 93/14 Eastern Cape Division, Grahamstown 7 Feb. 2013 10 Nov. 2014

By Duncan Wild on 1 November 2014

The applicant in this case, Ms Virginia Sarrahwitz seeks a declaration of unconstitutionality of the common law position that immovable property which had been sold but not yet transferred to the purchaser prior to the seller’s insolvency, vests in the trustee of the seller’s insolvent estate. If the trustee does not honour the contract of sale and transfer the property, the purchaser is left only with a concurrent claim against the insolvent estate.

Continue reading →

Khohliso v The State and Another

Posted on by
Reply
Case No. Lower Court Judgments Hearing Date
CCT 12/14 Eastern Cape High Court, Mthatha 12 Dec. 2013 21 Aug. 2014

By Duncan Wild on 4 August 2014

This case concerns whether the High Court’s finding that sections 13(c) and 84(13) of the Environmental Conservation Decree No 9 of 1992 (“the Decree“) were unconstitutional. The Decree was promulgated by the then President of the Republic of the Transkei on 24 July 1992, when the Transkei was still a sovereign independent state. In the remainder of the Eastern Cape Province that Nature and Environmental Conservation Ordinance 19 of 1974 (“the Ordinance“) applies.  The Constitutional Court is faced with two questions: the first is a jurisdictional one, and depends upon whether the Decree is a provincial act, as if it is not provincial then the Constitution does not require the Constitutional Court to confirm its invalidity. The second question is whether the relevant sections of the Decree are unconstitutional in that they provide a different level of liability within the Transkei to the liability imposed under the Ordinance in the remainder of the Eastern Cape.  Continue reading →

Mdodana v Premier of the Eastern Cape and Others

Posted on by
Reply
Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 85/13 Eastern Cape High Court, 13 Jun. 2013 13 Nov. 2013 25 Mar. 2014  Dambuza AJ  Unanimous

By Duncan Wild on 12 April 2014

In this case certain sections of the Pounds Ordinance, no 18 of 1938 (“the Ordinance“) which deals with the impoundment of livestock are challenged on various grounds, including its violation of the rights to equality, against the arbitration deprivation of property, to just administrative action and to the right of access to courts.

The Ordinance provides for the establishment of municipal pounds and the appointment of poundmasters. It provides that stray animals found on private property may be sent by the owner of that property to a pound, and for the impoundment of unattended animals found in public places.

The High Court found the Ordinance to be invalid, and the decision went for confirmation to the Constitutional Court.  The Constitutional Court, however, in a unanimous decision authored by Dambuza AJ, found that the as the Ordinance did not amount to a “provincial act”, the High Court’s finding of invalidity did not require confirmation by the Constitutional Court to be effective.  In the Eastern Cape then, the High Court’s order of invalidity stands, but not in the Western Cape and Northern Cape, the Constitutional Court however ordered that its decision be delivered to the Premier’s of the Western Cape and Northern Cape.

Continue reading →

Member of the Executive Council for Health in the Eastern Cape and Another v Kirland Investments (Pty) Limited t/a Eye & Laser Institute

Posted on by
Reply
Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 7/13  Eastern Cape High Court
SCA, 16 May 2013		 12 Nov. 2013 25 Mar. 2014 Cameron J  7-3

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 →

Ngqukumba v Minister of Safety and Security and Others

Posted on by
Reply
Case No.  Lower Court Judgments  Hearing Date
 CCT 71/13 Eastern Cape High Court, 20 Oct. 2011
SCA, 31 May 2013		 14 Nov. 2013

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 →