Tag Archives: Supreme Court of Appeal

Rademan v Moqhaka Municipality and Others

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 41/12
 Free State High Court, 2 Sep. 2010
SCA, 1 Dec. 2011		 5 Feb. 2013
 26 Apr. 2013 Zondo J. Unanimous

Ms Olga Rademan lives within the Moqhaka Municipality (“the Municipality“), and refused to pay taxes and levies on her property.   She is a member of the Moqhaka Rate Payers’ and Residents’ Association to which she pays the amount due in respect of property rates. She had however paid the Municipality what was due for services, including electricity.  On 17 August 2009, Ms Rademan’s electricty supply was cut off by the municipality. 

Ms Rademan brought an urgent application before the Kroonstaad magistrate’s court for the restoration of her electricity supply and this was granted. The Municipality appealed to the High Court, and the High Court overturned the Magistrate’s decision finding that the Municipality was within its rights to disconnect Ms Rademan’s electricity. The Supreme Court of Appeal agreed with the High Court, and Ms Rademan appealed to the Constitutional Court. 

Justice Zondo, writing for the Court, held that the legislative framework applicable to the dispute at hand did allow the Municipality to amalgamate the different accounts for services rendered (like water, electricity, waste management) into one consolidated account.  The effect of this debt consolidation is that the non-payment of any portion of the account causes the ratepayer to be in arrears on the entire consolidated debt and the Municipality is resultantly entitled to reduce or withhold the delivery of services such as electricity.  In essence, the Constitutional Court held that a ratepayer cannot choose which of the municipal service they pay.  Accordingly, the Constiutional Court found that Ms Rademan’s account was in arrears, and that the Municipality was entitled to discontinue the supply of electricity to her household. Continue reading →

Agri South Africa v The Minister of Minerals and Energy

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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 →

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 →

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 →

Hattingh and Others v Juta

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 50/11 Stellenbosch Magistrate’s Court, 10 May 2010
Land Claims Court, 30 Mar. 2011
SCA, 30 May 2012		 6 Nov. 2012
 14 Mar. 2013 Zondo  J.  Unanimous

The Constitutional Court in a unanimous judgment authored by Zondo J upheld an eviction order that was granted to Mr Juta, the respondent, for the eviction of the three applicants.  The Court was called upon to interpret section 6(2)(d) of the Extension of Security of Tenure Act 62 of 1997 (“ESTA“), and determine whether that provision precludes the eviction of the applicants.  ESTA also seeks to provide a constitutional balance between two competing constitutional rights.  On the one hand, the owner’s right to property and, and the occupiers right of access to housing.  The parties agreed that the Mr Juta was entitled to the eviction order except in so far as section 6(2)(d) of ESTA is applicable.    Continue reading →