Shilubana and Others v Nwamitwa (CCT03/07) [2007] ZACC 14; 2007 (9) BCLR 919 (CC); 2007 (5) SA 620 (CC) (17 May 2007)

Shilubana and Others v Nwamitwa (CCT03/07) [2007] ZACC 14; 2007 (9) BCLR 919 (CC); 2007 (5) SA 620 (CC) (17 May 2007)

The Constitutional Court found that, although the respondent's legal representatives acted in an untimely and unsatisfactory manner, the interests of justice required the hearing to be postponed. The respondent had only secured senior counsel two days before the hearing and was not in a position to present his case effectively. The issues at stake were of significant constitutional and community importance, and the benefit of prepared argument outweighed the costs and inconvenience of postponement. The Court reserved the issue of costs and issued directions for the further conduct of the matter, including deadlines for supplementary written argument and procedures for disputing...

Citation
[2007] ZACC 14
Parties
Applicant: Tinyiko Lwandhlamuni Philla Nwamitwa Shilubana; Applicant: Walter Mbizana Mbhalati; Applicant: District Control Officer; Applicant: Premier, Limpopo; Applicant: MEC for Local Government and Housing, Limpopo; Applicant: House for Traditional Leaders; Applicant: Christina Somisa Nwamitwa; Applicant: Mathews TN Nwamitwa; Applicant: Ben Shipalana; Applicant: Ernest Risaba; Applicant: Stone Ngobeni; Respondent: Sidwell Nwamitwa
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
17 May 2007
Case Number
CCT03/07
Procedural Posture
Leave to Appeal / Application for Postponement of Hearing and Directions for Further Conduct
Outcome
The hearing was postponed to 4 September 2007; costs of postponement were reserved; directions for further conduct were issued.
Judges
Van der Westhuizen, Langa, Moseneke, Madala, Mokgoro, Ngcobo, Nkabinde, O'Regan, Sachs, Skweyiya
Legal Topics
Customary Law and Gender Equality, Postponement of Hearing, Representation by State Attorney, Fair Hearing Section 34, Costs Reservation
Constitutional Law Civil Procedure Customary Law and Gender Equality Postponement of Hearing Representation by State Attorney Fair Hearing Section 34 Costs Reservation

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Parties

Tinyiko Lwandhlamuni Philla Nwamitwa Shilubana

Applicant

Walter Mbizana Mbhalati

Applicant

District Control Officer

Applicant

Premier, Limpopo

Applicant

MEC for Local Government and Housing, Limpopo

Applicant

House for Traditional Leaders

Applicant

Christina Somisa Nwamitwa

Applicant

Mathews TN Nwamitwa

Applicant

Ben Shipalana

Applicant

Ernest Risaba

Applicant

Stone Ngobeni

Applicant

Sidwell Nwamitwa

Respondent

Procedural Posture

Leave to Appeal / Application for Postponement of Hearing and Directions for Further Conduct

Legal Issues

  1. 1 Whether the interests of justice require postponement of the hearing due to late securing of senior counsel for the respondent.
  2. 2 Whether the respondent's lack of resources and representation justifies postponement.
  3. 3 Whether the State Attorney is authorised to represent non-governmental applicants.

Ratio Decidendi

The Constitutional Court found that, although the respondent's legal representatives acted in an untimely and unsatisfactory manner, the interests of justice required the hearing to be postponed. The respondent had only secured senior counsel two days before the hearing and was not in a position to present his case effectively. The issues at stake were of significant constitutional and community importance, and the benefit of prepared argument outweighed the costs and inconvenience of postponement. The Court reserved the issue of costs and issued directions for the further conduct of the matter, including deadlines for supplementary written argument and procedures for disputing...

Court Disposition

The hearing was postponed to 4 September 2007; costs of postponement were reserved; directions for further conduct were issued.

Orders

  • The application for leave to appeal and condonation is set down for hearing on 4 September 2007 at 10h00.
  • Supplementary written argument, if any, to be lodged by the respondent on or before 10 July 2007, and by the applicants and amici on or before 31 July 2007.