Tag Archives: Western Cape High Court

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 →

Patrick Lorenz Martin Gaertner and Others v The Minister of Finance and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 56/13 Western Cape High Court, 8 Apr. 2013 12 Sep. 2013 14 Nov. 2013 Madlanga J. Unanimous

This case involves a challenge to the sections of the Customs and Excise Act 91 of 1964 (“the Customs Act“) which empowers South African Revenue Service (“SARS“) officials to conduct certain searches without the need for a warrant.  

The Constitutional Court, a judgment authored by Madlanga J, in which the Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J concurred, found the provisions in question to be overbroad in that SARS officials were “given far-reaching powers (breaking in and breaking floors) that may be exercised anywhere, at whatever time and in relation to whomsoever, with no need for the existence of a reasonable suspicion, irrespective of the type of search”. This constituted an unjustifiable limitation of the right to privacy on so the sections were struck down.  The Constitutional Court suspended the declaration of invalidity for a period of six months to allow Parliament to rectify the defect, and provided that in the interim requires SARS to obtain a warrant from a Magistrate or Judge before conducting searches of private residences. Continue reading →

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 →

Brittania Beach Estate (Pty) Ltd and others v Saldanha Bay Municipality

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 11/13 Western Cape High Court, 6 Jun. 2011
SCA, 30 Nov. 2012		 28 May 2013 5 Sep. 2013 Froneman J.  Unanimous

By Duncan Wild on 12 September 2012

The case involves a challenge brought by a property developer (“Brittania“) against a tariff used to determine bulk infrastructure development levies by the Saldanha Bay Municipality (“the Municipality“).  Section 42 of the Land Use Planning Ordinance 15 of 1985 (“LUPO”) allows a municipality to impose conditions on the grant of applications for rezoning and sub-division of land (the applications are made in terms of sections 16 and 25 of LUPO).  The tariff for the calculation of capital contributions is set by council resolution. 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 →

Mukaddam and Others v Pioneer Food (Pty) Ltd and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 115/12 Western Cape High Court, 7 April 2011
SCA, 29 Nov. 2012		  7 May 2013
  27 June 2013 Jafta J.  Unanimous

By Duncan Wild on 29 June 2013.

The issue is whether the applicants can receive certification from the court in order to bring a class action against the respondents.  The case is brought by Mr. Imraan Ismail Mukaddam, W E M Distributors CC and Mr. Abdul Kariem Ebrahim (“the applicants”).  The applicants are bread distributors in the Western Cape who purchase bread from one or other of the respondents, all major South African bread producers, and distribute it mainly to informal traders who in turn sell it to consumers.

The Constitutional Court set aside the prior decisions of the High Court and SCA, finding that the incorrect standard had been applied, and that the test had been incorrectly applied, and allowed the applicants to file further papers with the High Court which would then have to reconsider the certification. 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 →