Tag Archives: Mhlantla AJ

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 →

The Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape v Lagoon Bay Lifestyle Estate (PTY) LTD and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 41/13 Western Cape High Court, 31 Aug. 2011
Supreme Court of Appeal, 15 Mar. 2013		 20 Aug. 2013 20 Nov. 2013 Mhlantla AJ Unanimous

By Michael Dafel and Duncan Wild 

This matter pertains to the validity of a decision by the Western Cape provincial government to refuse a proposed development.  Lying at the heart of the matter is the constitutional inter-relationship between the provincial and municipal spheres of government and their powers to rezone and subdivide land.  The potential importance of the Constitutional Court’s decision in this matter lies in the fact that in the relationship between provincial and municipal power in deciding aspects of the same land development.

The Constitutional Court, in an unanimous decision authored by Acting-Justice Mhltantla, did not decide the issue of which level of government the Constitution gave the power to rezone or subdivide land, but did hold that under the applicable legislation the municipality was the competent authority to make the decision on subdivision, and the Provincial Minister the competent authority to decide on the rezoning application. Continue reading →

MEC for Education, Gauteng Province v The Governing Body of the Rivonia Primary School

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 135/12 South Gauteng High Court, 7 Dec. 2011
Supreme Court of Appeal, 30 Nov. 2012		 9 May. 2013 3 Oct. 2013 Mhlantla AJ 7-2

By Duncan Wild on 3 October 2013.

The case concerns whether it is the Provincial Department of Education or the governing body of a public school that has the power to determine the number of learners that the school may admit, and whether the Provincial Department of Education may override any determination in this respect by a governing body.

The Constitutional Court, in a judgment authored by Acting Justice Mhlantla with  Deputy Chief Justice Moseneke, Justices Froneman, Khampepe, Nkabinde and Skweyiya and Acting Justice Bosielo concurring, found that although the school governing body had the ability to determine the capacity of a school, a Provincial Department maintains ultimate control, and a school’s admission policy cannot inflexibly limit the discretion of the Head of Department. Continue reading →

Liebenberg NO and Others v Bergrivier Municipality

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 104/12 Western Cape High Court, 25 Aug. 2011
SCA, 1 Oct. 2012		 12 Mar. 2013 6 Jun. 2013 Mhlantla AJ. 7-2

Prior to the adoption of the interim Constitution in 1993, rural landowners did not have to pay rates to municipalities.  In 1993 the Local Government: Transition Act 209 of 1993 (“Transition Act“) was enacted to provide uniformity in local government throughout South Africa, and that every part of a province should fall within the jurisdiction of a local council.  Between 2001 and 2009, various farm owners within the Bergrivier Municipality refused to pay municipal rates.  Various specific issues were raised regarding different rates imposed in different years during that period, but in essence the Constitutional Court will have to determine whether the Municipality was empowered to impose the rates at the relevant time, and if so whether the Municipality did so within its powers.

In a judgment written by Acting Justice Mhlantla, the majority of the Constitutional Court (including Chief Justice Mogoeng, Deputy Chief Justice Moseneke and Justices Froneman, Nkabinde, Skweyiya and Zondo) found that section 10G(7) of the Transition Act empowered the Bergrivier Municipality to impose the rates for the 2006/2007 and 2008/2009 financial years.  In addition the majority found that the Municipality had substantially complied with the relevant statutory provisions in respect of the rates imposed between 2001 to 2005.  Continue reading →