Pilane and Another v Pilane and Another

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

Motswagae and Others v Rustenburg Local Municipality and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
North West High Court, 15 Sep. 2011 27 Nov. 2012 7 Feb. 2012 Yacoob J. Unanimous

Ms Pontso Motswagae and the other applicants are residents of the Tlhabane Hostel, a female hostel situated on land owned by the North West Province under the jurisdiction of the Rustenburg Municipality.  The Rustenburg Municipality was obliged to redevelop hostels under its area of control, and as part of this process was undertaking certain construction work on land adjacent to the hostel.  The applicants brought an application for an interdict preventing the Municipality from carrying out this work and the Municipality brought a counter-application in order to prevent the applicants from interfering with the construction work.  The High Court dismissed the application on the basis that the applicants’ rights to privacy and the right to remain on the property would not be affected by the construction work, and if it was necessary for the applicants to leave the premises whilst work was carried out the Municipality had offered alternative accommodation.  The counter-application was also granted.

The Constitutional Court overturned the High Court decision and granted an interdict against the Rustenburg Municipality.  The Constitutional Court did so on the basis that the right to housing in Section 26(3) of the Constitution that bars anyone from being “evicted from their home, or hav[ing] their home demolished without an order of Court“, extends to the protection of an occupiers’ “peaceful and undisturbed occupation of their homes“.  

The Constitutional Court found that the construction work in this case was an interference with the applicants’ right to peaceful and undisturbed possession of the property, and therefore the Municipality would require a court order (or the consent of the occupiers) before carrying out the work. 

Download judgment here.