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“REPORTABLE”
THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
Case No.: A117/2024
Before ALLIE, J et HENNEY, J et NUKU, J
Hearing: 16 August 2024
Judgment Delivered: 3 September 2024
In the matter between:
THE EXECUTIVE MAYOR OF THE CITY OF CAPE TOWN Appellant
And
THE DIRECTOR OF PUBLIC PROSECUTIONS:
WESTERN CAPE 1st Respondent
BABSY NTAMEHLO 2nd Respondent
___________________________________________________________________
JUDGMENT ELECTRONICALLY DELIVERED ON 3 SEPTEMBER 2024
___________________________________________________________________
ALLIE, J:
1. This is an appeal against the paragraph 3 of the following orders that the court
a quo made mero motu , which orders were made at the end of Sentence
Proceedings in the criminal trial of the State against Babsy Ntamehlo:
“1. The patrimonial benefits of the marriage between the accused and the
deceased in respect of the p roperty referred to as 9[…] O[…] Street,
Fisantekraal, Durbanville are forfeited to the accused in favour of the only
child, L T[…].
2. Advocate Zuko Mapoma, a practising Advocate at the Cape Bar is
appointed as curator ad litem for the child, L T[…], at State’s cost.
3. The Mayor of the City of Cape Town shall, without undue delay, ensure
the establishment of a Trust for the benefit of the minor child, L T[…], and
assist in upholding the rights of the minor child of freehold ownership of
the property referred t o as 9[…] O[…] Street, Fisantekraal, Durbanville, in
trust, as envisaged and in the spirit of Chapter 13: Upgrading of Informal
Settlements, National Department of Housing dated 14 October 2004,
pages 18 to 29 and to take all necessary steps and ancillary fo r the full
realisation of this objective.
4. The Premier of the Province of the Eastern Cape shall within 30 days of
this order trace the remains of the deceased, N […] T[…], buried within the
boundaries of the Province of the Eastern Cape, and shall immediately
take all the necessary steps to ensure that the minor child, L T[…] as well
as Nonkuthalo’s family visit such grave as part of their emotional and
psycho-social therapy as advised by the Social Worker, Katleho Phiri.
5. The Director -General, National Department of Social Development, is
ordered to provide all the necessary resources, human and otherwise, to
support Ms Katlego Phiri, and all other necessary professionals in
assisting the minor child with his emotional, psycho -social and other
needs within their mandate as may be necessarily required.
6. The State, the curator ad litem, the Mayor of the City of Cape Town, the
Premier of the Province of the Eastern Cape and the Director -General,
National Department of Social Development, are granted leave to
approach the court on notice should the need arise on the feasibility of the
order.”
2. On 25 August 2023, t he Appellant brought an application for leave to intervene
as a party in the criminal matter and for leave to appeal in the court a quo.
3. On 13 November 2023, t he court a quo dismissed the application for leave to
appeal, on the basis that the application was brought prematurely, but granted
the application for leave to intervene.
4. The appellant applied to the Supreme Court of Appeal for leave to appeal.
5. The Supreme Court of Appeal granted the Appellant leave to appeal on
27 February 224.
6. The grounds of appeal are as follows:
6.1. The court a quo as a criminal trial court lacked jurisdiction to grant the
order being challenged in this appeal, namely paragraph 3 which orders
the Mayor to establish a Trust for the minor child of the deceased and the
accused and to assist in having the immovable property transferred to the
trustees, which order relies on the order of forfeiture of ownership of the
property made in paragraph 1 of the court a quo’s orders and is
supplemented by paragraph 6 which grants the Mayor leave to approach
the court a quo should he find the order in paragraph 3 not feasible.
6.2. The court a quo made the ord ers being appealed against in
circumstances where the Appellant was not a party to the proceedings
before the court a quo;
6.2. The order of forfeiture of the accused’s half share of the immovable
property that he co-owns with the deceased is wrong in law and falls to be
set aside;
6.3. The court a quo exceeded its powers in that it performed a function
beyond the powers conferred upon it by the Criminal Procedures Act 51 of
1977, section 28(2) of the Constitution of the Republic of South Africa, the
Correctional Services Act and the Prevention and Combatting of
Trafficking in Persons Act by ordering that the accused forfeit his share of
the immovable property and that share be held in trust for the benefit of
the said minor child and by making related order s to give effect to those
orders;
6.4. The court a quo impermissibly relied on Section 173 of the Constitution
and paragraph 64 of the H v Fetal Assessment Centre1 case as grounds
upon which it could make the orders complained of. The reliance on
section 1 73 is impermissible because the court a quo did not seek to
develop the common law nor could it ignore legislation and rely on the
Constitution and assume jurisdiction that it is not clothed with.
6.5. The criminal trial was not ‘a matter concerning the ch ild’ which is a
jurisdictional fact required to cause section 28( 2) of the Constitution to
apply;
6.6. The appellant cannot ignore the order of the court a quo , for to do so
would cause him to be in contempt of court, hence he brings this appeal;
6.6. For all the reasons stated in the above grounds of appeal, the Appellant’s
counsel contended that the court a quo lacked jurisdiction.
Facts
1 2015 (2) SA 193 ( CC)
7. The facts are as follows.
8. The State charged Mr Babsy Ntamehlo with the murder of his wife, one N […]
T[…].
9. They were married and had one child, L N […], who was a minor at the time
when the trial began.
10. The family lived in a house referred to by the court a quo as a RDP
(Reconstruction and Development Pr ogram) house, which is categorised as
affordable housing, in Fisantekraal, Durbanville, Western Cape.
11. The house was allocated to the accused.
12. Disputes arose between the deceased and the accused, who wanted the
deceased to vacate the house, but she allegedly refused to do so because she
was married to the accus ed and had spent money from the sale of her house
towards the household. The deceased allegedly wanted to save the m arriage
even though the accused did at some stage , move out and live with another
woman, for a while.
13. On 26 October 2022, the court convict ed the accused, Babsy Ntamehlo of the
planned murder.
14. After requesting a Pre -Sentence Report, which the court received, it delivered
judgment on sentence on 2 August 2023.
15. At the time of sentencing, the court a quo had before it the Pre -Sentence
Report and a Victim Impact Report referred to in its reasons for the orders that
it made.
16. In the Pre -Sentence Report, the Probation Officer provides the date of birth of
the minor child L, namely, 17 August 2005. That means that at the time when
the accused was s entenced on 2 August 2023, his son, L was approximately
two weeks away from attaining the age of majority.
17. In the Pre-Sentence Report it is mentioned that since the arrest of the accused,
the house in Fisantekraal has been let to tenants and the rent is u tilised for the
benefit of L. The T[…] family is managing that arrangement.
18. The report also records that L is living with the T […] (maternal) family who are
taking care of him and providing for his needs.
19. One day prior to the hearing of this appeal, Mr Mapoma, an advocate who was
appointed as a curator ad litem to L, filed a Practice Note informing the Court
that L is currently 19 years old and had attained the age of majority in August
2023.
20. Counsel for the Appellant then handed up to this Court a copy of an updated
report of a social worker employed by the Department of Social Development,
in respect of L.
21. In the social worker’s updated report, L’s date of birth is given as 14 August
2005. The social worker records that L is residing with his mat ernal
grandmother, her husband, their three children and one grandchild in Delft.
22. The social worker further mentioned that L did not foresee returning to the
house in Fisantekraal.
23. In the judgment on sentence, the court a quo mentioned that not only is L a
victim but his maternal family were also victims.
24. The court a quo stated that L has been living with his maternal grandmot her
and family since the murder and was clearly aware of the fact that L did have a
home and did not wish to live in the Fisantekraal house.
25. The court a quo provided the following reasons for what follows therea fter as
the order in paragraph1:
“The accused must be found on policy considerations, to lack the capacity
to benefit from the person whom he has unlawfully killed. The accused is
also unworthy to retain his share of 9 […] O[…] Street, Fisantekraal. The
time has arrived, in my view, based on reasonableness, fairness and
public policy considerations as factors, to determine whether a spouse
should be declared unworthy to rece ive his or her half -share of the estate
as a result of his or her own wrongdoing, as a necessary quantum leap in
the fight against gender - based violence especially where it includes the
killing of another….The unworthy spouse principle is already part of our
law. Section 9(1) of the Divorce Act ( Act 70 of 1979) provides that when a
decree of divorce is granted on the grounds of irretrievable breakdown of
the marriage the court may order that the patrimonial benefits of the
marriage be forfeited….”
26. The court a quo found support for what it thought was the development of the
common law with regard to forfeiture of the benefits of the marriage on death of
a spouse and with regard to a convicted murderer not inheriting from his victim
in section 173 of the Co nstitution and in the case of H v Fetal Assessment
Centre, a case that concerned a civil claim brought by a mother on behalf of a
child. In the Fetal case it was common cause that the case was a matter
involving the child.
27. The court a quo then went on to explain that the paternity of the father of the
deceased, and the paternity of the father of the accused were in doubt and that
had caused the child, L to have an identity crisis. The court a quo , then
concluded that the issue of grandfathers’ paternity had the potential to deny the
child a home.
28. It is not certain whether the court a quo meant to convey that the child could be
denied a physical, bricks and mortar home or a familial bond type of home.
29. With regard to the bricks and mortar, family home, the Probation Officer and the
Social Worker both make clear that L is not living in that house and it would
appear that he did not want to live there.
30. With regard to a familial bond “ home”, it is also clearly stated in both the report
on Pre – Sentence and the Victim Impact Report, recorded by the court a quo,
that L had found physical and emotional support and a family home with his
maternal grandmother and her family.
Applicable Law
31. In NDPP v Zuma ,2 the Supreme Court of Appeal considered the proper
exercise of judicial function when adjudicating cases that it is seized with as
follows:
“[15] It is crucial to provide an exposition of the functions of a judicial
officer because, for reasons that are impossible to fathom, the court below
failed to adhere to some basic tenets, in particular that in exercising the
judicial function judges are themselves constrained by the law. The
underlying theme of the court’s judgment was that the judiciary is
independent; that judges are no respecters of persons; and that t hey
stand between the subject and any attempted encroachments on liberties
by the executive (para 161 -162). This commendable approach was
unfortunately subverted by a failure to confine the judgment to the issues
before the court; by deciding matters that were not germane or relevant;
by creating new factual issues; by making gratuitous findings against
persons who were not called upon to defend themselves; by failing to
distinguish between allegation, fact and suspicion; and by transgressing
the proper bou ndaries between judicial, executive and legislative
functions.”
2 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA)
32. At paragraph 19, the Supreme Court of Appeal went on to discuss the limits on
the exercise of judicial powers:
“[19] The independence of the judiciary depends on the judiciary’s respect
for the limits of its powers. Even if, in the words of the learned judge, the
judiciary forms a ‘secular priesthood’ (para 161) this does not mean that it
is entitled to pontificate or be judgemental especially about those who
have not been called upon to defen d themselves – as said, its function is
to adjudicate the issues between the parties to the litigation and not
extraneous issues.”
33. Provision for judicial independence is contained in section 165 (2), (3) & (4) of
the Constitution of the RSA,1996 as follows:
“165(2) The courts are independent and subject only to the Constitution
and the law, which they must apply impartially and without fear, favour or
prejudice (emphasis added)
165(3) No person or organ of state may interfere with the functioning of
the courts.
165(4) Organs of state, through legislative and other measures, must
assist and protect the courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts.”
34. The Constitution makes clear in section 171, that all courts operate in terms of
National Legislation. It provides as follows:
“171. All courts function in terms of national legislation, and their rules and
procedures must be provided for in terms of national legislation.”
35. In Section 173, the Constitution provides as follows for the courts to exercise its
inherent powers subject to certain conditions, namely the interests of justice:
“173. The Constitutional Court, the Supreme Court of Appeal and the High
Court of South Africa each has the inherent power to protect and regulate
their own process, and to develop the common law, taking into
account the interests of justice.” (emphasis added).
36. The purpose of the judiciary in a constitutional democracy is to regulate
compliance with the Constitution and constitutionally consonant legislation.
37. Unlike the other arms of government , the judiciary does not command a police
force or an army that can enforce its orders.
38. It therefore relies on its legitimacy and society’s respect for the principle of
legality and the rule of law, for enforcement of its orders.
39. If it is to retain tha t legitimacy and credibility, the judiciary must itself
demonstrate respect for and compliance with the principle of legality and the
rule of law.
40. When judges adjudicate cases that serve before them, they are not performing
administrative action but they are exercising public power as an arm of
government.
41. In Albutt 3 the Constitutional Court found that:
“It is by now axiomatic that the exercise of all public power must comply
with the Constitution, which is the supreme law, and the doctrine of
legality, which is part of the rule of law. More recently, and in the context
of section 84(2)(j), we held that although there is no right to be pardoned,
an applicant seeking pardon has a right t o have his application
“considered and decided upon rationally, in good faith, [and] in
accordance with the principle of legality”. It follows therefore that the
3 Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) para 49
exercise of the power to grant pardon must be rationally related to the
purpose sought to be achieved by the exercise of it.”
42. Following on Albutt, the Constitutional Court decided in Fedsure,4 as follows
concerning the application of the principle of legality and the rule of law in the
interim Constitution:
“[58] It seems central to the concepti on of our constitutional order that the
legislature and executive in every sphere are constrained by the principle
that they may exercise no power and perform no function beyond that
conferred upon them by law. At least in this sense, then, the principle o f
legality is implied within the terms of the interim Constitution. Whether the
principle of the rule of law has greater content than the principle of legality
is not necessary for us to decide here. We need merely hold that
fundamental to the interim Cons titution is a principle of legality and the
doctrine of legality which is an instance of the rule of law that underpins
the South African Constitution. “
43. The Constitutional Court decided in Pharmaceutical Manufacturers
Association of SA 5 that the princip le of legality means that the exer cise of
public power should be neither arbitrary nor irrational.
44. Turning to the doctrine of separation of powers that sets parameters for the
exercise of power by each of the three arms of government, the following are
relevant considerations.
45. The doctrine of separation of powers, has as its primary objective, the
prevention of a concentration of power in any one of the three arms of
government, namely the executive, legislature and judiciary in order to prevent
oppressive or overbroad consequences in the exercise of state power.
4 Fedsure Life Assurance Ltd v Grater Johannesburg Transitional Metropolit an Council 1999 (1) SA
374 (CC) para 58
5 Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of South Africa [2000]
ZACC 1; 2000 (2) SA 674 (CC) (para 20)
46. Each arm of government has the role of providing oversight over the other.
47. Moseneke DCJ (as he then was) said as follows in describing separation of
powers:
“Checks and balances ensure that all branches of government are
interdependent, and that no single branch may act unilaterally. For
example, the President is elected by Parliament and sworn in by the Chief
Justice. In other words, the head of the executive is elected by the
legislature and sw orn in by the judiciary. The judiciary itself is appointed
by the executive. And the legislature enacts laws to which the President
must assent, and which are subsequently interpreted by the judiciary and
whose orders must be enforced by the executive. The branches of
government are not in competition with one another. Rather they are
symbiotic. They are part of a beautiful mosaic which will work only if we
bring all our public goodness to the fore.” 6
48. A tension will, undoubtedly exist between the three ar ms of government in the
exercise of their separate powers, but that tension, if it ’s in conformity with the
doctrine of separation of powers and the C onstitution, is meant to be a healthy
one.
49. The judiciary has been bound to act within the confines of the Code of Judicial
Conduct 7 and it has itself incorporated into the Preamble of its Code of
Conduct, the Bangalore Principles of Judicial Conduct, (2001) as revised at the
Hague (2002), which has at its core, the following principles:
a. Independence;
b. Impartiality;
6 3 Moseneke D in a speech delivered at the University of the Western Cape, 2015. Available at
https://wwwgroundup.org.za/article/separation-of-powers-have-courts-crossed-line_3152
7 https://www.gov.za/documents/notices/judicial-service-commission-act-code-judicial-conduct-18-oct-
2012
c. Integrity;
d. Propriety;
e. Equality;
f. Diligence;
g. Competence
50. That independence ranks fore-most, is no coincidence. I t’s a requirement in
section 165(2) of the Constitution as well and it commands independence from
the judiciary.
51. The Bangalore Principles state in relation to the principle of judicial
independence that: Judicial independence is a prerequisite to the rule of law
and a fundamental guarantee of a fair trial.
52. The Bangalore Principles state that the application of the principle of judicial
independence should be as follows: A judge shall exercise the judicial function
independently on the basis of the judge’s assessment of the facts and in
accordance with a conscientious understanding of the law, free of any
extraneous influences, inducements , pressures, threats or interference, direct
or indirect, from any quarter or for any reason.
53. Section 165(2) also makes the judiciary’s exercise of power subject only to the
Constitution and the law.
54. Judges are therefore duty bound to act within the provi sions of the Constitution
and all applicable law, including legislation.
55. In this instance, the legislation that gives a judge presiding over a criminal trial
the power to do so, primarily, is the Criminal Procedure Act 51 of 1977.8
56. Section 300 of the Cri minal Procedure Act provides for a limited form of
compensation to persons who have suffered financial loss as follows:
“(1) Where a person is convicted by a superior court, a regional court or a
magistrate's court of an offence which has caused damage to or loss of
property (including money) belonging to some other person, the court in
question may, upon the application of the injured person or of the
prosecutor acting on the instructions of the injured person, forthwith award
the injured person compensation for such damage or loss:
Provided that-
(a) a regional court or a magistrate's court shall not make any such
award if the compensation applied for exceeds the amount determined
by the Minister from time to time by notice in the Gazette in respect of
the respective courts.
(2) For the purposes of determining the amount of the compensation or
the liability of the convicted person therefore, the court may refer to the
evidence and the proceedings at the trial or hear further evidence either
upon affidavit or orally.
(3) (a) An award made under this section-
(i) by a magistrate's court, shall have the effect of a civil judgment of
that court;
(ii) by a regional court, shall have the effect of a civil judgment of the
magistrate's court of the district in which the relevant trial took place.
8 Sefatsa and Others v Attorney-General-Transvaal and Another 1989(1) SA 821 (A) at 834E
(4) Where money of the person convicted is taken from him upon his
arrest, the court may order that payment be made forthwith from such
money in satisfaction or on account of the award.
(5) (a) A person in whose favour an award has been made under this
section may within sixty days after the date on which the award was
made, in writing renounce the award by lodging with the registrar or clerk
of the court in question a document of renunciation and, where applicable,
by making repayment of any moneys paid under subsection (4)(b) Where
the person concerned does not renounce an award under paragraph (a)
within the period of sixty days, no person against whom the award was
made shall be liable at the suit of the person concerned to any other civil
proceedings in respect of the injury for which the award was made.”
57. Clearly, in casu , there was no application brought in the court a quo by the
prosecution nor anyone on behalf of any injured person for an order of the kind
contemplated in section 300.
58. The offences for which the accused was charged in the court a quo did not
include damage to or loss of, property to some other person.
59. I hasten to add, that the consequences of the laws of intestacy, specifically with
regard to inhe ritance concerning the deceased’s half share of the immovable
property that constituted her home, would apply to the child of the deceased, L.
60. Van Leeuwen in his Censura Forensis Part 1, Book 3, Ch 4.42 states:
“He who has killed another or has given aid or assistance in the
commission of this crime, is unworthy of succeeding to that man by
testament or on intestacy and what has been left to him the treasury
deprives the murderer of on the ground that he is unworthy of it. But
unworthy persons of this kind , as is the case too with other unworthy
persons, are regarded by usage as incapable of taking, and what has
been left to them is regarded as not having been left .” (Schreiner’s
translation.)
61. Our common law recognises that the maxim: “ De Bloedige Hand Erf t Niet,”
namely, the bloody hand does not inherit, would apply to the accused a quo
who cannot inherit the deceased’s half share of the property.
62. The Digest uses the maxim: nemo ex suo delicto meliorem suam condicionem
facere potest (D. 50.17.134(1) to describe the principle that no one is allowed to
improve his condition by his own crime.
63. In paragraph 23 of the judgment of the court a quo the following is said:
“A person who kills another, as an economic impact of domestic violence,
should not be entitled to benefit from the estate of the person whom he or
she has killed. The general principle is that no person may be enriched by
his or her own unlawful conduct, or to benefit from conduct that is
punishable by law.”
64. From the above -quoted passage, it is n ot clear whether the court a quo was
alive to the principle and maxim that already exists in the common law and that
has been applied by our courts.
65. It is a recognised common law principle that someone who intentionally and
unlawfully murders another, can ’t benefit under the will of the deceased nor in
terms of the laws of intestacy.
66. There was accordingly no need to develop the common law on that aspect.
The section 173 Constitutional power to protect and regulate the court’s own
process, and to develop the common law, taking into account the interests of
justice, was therefore not required to be exercised by the court a quo.
67. Therefore the following words used by the court a quo in paragraph 23, quoted
above, namely: “ … as an economic impact of domestic violence’ does not
qualify the legal position with regard to a perpetrator not inheriting when he has
murdered the person from who, he stands to inherit.
68. In considering the reasoning in the judgment of the court a quo, it is necessary
to make a few remarks concerning the need for judicial officers not to stray into
the arena of making comments or statements that have the effect of attracting
populist rhetoric.
69. Judges must not only be independent and impartial and adjudicate without fear
and favour and pr ejudice but they must also be seen and be perceived to be
thus, in order to maintain the legitimacy of the judiciary and respect for the rule
of law.
70. The judgment a quo, is peppered with reference s to popular protest songs and
slogans like: “Senzeni na? (What have we done?) Wathint’ Abafazi ! (You strike
a woman) Siyaya e Pitoli (We are marching to Pretoria) Sefikile e Pitoli (We
have arrived in Pretoria) Amandla Ngawethu! (The power is ours)”
71. While the history and import of the above-named protest slogans and songs are
fully understood and appreciated by this Court, it is necessary in the exercise of
judicial power, to remind ourselves that c ourts are meant to uphold the law and
apply it without playing to a public gallery or the court of public opinion.
72. The protest songs and slogans referred to above, unless they form part of the
evidence and facts of the case, have no place in a judgment.
73. While this Court recognises that gender based violence is a scourge on society
and that all too often the perp etrator is a person who has or had a n intimate
relationship with the victim , there are no grounds, on the facts of the case, that
served before the court a quo, that calls for the development of the common
law, to specifically prohibit a person in the positio n of the accused from
inheriting because he perpetrated gender based violence on his late wife in an
attempt to derive an economic advantage. The common law prohibits him from
inheriting anyway because he is not entitled to benefit from his own mischief.
74. If the reference in paragraph 23 of the judgment a quo, to domestic violence, is
a reference to the evidence that the accused had perpetrated violence on the
deceased, prior to the murder, then it is axiomatic that the court a quo could not
punish the acc used for acts of domestic violence that did not form part of the
charges for which he was indicted.
75. Turning, once again to the remarks of the court a quo concerning the paternity
of L’s mother and L’s father, the following considerations are relevant. It is more
likely than not, that L, would inherit his late mother’s half share of the
immovable property.
76. The court a quo referred at paragraph 27 of its judgment on sentence, to the
paternity of the child’s mother and that of the father and a possible ident ity
crisis for the child. The court however refers only to the aspect of the paternity
of the child’s parent as being determinative of the child’s identity.
77. Paragraph 27 reads as follows:
The true identity of the father is in doubt as regards the father’s paternal
relations. His elders point to one family as his paternal relatives whilst the
accused insisted that his mother told him about a different person as his
father, both distinct from Ntamehlo as the father who raised him. It was on
the eve of the mo ther’s burial that another family informed the T[...] family
that the mother was their blood child and took away the deceased’s body.
The child learned only after his mother’s death that he may not be related
by blood to the T[...] family. This is because it is now alleged that the
deceased was conceived in a relationship of her mother with another man
other than Mr T[...] to whom she was married.
78. Regrettably the reasoning appears to evince a patriarchal understanding of
identity. An order that is based o n the Court a quo’s understanding of who
would be the relatives of the minor is not harmonious with a Constitutional
democracy where family relations are not limited to paternal relatives of the
mother or of the father or the child. Paragraph 27 harks back to the offensive
and thankfully, now repealed, Black Administration Act 38 of 1927.
79. The paternity of the father of the deceased or for that matter of the accused, is
irrelevant to the fact that L, if he is the only child of the deceased, should
inherit. The court a quo’s remarks concerning the paternity of the grandfathers
of L are unfortunate and misplaced.
80. The Black Administration Act 38 of 1927 which provided for the administration
of deceased estates of black person s for 79 years, has been repealed and with
it the patriarchal method of devolution of inheritance based on paternity and
primogeniture.
81. In Bhe and Others 9 the Constitutional Court expressed its view on customary
law applicable to deceased estates as follows:
“ [78] The exclusion of women f rom heirship and consequently from being
able to inherit property was in keeping with a system dominated by a
deeply embedded patriarchy which reserved for women a position of
subservience and subordination and in which they were regarded as
perpetual minors under the tutelage of the fathers, husbands, or the head
of the extended family.”
82. The Bhe, Shibi and the SAHRC cases declared as unconstitutional and invalid,
sections 23(10) (a), (c) and (e) of the Black Administration Act 38 of 1927, as
well as Regulation 2(e) of the Regulations of the Administration and Distribution
of Estates of Deceased Blacks GN R 200 of 1987 and section 1(4) (b) of the
Intestate Succession Act 81 of 1987.
83. The Black Administration Act was finally repealed on 31 July 2006.
84. That Act provided for discrimination on the grounds of race and gender.
9 Bhe and Others v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC)
85. It provided for a separate legislative framework in which estates of black
persons were administered even in the case of intestacy which prevented those
persons from having the protection of the Intestate Succession Act, that applied
to everyone else.
86. The Black Administration Act allowed for devolution of estate assets on the
basis of African customary law, which was generally understood and applied as
follows: the property in the estate b ecomes the property of an heir who is
determined in accordance with the system of male primogeniture.
87. Under the Black Administration Act, t he surviving spo use did not obtain
ownership of the proper ty in the estate. Her rights were limited to a personal
claim against the male heir.
88. In intestacy, there was no justification for a compulsory and invariable rule of
law which had the effect of placing the property to which a woman has a right,
under the ownership and control of a male relative of her late husband.
89. The court a quo appears to have found the power to implement section 28(2) of
the Constitution during the course of sentence proceedings of the accused i n
the criminal trial by having regard to H v Fetal where at paragraph 64, the
Constitutional Court held that the Court is obliged to act in the best interests of
the child in all matters concerning the child.
90. This Court accepts that the conviction of the father for the murder of the mother,
does have an impact on the minor child.
91. In cases where it was necessary for the Court to have regard to who would
become the child’s primary caregiver if his /her surviving parent was sentenced
to imprisonment, the best interests of the child would be relevant to the
determination of the type of sentence to be impo sed on the accused as a
primary caregiver of the child.
92. In Bannatyne 10 it was held as follows concerning the obligation to consider the
best interests of the child:
“[24] The right in question in children’s maintenance matters is
contained in section 28 of the Constitution Section 28(2) provides:
‘A child’s best interests are of paramount importance in every matter
concerning the child.’
Children have a right to proper parental care. It is universally
recognised in the context of family law that the best i nterests of the
child are of paramount importance. While the obligation to ensure that
all children are properly cared for is an obligation that the Constitution
imposes in the first instance on their parents, there is an obligation on
the S tate to create the necessary environment for parents to do so .
This Court has held that the S tate. . . must provide the legal and
administrative infrastructure necessary to ensure that children are
accorded the protection contemplated by s 28.” (emphasis added)
93. However, in casu , the court a quo failed to examine and make a finding on
whether the sentence proceedings designed specifically for the punishment of
the accused, could be properly considered to be a matter relating to the child.
94. The child is the relative of the deceased most impacted by the murder of his
mother but he is neither a party to the criminal trial nor are the proceedings
designed to establish what is in his best interests.
95. There would have been man y relatives of the deceased who were also
adversely affected by her murder, most notably her bro ther who lived with her
as well her mother who now cares for the son of the deceased and the
accused.
10 Bannatyne v Bannatyne (Commission for Gender Equality; as Amicus Curiae) 2003 (2) SA 363
(CC) para 24
96. The factors that courts are implored to consider in imposing a sentence in a
criminal trial, incl ude the inter ests of society. Society, includes the relatives of
the deceased. The consideration of those interests are expressed in the
sentence imposed and the reasons therefor.
97. There are no legal authorities that have considered what constitutes a matter
involving the interests of the child because in all instances where courts have
been called upon to make that determination, it was common caus e that the
matter related to a minor child.
98. The court a quo’s views that the accused ought to forfeit the benefits of the
marriage between him and the deceased, in that he should forfeit his half share
of the property at Fisantekraal, is not based on any substantive legal provision.
99. Once a spouse is deceased, the marriage ends, therefore the Divorce Act and
section 9(1) thereof, has no application.
100. Consequently, paragraph 1 of the o rder of the court a quo in the judgment on
sentence, namely, the order on the accused’s forfeiture of the benefit of
ownership of the property, is not based on the principle of legality, is ultra vires
and falls to be declared null and void.
101. In Tasima,11 the Constitutional court discussed the basis of the finding that the
first order is wrong in law and the impact that would have on the sustainability
of the second order as follows:
189] This Cour t confronted the issue whether the Government’s appeal
against the first order was perempted by its attempts to comply with that
order and its failure to appeal it timeously. Von Abo explained that, were
the first order wrong in law, the second would be leg ally untenable The
Government’s failure to appeal the first order could not prevent
the court from reaching a conclusion on the first order. Von Abo said
11 Department of Transport and Others v Tasima (Pty ) Limited 2017 (2) SA 622 (CC) at [1890 and
[192]
nothing about the rights of parties to ignore a court order. Nor did it take a
view on whether a co urt must ignore the injury to the rule of law suffered
when a party ignores a court order. The same is true of the subsequent
decision of the Supreme Court of Appeal in Von Abo II, in which the first
order was set aside by the Court.”
102. At paragraph 192, of the Tasima case, the Court goes on to discuss the
necessity for a challenge to an invalid order as follows:
“[192] Shifren is to the same effect. The Court there quoted Voet:
‘If a decision is ipso jure void, there is no need of an appeal. Nay
the plain tiff can, notwithstanding the judicial decision, set in
motion once more the same action, and will by a replication of
fraud or of nullity shut out a defence of res judicata which has
been raised against him by his opponent. Likewise on the other
side a d efendant who is sued in the action rei judicatae on a
decision ipso jure void will easily evade such action by setting up
the nullity.’
The focus here was on what effect an invalid order would have on another
court. The point is that the ordinary consequ ences flowing from res
judicata do not apply where the original decision is “ ipso jure void”. This
does not upset the requirement that a court order must be appropriately
challenged in order to be set aside.” (footnotes omitted)
103. In Matjhabeng 12 the Constitutional Court held as follows concerning the audi
alteram partem rule of natural justice and joinder of parties with a direct and
substantial interest:
[92] The law on joinder is well settled. No court can make findings adverse
to any person’s interest s, without that person first being a party to the
12 Matjhabeng Local Municipality v Eskom Holdings Ltd and Others 2018(1) SA 1 (CC) at [92] to [93]
proceedings before it . The purpose of this requirement is to ensure that
the person in question knows of the complaint so that they can enlist
counsel, gather evidence in support of their position, and prep are
themselves adequately in the knowledge that there are personal
consequences – including a penalty of committal – for their non -
compliance. All of these entitlements are fundamental to ensuring that
potential contemnors’ rights to freedom and security of the person are, in
the end, not arbitrarily deprived.
[93] The principles which are fundamental to judicial adjudication, in a
constitutional order, were reaffirmed by this Court in its recent decision
in Lushaba, where the Court, per Jafta J, endorsed principles stated by
Ackermann J in De Lange:
“[F]air procedure is designed to prevent arbitrariness in the outcome
of the decision. The time-honoured principles that . . . the other side
should be heard [ audi alterem partem], aim toward eliminating the
proscribed arbitrariness in a way that gives content to the rule of
law. . . . Everyone has the right to state his or her own case, not
because his or her version is right, and must be accepted, but
because in evaluating the cogency of any argument, the ar biter, still
a fallible human being, must be informed about the points of view of
both parties in order to stand any real chance of coming up with an
objectively justifiable conclusion that is anything more than chance.
Absent these central and core notions, any procedure that touches in
an enduring and far -reaching manner on a vital human interest, like
personal freedom, tugs at the strings of what I feel is just, and points
in the direction of a violation.” (footnotes omitted)
104. The mayor, the proposed curator ad litem, the Premier of the Eastern Cape and
the Director - General, National Department of Social Developmen t were not
joined as parties to t he criminal proceedings in the court a quo, nor were they
given notice of the court’s intention to make ord ers compelling them to perform
certain obligations that the court a quo imposed on them.
105. Section 1 (c) of the Constitution of the RSA, 1996, provides not only for
supremacy of the Constitution but also that the rule of law is a foundational
value of Republic of South Africa.
106. In De Beer ,13 the Constitutional Court held as follows concerning procedural
fairness that must be upheld by the courts in complying with the rule of law,
prior to making court orders:
“[11] This section 34 fair hearing right affirms the rule of law which is a
founding value of our Constitution . The right to a fair hearing before a
court lies at the heart of the rule of law. A fair hearing before a court as a
prerequisite to an order being made against anyone is fundamental to a
just and credible legal order. Courts in our country are obliged to ensure
that the proceedings before them are always fair. Since procedures that
would render the hearing unfair are inconsistent with the Constitution
courts must interpret legislation and rules of court, where it is reasonably
possible to do so, in a way that would render the proceedings fair. It is a
crucial aspect of the rule of law that court orders should not be made
without affording the other side a reasonable opportunity to state their
case. That reasonable opportunity can usually only be given by ensuring
that reasonable steps are taken to bring the hearing to the attention of the
person affected….” (footnotes omitted)
107. Regrettably, the court a quo , failed to adopt the well -developed pra ctice of
ordering the registrar of the court to bring the content of a judgment and order
to the attention of the requisite authorities or role -players and instead chose to
order those role -players or persons that were not before the court a quo , to
perform certain obligation s, some of which fall outside those persons’ exercise
of power.
13 De Beer NO v North - Central Local Council and South -Central Local Council and Other
(Umhlatuzana Civic Association Intervening) 2002 (1) SA429( CC) at [18]
108. The mayor can only act within the confines of the power s bestowed on him in
terms of national legislation such as: The Municipal Structures Act 117 of 1998;
the Municipal Systems Act 32 of 2000; the Disaster Management Act 57 of
2002; the Municipal Finance Management Act (MFMA) 56 of 2003; the
Intergovernmental Relations Framework Act 13 of 2005; and the Spatial
Planning and Land Use Management Act 16 of 2013.
109. The mayor ca n also act in terms of the powers granted to him in the following
provincial legislation and by-laws: The Trade and Investment Promotion Agency
Act 3 of 1996; the City of Cape Town Establishment Notice and the current by -
laws made by the City of Cape Town.
110. There is no provision in the municipal budget for the establishment of trusts for
minor children and if the mayor were to comply with paragraph 3 of the order a
quo, he would have to utilise municipal funds in contravention of the MFMA.
111. The order in par agraph 3 effectively compels the mayor to act ultra vires or to
be in contempt of court by not complying with the order.
112. Paragraph 3 of the order of the court a quo, namely the order that the Mayor
establish a trust for the child and assist the child in g aining ownership of the
property in Fisantekraal, is dependent on paragraph 1, therefore, if paragraph is
unsustainable in law, the court a quo, equally did not have jurisdiction to make
the Order in paragraph 3.
113. The order in paragraph 6 is ancillary to t he order in paragraph 3, in that
paragraph 6 grants the Mayor and other persons who were not parties to the
case and were not before the court a quo, the right to approach the court for
leave to elucidate the feasibility of the order. Therefore if the order in paragraph
3 falls to be set aside, so should the order in paragraph 6.
114. This Court for the reasons stated herein, finds that the court a quo had no
jurisdiction to make the following orders that the court a quo said were made in
the interests of justice:
“In the interests of justice, the court makes the following orders:
1. The patrimonial benefits of the marriage between the accused and
the deceased in respect of the property referred to as 9[…] O[…]
Street, Fisantekraal, Durbanville are forfeit ed by the accused in
favour of the only child, L[...]2 T[…].
2. Advocate Zuko Mapoma, a practicing Advocate at the Cape Bar is
appointed as curator ad litem for the child, L[...]2 T[…], at State’s
costs.
3. The Mayor of the City of Cape Town shall , without undue delay,
ensure the establishment of a Trust for the benefit of the minor child,
L[...]2 T[...], and assist in upholding the rights of the minor child of
freehold ownership of the property referred to as 9[…] O[…] Street,
Fisantekraal, Durban ville, in trust, as envisaged and in the spirit of
Chapter 13: Upgrading of Informal Settlements, National Department
of Housing, dated 14 October 2004, pages 18 to 29, and to take all
steps necessary and ancillary for the full realization of this objective.
4. The Premier of the Province of the Eastern Cape shall within 30
days of this order trace the remains of the deceased, N[…]1 T[…],
buried within the boundaries of the Province of the Eastern Cape,
and shall immediately take all the necessary steps to ensure that the
minor child, L[...]2 T[…] as well as N[...]2’s family visit such grave as
part of their emotional and psycho -social therapy as advised by the
Social Worker, Katlego Phiri.
5. The Director -General, National Department of Social Developm ent,
is ordered to provide all the necessary resources, human and
otherwise, to support Ms Katlego Phiri, and all other necessary
professionals in assisting the minor child with his emotional, psycho -
social and other needs within their mandate as may be ne cessarily
required.
6. The State, the curator ad litem, the Mayor of the City of Cape Town,
the Premier of the Province of the Eastern Cape and the Director -
General, National Department of Social Development, are granted
leave to approach the court on notice, should the need arise on the
feasibility of the order.”
115. In so doing, the court a quo exceeded the bounds of its powers and failed to
apply the rule of law and the principle of legality, therefore the orders fall to be
set aside on the basis that they are wrong in law and constitute a nullity.
116. The mayor explains in his founding affidavit to the application for leave to
appeal to the Supreme Court of Appeal that the reference in Order 3 to:
Chapter 13: Upgrading of Informal Settlements, National De partment of
Housing, dated 14 October 2004, pages 18 to 29 is a reference to a 2004
National Housing Code that has been replaced by a 2009 National Housing
Code. Therefore the order refers to a Code that is no longer applicable and
serves to underscore the further danger of making an order against the Mayor
in his absence.
117. The issue of awarding costs does not arise in that there is no opposition to this
appeal and the Notice of Appeal does not seek a costs order, in any event.
IT IS ORDERED THAT:
1. The appeal succeeds;
2. Paragraph 3 of the order a quo , namely , the order that; The Mayor of the
City of Cape Town shall, without undue delay, ensure the establishment of
a Trust for the benefit of the minor child, L[...]2 T[...], and assist in
upholding the right s of the minor child of freehold ownership of the
property referred to as 9[…] O[…] Street, Fisantekraal, Durbanville, in
trust, as envisaged and in the spirit of Chapter 13: Upgrading of Informal
Settlements, National Department of Housing, dated 14 Octob er 2004,
pages 18 to 29, and to take all steps necessary and ancillary for the full
realization of this objective, is hereby set aside;
3. Orders 1,2, 4, 5 and 6 of the court a quo are declared to be nullities.
___________________
JUDGE R. ALLIE
HENNEY, J:
I agree.
_____________________
JUDGE R.C.A. HENNEY
NUKU, J:
I agree.
_____________________
JUDGE L. NUKU
Appearances:
On behalf of Appellant: Adv Andrew Breitenbach SC
Adv Kessler Perumalsamy
Attorneys: Riley Incorporated
On behalf of 1st Resp: Abides by the decision of the Court
On behalf of 2nd Resp: Abides by the decision of the Court