Tag Archives: KwaZulu-Natal High Court

Savoi and Others v National Director of Public Prosecutions and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 71/13 Kwazulu-Natal High Court, 17 May 2013 11 Nov. 2013 20 Mar. 2014  Madlanga J  Unanimous

By Duncan Wild and Greg Palmer on 23 March 2014

This case involves a constitutional challenge to certain sections of the Prevention of Organised Crime Act 21 of 1998 (“POCA“). Some of the sections are predicated on the definitions (also challenged) in POCA of “pattern of racketeering activity” and “enterprise” and which the applicants contend are unconstitutional, invalid and void for vagueness. Chapter 2 of POCA is also challenged on the basis that it operates retrospectively in violation of section 35(3)(1) of the Constitution and the Rule of Law, and section 2(2) of POCA is said to violate the fair trial rights of an accused.

The Constitutional Court, in an unanimous judgment authored by Justice Madlanga, and concurred in by Moseneke ACJ, Skweyia ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J and Zondo J, dismissed these challenges finding that the impugned sections of POCA were defensible.

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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 →

Turnbull-Jackson v Hibiscus Coast Municipality and Others

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 Case No.  Lower Court Judgments  Hearing Date
 CCT 104/13 KwaZulu-Natal High Court, 26 Sep. 2012 
 4 Feb. 2014

By Michael Dafel on 27 January 2014

This matter arises out of a decision of the Hibiscus Coast Municipality to approve building plans submitted by Pearl Star Investments who seeks to develop their property for commercial gain.  Adjacent to the developer’s property is Mr Turnbull-Jackson’s property.  Mr Turnbull-Jackson is aggrieved by the approval of the building plans as he alleges that the building will cut off his ocean view causing his property value to decrease.

Mr Turnbull-Jackson sought to have the approved building plans set aside in the Pietermaritzburg High Court on various grounds.  The application was unsuccessful, and the Supreme Court of Appeal refused leave to appeal. Continue reading →

KwaZulu-Natal Joint Liaison Committee v Member of the Executive Council Department of Education, KwaZulu-Natal and Others

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 60/12 KwaZulu-Natal High Court, 4 Oct. 2011 22 Nov. 2012 25 Apr. 2013 Cameron J. 6-4

By Duncan Wild on 25 April 2013

The KwaZulu-Natal Joint Liaison Committee (“”the Committee“) is an association of independent schools that describe themselves as impoverished and dependent on State subsidies.  The Committee brought the case on the basis that the KwaZulu-Natal Department of Education (“the Department“) issued a notice in September 2008 setting out “approximate” subsidies for the 2009/2010 year.  The subsidies actually paid out were on average 30% less than stipulated in the notice.

The question the Constitutional Court had to determine is whether issuing the notice, against a background of payments in previous years that did align with the amounts set out in the notices, created a binding obligation to pay the amounts set out in the notice.

A secondary question, in part argued by the amicus, the Centre for Child Law, is that bearing in mind the right to basic education, the issuing of the notice created a legitimate expectation amongst the schools that the subsidies would not be significantly reduced when paid.

In the main judgment authored by Justice Cameron (and concurred in by Moseneke DCJ, Froneman J, Khampepe J, Skweyiya J and Yacoob J), it was held that the notice did not give rise to a contractual obligation.  The notice did, however, find that once a public official had made a public statement of a promise to pay specified amounts, that amount could not be unilaterally reduced after the due date for payment. The Constitutional Court therefore overturned the High Court decision and ordered the Department to pay the approximate amounts specified in the 2008 notice.  Continue reading →

S v Nabolisa

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT105/12

 KwaZulu-Natal High Court, 4 May 2011
SCA, 1 Oct. 2012		 7 Mar. 2013

 12 Jun. 2013 Jafta J. 7-3

Mr Frank Nabolisa was convicted, along with his co-accused Mrs Cheryl Cwele, of dealing in dangerous dependence-producing drugs.  He was sentenced to 12 years imprisonment, and on appeal the SCA upheld his conviction and increased his sentence to 20 years. Mrs Cwele did not appeal.

Mr Nabolisa alleges in his appeal against both his sentence and conviction on the following bases: (1) the High Court and SCA infringed his right to a fair trial by not allowing him to present certain evidence; (2) the High Court and SCA erred in interpreting the Drug Trafficking Act 140 and 1992 to apply to a situation where the drugs in question were not collected nor imported into South Africa (the alleged trafficking happened in Brazil); and (3) the SCA is not empowered to increase a sentence where the State has not appealed the sentence imposed by the High Court.

On the third point, the majority of the Constitutional Court, in a judgment authored by Justice Jafta (in which Chief Justice Mogoeng and Justices Froneman, Khampepe, Mhlanta AJ, Nkabinde and Zondo concurred) found that without a formal notice of appeal by the State against the sentence imposed, the State cannot merely notify the court of its appeal against the sentence in written argument before the appeal court. Without such a formal appeal in accordance with section 316 of the Criminal Procedure Act, the issue was not properly before the SCA, and hence the increase in Mr Nabolisa’s sentence should be set aside. The majority therefore set aside the sentence imposed by the SCA, reinstating the 12 year sentence imposed by the High Court.

Justice Skweyiya wrote a minority judgment (in which Deputy Chief Justice Moseneke and Justice van der Westhuizen concurred) finding that there was a long established practice that the State could motivate an increase in sentence where the accused brings an appeal without the need to bring a formal cross-appeal. The minority found that the sentence issue had been fully argued in the SCA and Mr Nabolisa had adequate notice that the State would seek an increase in his sentence. According to the minority there was no irregularity or unfairness and so they would not have interfered with the SCA’s order to increase Mr Nabolisa’s sentence.

Download the judgment here.

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 →