Tag Archives: First Term 2013

Pilane and Another v Pilane and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT  46/12
 North West High Court, 30 Jun. 2011
 13 Sep. 2012
 28 Feb. 2013 Skweyiya J. 8-2

Mr Nyalala Pilane, the officially recognized Kgosi and the Traditional Council of the Bakgatla-Ba-Kgafela Traditional Community (“the Traditional Council“), obtained an order in the High Court against Mr Mmuthi Pilane and Mr R Dintwe to prevent them from holding meetings under the auspices of certain entities without their permission, from acting in contravention of statutes governing traditional leadership and representing themselves as a traditional authority.  

The Majority of the Constitutional Court overturned the decision of the High Court and set aside the interdict.  The Majority held that the requirements for an interdict had not been met, primarily on the basis that Mr Nyalala Pilane and the Traditional Council did not have rights to prevent Mr Mmuthi Pilane and Mr Dintwe from ” [o]rganising or proceeding with any meeting purporting to be a meeting of the Traditional Community or Motlhabe Tribal Authority without proper authorisation by either of the [respondents].”  Neither did they show that Mr Mmuthi Pilane or Mr Dintwe had or were likely to breach of the statutes governing traditional leadership. Finally, the Majority held that merely using the names “Bakgatla-Ba-Kautlwale” and “Bakgatla-Ba-Motlhabe” did not suggest that Mr Mmuthi Pilane or Mr Dintwe were claiming to be a traditional authority, but these names were merely “signifiers of the applicants’ ancestral lineage and their place of settlement“. 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.

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 →