Government of the Republic of Zimbabwe v Fick and Others

Case No. Lower Court Judgments  Hearing Date Judgment Date Majority Author Vote
CCT 101/12
North Gauteng High Court, 6 Jun. 2011
SCA, 20 Sep. 2012
 28 Feb. 2013  27 June 2013 Mogoeng CJ.  Unanimous

By Duncan Wild and Ben Winks on 29 June 2013.

This case concerns the recognition and enforcement of two judgments by the Tribunal of the Southern African Development Community (“SADC“) against Zimbabwe, and the consequent attachment of immovable property owned by Zimbabwe in South Africa.  As a sovereign state, Zimbabwe is generally immune from the jurisdiction of, and execution by, the domestic courts of other states.

The Constitutional Court found that Zimbabwe was not immune from the jurisdiction of the South African courts in respect of judgments of the SADC Tribunal, and that all the requirements for the recognition of a foreign judgement (the definition of which the Court extended to include international tribunals) had been met. Zimbabwe’s appeal was therefore dismissed with costs. Continue reading

Sigcau v The President of the Republic of South Africa and Others

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
Vote
CCT84/12

North Gauteng High Court, 12 Apr. 2012
21 Feb. 2013
13 Jun. 2013 The Court Unanimous

The case involves a challenge by Justice Mpondombini Sigcau to President’s Minutes published on 3 November 2012, under the by the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (“New Act“), that recognized Zanuzuko Tyelovuyo Sigcau as the King of the amaPondo after an investigation by a commission appointed in terms of the Traditional Leadership and Governance Framework Act 41 of 2003 (“Old Act“).

The issues involve whether the commission acted fairly, impartially and rationally, whether or not the decision it took was published within the necessary time, and whether the Constitution allows someone other than a traditional structure such as the Royal Family to determine who the King or Queen should be.  The High Court found that the Commission acted in accordance with its mandate, fairly and impartially and that the Constitution did not require only a traditional structure to be able to appoint a King or Queen.

The Constitutional Court in a unanimous judgment by the Court, constituting: Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J, found that President had purported to exercise powers not conferred on him under the New Act. In addition, due to material differences between the New and Old Acts, he could be said to have issued the notice under the Old Act. Therefore, the notice recognizing Zanuzuko Tyelovuyo Sigcau was set aside.

Download the judgment here.

Mayelane v Ngwenyama and Another (Women’s Legal Centre Trust as Amicus Curiae)

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
Vote
CCT 57/12 North Gauteng High Court, 24 Mar. 2010
SCA, 1 Jun. 2012
20 Nov. 2012 30 May 2013 Froneman J, Khampepe J and Skweyiya J. Unanimous
By Michael Dafel on 31 May 2013

In a matter that will in all likelihood prove significant for the future regulation of polygamous customary marriages in South Africa, the Constitutional Court, without invitation from the parties and without hearing argument, developed living customary law of the Xitsonga (Tsonga) community to include a requirement that the first wife must provide her consent for her husband to marry subsequent wives.  For the majority of the Court, this legal development was necessitated to ensure that customary practices are in conformity with Constitutional values. Continue reading

The Association of Regional Magistrates of Southern Africa v The President of the Republic of South Africa and Others

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
Vote
CCT 91/12
North Gauteng High Court, 3 Sep. 2012 19 Feb. 2013 23 May 2013 Nkabinde J. Unanimous

By Duncan Wild on 23 May 2013.

The case is an application to confirm an order of invalidity of the decision by the Independent Commission for the Remuneration of Public Office Bearers published by the President on 26 November 2010 that increased the remuneration of public officer bearers, including Regional Magistrates and Regional Court Presidents (“the Magistrates“) by 5% backdated to 1 April 2010.The decision was challenged in the High Court on the basis that: (1) due to the effect of inflation the “increase” was in fact a decrease, which was impermissible; (2) the Magistrates were not given adequate opportunity to make representations prior to the President’s decision; (3) the President adopted a “one-size-fits-all” approach to the increase without differentiating between different categories of office bearers as required by the Remuneration Commission Act; and (4) the President did not take into account relevant considerations, was unreasonable and irrational.

The High Court found the decision was not administrative action and so not reviewable under the Promotion of Administrative Justice Act, but was reviewable under the principle of legality.  The High Court dismissed the first two grounds on which the decision was challenged, but found that the decision should have and did not differentiate between different categories of office bearer, and so was invalid in respect of the increase applicable to the Magistrates.  Continue reading

Agri South Africa v The Minister of Minerals and Energy

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 80/12 North Gauteng High Court, 28 Apr. 2011
SCA, 31 May 2012
8 Nov. 2012 18 Apr. 2013 Mogoeng CJ Unanimous

By Ben Winks on 19 April 2013

Background

The Mineral and Petroleum Resources Development Act of 2002 (the MPRDA) entered into force on 1 May 2004 and fundamentally reformed the mineral rights regime in South Africa.  Previously, under the Minerals Act of 1991 and its predecessors, minerals were owned by private parties, and could be exploited or not exploited by them as they saw fit, subject to state regulation.  The MPRDA, however, provides that all minerals are the common heritage of the people of South Africa, and that the state, as the custodian of these resources for the benefit of all South Africans, may grant, refuse and administer mineral rights and charge royalties for their exercise (Section 3).

To ensure security of tenure and minimise disruption in the mining industry, the MPRDA introduced detailed transitional arrangements as a bridge between the old order and the new (Schedule 2).  Thus, from 1 May 2004: the holders of old order mining rights had five years to apply for new order mining rights; the holders of old order prospecting rights had two years to apply for new order prospecting rights; and the holders of unused old order rights (rights to minerals in respect of which no prospecting or mining had yet commenced) had one year to apply for new order prospecting or mining rights.

Before the MPRDA entered into force, Sebenza Mining held coal rights on and under certain farms, but it was wound up before conducting any prospecting or mining.  These coal rights were thus “unused old order rights” under the transitional provisions of the MPRDA and, as Sebenza was not in a position to pay the fees to convert them into new order rights, they expired one year after the commencement of the MPRDA.  Sebenza’s liquidators claimed compensation from the Department of Mineral Resources, contending that the coal rights had been expropriated.  The Department rejected the claim, which was then ceded to Agri SA, who instituted action in the Pretoria High Court as a test case on the alleged expropriatory effects of the MPRDA.

The High Court held that expropriation requires deprivation of property and acquisition of substantially the same property by the state.  The High Court found that the MPRDA not only destroyed pre-existing mineral rights but vested the substance of those rights in the state, and thus effected not only deprivation but expropriation of unused old order rights, for which just and equitable compensation was payable under section 25 of the Constitution.

The Minister of Mineral Resources (the Minister) appealed to the Supreme Court of Appeal (the SCA), which agreed broadly with the High Court’s definition of expropriation, but disagreed that the MPRDA had that effect.  After a thorough exposition of the history of mining legislation in South Africa, the SCA held unanimously that the essential “right to mine”, from which all mineral rights are derived, had always been vested in the state, and allocated by it to private parties in differing degrees over the years.  Thus, the SCA held that no blanket expropriation of mineral rights had been brought about by the MPRDA, but that it remained possible that a specific holder of old order mineral rights might be able to prove that the MPRDA had the effect of expropriating their particular mineral rights.

Agri SA applied to the Constitutional Court for leave to appeal, while the Minister sought leave for a conditional cross-appeal, which was ultimately immaterial.

The Constitutional Court decided unanimously that Agri SA should be granted leave to appeal, as it had raised important constitutional issues and had reasonable prospects of success, but that the appeal itself should be dismissed.  The Court was divided, however, as to why the appeal should fail. Continue reading