Tag Archives: Moseneke DCJ

Ferris and Another v Firstrand Bank Limited and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 52/13 South Gauteng High Court, 5 Oct. 2012 5 Nov. 2013 12 Dec. 2013  Moseneke ACJ  Unanimous

By Duncan Wild on 12 December 2013

The applicants, Destri Ferris and Soraya Ferris, entered a credit agreement with the Firstrand Bank Limited (“Firstrand“). They defaulted on their payments, and applied for debt review under section 86 of the National Credit Act 2005 (“NCA“). The debt counsellor proposed a debt restructuring which Firstrand refused. The matter was referred to the Magistrate’s Court, but then Firstrand terminated the review. Notice was not given to the Magistrate’s Court or the applicants of the termination.  The Magistrate’s Court, being unaware of the termination, ordered a debt restructuring. Firstrand instituted summons against the applicants, and after the applicants attorneys failed to comply with procedural steps in the litigation (without the knowledge of the applicants themselves), a judgment was taken against them in default.

When the applicants became aware of the judgment they applied to have the judgment rescinded, but this was refused. The applicants then appealed to Supreme Court of Appeal but leave to appeal was refused.

The Constitutional Court, in a unanimous judgment by Acting Chief Justice Moseneke (Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Van der Westhuizen J and Zondo J), found there was no basis to interfere with the SGHC’s decision. Firstrand was entitled to proceed to enforce the loan agreement under the National Credit Act as the applicants had breached the debt-restructuring order. The requirements for rescission of a judgment were therefore not met.

Download the judgment here.

Minister of Police and Others v Premier of the Western Cape and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 13/13 Western Cape High Court, 13 Jan. 2013 6 Aug. 2013 1 Oct. 2013 Moseneke DCJ  Unanimous

By Duncan Wild on 1 October 2013

The case involves the legality of the Premier of the Western Cape’s (“the Premier’s”) appointment of the O’Regan Commission into complaints related to inefficiency in the South African Police Service (“the SAPS“) stations in Khayelitsha, as well as the breakdown in relations between the SAPS operating in Khayelitsha and the Khayelitsha community (“the O’Regan Commission”).

On 24 August 2012, the Premier established the O’Regan Commission, appointing its chair, former Justice of the Constitutional Court, Catherine O’Regan, and Mr. Vusumuzi Pikoli as commissioners.

On 5 November 2012, the applicants, including the Minister of Police (“the Minister”), the National Commissioner of the SAPS (“the National Commissioner”) and the Western Cape Provincial Commissioner of the SAPS (“the Provincial Commissioner”) launched an application in two parts: first, seeking an interim interdict halting the operation of the O’Regan Commission, and specifically to prevent Commission from giving effect to subpoenas it had issued or to issue further subpoenas, pending the outcome of the second part; and second, seeking an order setting aside the establishment of the O’Regan Commission.

In the High Court, it was only the first part of the relief sought that the court had to decide, that is the interim relief pending a court’s final decision on the legality of the Premier’s establishment of the O’Regan Commission. In other words, the lawfulness of the appointment of the Commission was not directly before the court for decision. In the Constitutional Court, however, the argument was made by the Social Justice Coalition as amicus curiae that this matter involved a dispute between organs of state, it fell within the exclusive jurisdiction of the Constitutional Court in terms of section 167(4) of the Constitution. In addition, the applicants sought direct access and an order of invalidity in respect of the decision to appoint the O’Regan Commission.

The Constitutional Court agreed that the matter did fall within its exclusive jurisdiction to decide, and therefore considered whether the decision to appoint the O’Regan Commission was in fact inconsistent with the Constitution and invalid. 

The applicants challenged the legality of the O’Regan Commission on a number of grounds, including that the Premier: acted irrationally in appointing the Commission; did not comply with the Constitutional obligations of co-operative governance in appointing the Commission; did not engage with the relevant constitutional and statutory bodies before appointing the Commission; and usurped the powers of the police by empowering the Commission to issue subpoenas, including the power to subpoena police officials, as well as to investigate crimes. There were other grounds based on an alleged ulterior motive in appointing the Commission, and that appointing a judge as a commissioner was impermissible.

The High Court found that none of the grounds had merit and so therefore dismissed the application for interim relief seeking to halt the conduct of the O’Regan Commission.

The Constitutional Court, in a unanimous judgment authored by Deputy Chief Justice Moseneke (Chief Justice Mogoeng, Justices Cameron, Froneman, Jafta, Madlanga, Nkabinde, Skweyiya, Van der Westhuizen and Zondo, and Acting Justice Mhlantla concurring) dismissed the application and found that the decision was not inconsistent with the Constitution and invalid.  Continue reading →

Mazibuko, MP v Sisulu, MP and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 115/12 Western Cape High Court, 22 Nov. 2012 28 Mar. 2013 27 Aug. 2013 Moseneke DCJ  6-4

By Duncan Wild on 27 August 2013

The issue in this case is whether section 102(2) of the Constitution provides a minority of members in the National Assembly with a right to bring a motion of no confidence in the President, and if so whether the Rules of the National Assembly fail to give effect to that right.

This case was brought by Ms Lindiwe Mazibuko acting in her capacity as leader of the opposition in the National Assembly under section 57(2) of the Constitution.  On 8 November 2012, Ms Mazibuko gave notice of her intention to move a motion of no confidence in the President, in terms of section 102(2) of the Constitution.  After various internal processes occurred, the Speaker of Parliament determined that the motion could not be tabled for debate.  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 →