Kouga Municipality v Bellingan and Others (121/11) [2011] ZASCA 222; 2012 (2) SA 95 (SCA); [2012] 2 All SA 391 (SCA) (30 November 2011)

Kouga Municipality v Bellingan and Others (121/11) [2011] ZASCA 222; 2012 (2) SA 95 (SCA); [2012] 2 All SA 391 (SCA) (30 November 2011)

The Supreme Court of Appeal held that the Kouga Municipality failed to comply with the procedural requirements for enacting the Liquor (Trading Hours) By-law, as the changes between the drafts published in 2004 and 2006 were substantial and required republication to ensure proper public participation. The by-law was therefore invalid for purposes of prosecution. The court further clarified that a person charged with contravening allegedly invalid legislation is entitled to bring a collateral challenge by way of a declaratory order, and such relief is appropriate to prevent prosecution under invalid legislation. The order of the court a quo was amended to reflect this approach, declaring...

Citation
[2011] ZASCA 222
Parties
Appellant: Kouga Municipality; Respondent: Mark Bellingan; Respondent: The Mexican CC; Respondent: Rapicorp 118CC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2011
Case Number
121/11
Procedural Posture
Civil Appeal / Appeal From Eastern Cape High Court, Grahamstown
Outcome
Appeal dismissed. The Kouga Municipality Liquor (Trading Hours) By-law declared invalid for purposes of prosecution of the respondents.
Judges
Brand, Cloete, Heher, Theron, Wallis
Legal Topics
Municipal by Laws, Public Participation, Collateral Challenge, Declaratory Relief, Judicial Review, Procedural Invalidity
Administrative Law Civil Procedure Municipal by Laws Public Participation Collateral Challenge Declaratory Relief Judicial Review Procedural Invalidity

Case Brief

Summary, issues, holding and outcome

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Parties

Kouga Municipality

Appellant

Mark Bellingan

Respondent

The Mexican CC

Respondent

Rapicorp 118CC

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape High Court, Grahamstown

Legal Issues

  1. 1 Whether the Kouga Municipality Liquor (Trading Hours) By-law was validly enacted in accordance with statutory and constitutional requirements.
  2. 2 Whether the respondents were entitled to a declaratory order that the by-law was invalid for purposes of prosecution.
  3. 3 Whether the relief granted by the court a quo was appropriate given the nature of the challenge.

Ratio Decidendi

The Supreme Court of Appeal held that the Kouga Municipality failed to comply with the procedural requirements for enacting the Liquor (Trading Hours) By-law, as the changes between the drafts published in 2004 and 2006 were substantial and required republication to ensure proper public participation. The by-law was therefore invalid for purposes of prosecution. The court further clarified that a person charged with contravening allegedly invalid legislation is entitled to bring a collateral challenge by way of a declaratory order, and such relief is appropriate to prevent prosecution under invalid legislation. The order of the court a quo was amended to reflect this approach, declaring...

Court Disposition

Appeal dismissed. The Kouga Municipality Liquor (Trading Hours) By-law declared invalid for purposes of prosecution of the respondents.

Orders

  • The appeal is dismissed with costs.
  • Paragraphs 1, 2 and 3 of the order of the court a quo are deleted and substituted with: 'It is declared that the Kouga Municipality Liquor (Trading Hours) By-law published in the Eastern Cape Provincial Gazette Extraordinary on 27 December 2006 is invalid for the purposes of a prosecution of any of the first, second...