Mdodana v Premier of the Eastern Cape and Others (CCT 85/13) [2014] ZACC 7; 2014 (5) BCLR 533 (CC); 2014 (4) SA 99 (CC) (25 March 2014)

Mdodana v Premier of the Eastern Cape and Others (CCT 85/13) [2014] ZACC 7; 2014 (5) BCLR 533 (CC); 2014 (4) SA 99 (CC) (25 March 2014)

The Constitutional Court held that it did not have jurisdiction to confirm the order of constitutional invalidity made by the Eastern Cape High Court regarding the Pounds Ordinance 18 of 1938. The Court reasoned that the Ordinance was not a provincial Act as envisaged by the Constitution, since the Eastern Cape Provincial Legislature had not assimilated or pronounced on the Ordinance, and parallel legislation existed in the province. The lack of uniform application and legislative endorsement meant the Ordinance did not meet the criteria for a provincial Act. Therefore, the High Court's declaration of invalidity remains effective in the Eastern Cape, but does not require confirmation by...

Citation
[2014] ZACC 7
Parties
Applicant: Bension Mphitikezi Mdodana; Respondent: Premier of the Eastern Cape; Respondent: Premier of the Western Cape; Respondent: Premier of the Northern Cape; Respondent: Member of the Executive Council for Traditional Leaders and Local Government Affairs, Eastern Cape; Respondent: Lukhanji Municipality; Respondent: Kevin Liebrum; Respondent: Roy Callaghan
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
25 March 2014
Case Number
CCT 85/13
Procedural Posture
Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity
Outcome
Application for confirmation of constitutional invalidity dismissed.
Judges
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Zondo J
Legal Topics
Jurisdiction of Constitutional Court, Arbitrary Deprivation of Property, Access to Courts, Provincial Legislation Status, Separation of Powers
Constitutional Law Land and Property Jurisdiction of Constitutional Court Arbitrary Deprivation of Property Access to Courts Provincial Legislation Status Separation of Powers

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Parties

Bension Mphitikezi Mdodana

Applicant

Premier of the Eastern Cape

Respondent

Premier of the Western Cape

Respondent

Premier of the Northern Cape

Respondent

Member of the Executive Council for Traditional Leaders and Local Government Affairs, Eastern Cape

Respondent

Lukhanji Municipality

Respondent

Kevin Liebrum

Respondent

Roy Callaghan

Respondent

Procedural Posture

Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Does the Constitutional Court have jurisdiction to confirm the order of constitutional invalidity regarding the Pounds Ordinance 18 of 1938?
  2. 2 Do the impugned sections of the Pounds Ordinance violate the Constitution, specifically sections 25 and 34?
  3. 3 What is the appropriate remedy if the impugned sections are unconstitutional?

Ratio Decidendi

The Constitutional Court held that it did not have jurisdiction to confirm the order of constitutional invalidity made by the Eastern Cape High Court regarding the Pounds Ordinance 18 of 1938. The Court reasoned that the Ordinance was not a provincial Act as envisaged by the Constitution, since the Eastern Cape Provincial Legislature had not assimilated or pronounced on the Ordinance, and parallel legislation existed in the province. The lack of uniform application and legislative endorsement meant the Ordinance did not meet the criteria for a provincial Act. Therefore, the High Court's declaration of invalidity remains effective in the Eastern Cape, but does not require confirmation by...

Court Disposition

Application for confirmation of constitutional invalidity dismissed.

Orders

  • The application is dismissed.
  • There is no order as to costs.