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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
61/00
KATAZILE MKANGELI AND OTHERS 1st to 242nd
Applicants
versus
JOSHUA JOHANNES JOUBERT 1st
Respondent
VILLAGE FARM ADMINISTRATORS (PTY) LIMITED 2nd
Respondent
JUKSKEI CROCODILE CATCHMENT AREA FORUM 3rd
Respondent
THE DUTCH REFORMED CHURCH, NOORDRAND 4th
Respondent
NICOLAAS LOURENS JANSE VAN RENSBURG 5th
Respondent
STANLEY MAHLALELA N.O. AND OTHERS 6th to
13th Respondents
THE MASTER OF THE HIGH COURT 14th
Respondent
THE REGISTRAR OF DEEDS 15th Respondent
THE
NORTHERN METROPOLITAN LOCAL
COUNCIL OF GREATER JOHANNESBURG 16th
Respondent
25 OTHER PERSONS, OTHER THAN THE APPLICANTS,
RESIDENT ON
PORTION 133 OF THE FARM
ZANDSPRUIT, 191 REGISTRATION DIVISION I.Q.
OF
THE GAUTENG PROVINCE 17th Respondent
Decided on : 06 March 2001
JUDGMENT
CHASKALSON P:
[1] This judgment deals with an
application for leave to appeal directly to this Court against a decision of the
Witwatersrand High
Court. The applicants are two hundred and forty two
occupants of land registered in the Deeds Registry in the name of the Itsoseng
Community Trust. An informal township is being developed on this land contrary
to the provisions of a Town Planning Scheme and other
relevant legislation. It
was alleged that in the circumstances the occupation of the land by the two
hundred and forty two applicants
and other occupants of the land was unlawful.
It was also alleged that all the occupants were using the land in a manner that
constituted
a nuisance to neighbouring landowners. These allegations were
upheld in the High Court by Flemming DJP who delivered a judgment
in which he
made a series of orders against the occupants and other respondents in that
application. The orders are complicated
and it is not necessary for the
purposes of this judgment to refer to them in any detail. It is sufficient to
say that their effect
is to require the occupants to abate the nuisance they
were causing and to terminate their occupation of the land. The structures
in
which they are living are to be broken down and if they fail to leave the
property they are to be ejected by the sheriff.
[2] The occupants,
wishing to appeal to this Court against the order made by the High Court,
applied to that court for a certificate
in terms of rule 18 of the rules of the
Constitutional Court. They also applied for leave to appeal to the Full Bench
of the High
Court against the order that had been made. Flemming DJP dealt with
these applications in a brief judgment in which he furnished
a negative
certificate and declined to grant leave to appeal against his judgment. He
indicated that if leave to appeal had been
granted the appropriate court to deal
with the appeal would have been the Supreme Court of Appeal and not the High
Court.
[3] The applicants have now applied to this Court for leave to
appeal directly to it and have disclosed in their application that
they have
also petitioned the Acting Chief Justice for leave to appeal to the Supreme
Court of Appeal. That petition is apparently
conditional upon leave to appeal
directly to this Court being refused. The applicants say that the matter is
urgent.
[4] Their application is opposed by the respondents, who also
say that there is urgency in bringing this matter to finality. They
contend
that the issues raised in the appeal are not constitutional issues and that
there are no reasonable prospects that an appeal
will succeed. They ask that the
matter be brought to an end by refusing the application for leave to
appeal.
[5] Before dealing with the merits of the application it is
necessary to say something about the procedure that has been adopted.
Section
167(6)(a) of the Constitution provides:
“National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; . . .”
The Constitutional Court
Complementary Act[1] and the rules of
this Court[2] deal with the
circumstances in which direct appeals can be brought to this Court and the
procedure to be followed in such matters.
[6] Litigants wishing to take
advantage of these provisions face a problem. Unless they also apply for leave
to appeal to the Supreme
Court of Appeal or to the Full Bench of the High Court,
when they apply for a certificate in terms of rule 18, an application for
leave
to appeal to such courts may be out of time, if leave to appeal directly to the
Constitutional Court is refused. To deal with
this it has become the practice
for litigants to apply for leave to appeal to the Supreme Court of Appeal or to
the Full Bench at
the same time as they apply for a certificate in terms of rule
18. If the High Court considers that leave to appeal should be granted
it may
then grant leave subject to the condition that leave is granted only if this
Court refuses the application to appeal directly
to
it.[3]
[7] If the High Court
refuses leave to appeal in such matters, a litigant who wishes to keep its
options open regarding an appeal
may have to petition the Chief Justice for
leave to appeal, before a decision is given by this Court on the application for
leave
to appeal directly to it. That is what has happened in this case. It is
a practical course to follow. This Court may refuse leave
to appeal directly to
it, not because the appeal lacks prospects of success, but because it considers
the matter to be one which
ought properly to be dealt with by the Supreme Court
of Appeal before it is called on to consider hearing the
matter.[4] Where that is the case, an
order refusing leave to appeal directly to this Court does not preclude the
litigant from approaching
this Court again for leave to appeal after the Supreme
Court of Appeal has disposed of the matter either by way of a judgment, or
by
refusing the petition for leave to appeal. Should that happen, this Court will
consider the application on its merits in the
light of the decision of the
Supreme Court of Appeal. It is against this background that the application for
leave to appeal in
the present case has to be considered.
[8] Various
issues are dealt with in the judgment of the High Court. They include whether
the High Court had jurisdiction to hear
the application, or whether the claim
was one which fell within the jurisdiction of the Land Claims Court; whether the
applicants
in the High Court application had standing to enforce the provisions
of the Town Planning Scheme and to seek the eviction of the
occupants from
property that they did not own; whether a trust can be registered as the lawful
owner of land and in any event whether
the trust was a valid trust and whether,
in the circumstance, the occupants had any right to remain on the land as
beneficiaries
of the trust; whether the provisions of various statutes dealing
with the occupation and use of land were relevant to the application
and the
claim for eviction, and in particular whether the occupants are protected
against an eviction order by the provisions of
the Extension of Security of
Tenure Act 62 of 1997 (Tenure Act).
[9] In dealing with these issues and
whether an order for eviction was appropriate in the circumstances of this case,
Flemming DJP
gave detailed consideration to the constitutionality of the Tenure
Act and concluded that its provisions are inconsistent with the
Constitution.
In their application for a certificate under rule 18 of the rules of the
Constitutional Court, the applicants contend
that this finding was made despite
the fact that the constitutionality of the Tenure Act had not been raised as an
issue on the papers,
and that no argument had been addressed to the court on
that issue. In the judgment in which he furnished a negative certificate
Flemming DJP does not suggest that this averment is
incorrect.
[10] Having reached the conclusion that the Tenure Act was
unconstitutional, Flemming DJP considered it unnecessary to make a formal
declaration of invalidity - this despite the provisions of section 172(1) of the
Constitution which requires that a court when deciding
a constitutional matter
within its jurisdiction “must declare that any law or conduct that is
inconsistent with the Constitution
is invalid to the extent of its
inconsistency”. If the constitutionality of the legislation was not
relevant to his judgment
the learned judge ought not to have considered that
issue; if it was relevant he ought to have taken steps to have had the Minister
responsible for the administration of the Tenure Act joined as a party to the
proceedings.[5] He ought then to have
heard argument from the parties on that issue, and if he found the Act to be
inconsistent with the Constitution,
he ought to have made a declaration to that
effect as required by section 172(1) of the Constitution.
[11] Section
172(2)(a) of the Constitution provides:
“The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.”
The purpose of this section is
“...to preserve the comity between the judicial branch of government, on the one hand, and the legislative and executive branches of government, on the other, by ensuring that only the highest Court in constitutional matters intrudes into the domains of the principal legislative and executive organs of State. . . . It entrusts to this Court the duty of supervising the exercise of this power and requires it to consider every case in which an order of invalidity has been made, to decide whether or not this has been correctly done.”[6]
The
section also serves the purpose of ensuring that certainty is obtained as to the
constitutionality of Acts of Parliament where
that has been challenged. A
finding that an Act of Parliament is unconstitutional, which is not accompanied
by an order declaring
that to be so, defeats the purpose of section 172(2) of
the Constitution, and creates the very uncertainty that the Constitution
sought
to avoid.
[12] The application for leave to appeal directly to this
Court focuses on the finding that the Tenure Act is inconsistent with the
Constitution. Appeals are brought against orders made by a court and not
against comments made in the course of the judgment. The
orders made here
concern the abatement of the nuisance and the eviction from the land. The
issues raised are complex. Section 26
of the Constitution, which is referred to
in the judgment of the High Court, may be relevant to the orders dealing with
the breaking
down of the structures and the eviction from the property; section
39(2) of the Constitution may be relevant to the interpretation
of the Tenure
Act and other relevant legislation, and if the Tenure Act is relevant, the
constitutionality of that Act may have to
be considered. If these were the only
issues in the appeal, this Court might have granted leave to appeal directly to
it against
the order made by the High Court. There are, however, other issues,
such as the claim based on nuisance and the appropriate remedies
for it, the
standing to enforce provisions of the Town Planning Scheme, the validity of the
trust and the ownership of the land.
Because of the nature and the variety and
complexity of the issues raised in the judgment, this is a case in which an
appeal against
the decision of the High Court ought not to be brought directly
to this Court.
[13] The applicants contend that the manner in which the
constitutionality of the Tenure Act is dealt with in the judgment has created
confusion. They say that the judgment has received wide publicity and has
created uncertainty in the daily lives and relationships
of millions of people
which can only be resolved by a definitive ruling from this Court on the
constitutionality of the Act. That
the judgment may have created uncertainty is
no doubt true, but that in itself is not necessarily sufficient reason for an
appeal
from the High Court to be brought directly to this
Court.
[14] The finding made by Flemming DJP that the Tenure Act is
inconsistent with the Constitution was not the basis for the orders
made by him.
The finding is moreover of no force and effect. That is clear from the
Constitution and there is no need for this Court
to make a declaration to that
effect or to hear the appeal for the purpose of saying so. Should the
constitutionality of the Act
become a relevant issue in these or other
proceedings it can be brought before this court in accordance with the proper
procedures.
[15] It follows that a case has not been made out for a
direct appeal to this Court. The following order is accordingly made:
The application for leave to appeal directly to this Court against the order made in this matter by the High Court is refused.
Ackermann J, Goldstone J, Kriegler J, Madala
J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ and Somyalo AJ concur in
the judgment
of Chaskalson P.
[1] Section 16 of Act 13 of 1995.
[2] Rule 17 of the rules of the Constitutional Court.
[3] Member of the Executive Council for Development Planning and Local Government in the Provincial Government of Gauteng v Democratic Party and Others 1998 (4) SA 1157 (CC), 1998 (7) BCLR 855 (CC) at paras 16-18; and President of the RSA and Others v SARFU and Others 1999 (2) SA 14 (CC), 1999 (2) BCLR 175 (CC) at para 45.
[4] De Freitas and Another v Society of Advocates of Natal (Natal Law Society intervening) 1998 (11) BCLR 1345 (CC) at para 23; and Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC), 1998 (10) BCLR 1207 (CC) at para 35.
[5] Parbhoo v Getz NO 1997 (4) SA 1095 (CC), 1997 (10) BCLR 1337 (CC) at para 5; Beinash v Ernst & Young 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC) at para 27; and Jooste v Score Supermarket Trading (Pty) Ltd 1999 (2) SA 1 (CC), 1999 (2) BCLR 139 (CC) at paras 7-8.
[6] President of the RSA and Others v SARFU and Others above n 3 at para 29.
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