Zondi v MEC for Traditional and Local Government Affairs (CCT 73/03) [2004] ZACC 19; 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC) (15 October 2004)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2004
>>
[2004] ZACC 19
|

|

Zondi v MEC for Traditional and Local Government Affairs (CCT 73/03) [2004] ZACC 19; 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC) (15 October 2004)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 73/03
XOLISILE ZONDI                                                                                                    Â
Applicant
                                                                                                                                        Â
versus
MEMBER OF THE EXECUTIVE COUNCIL FOR
TRADITIONAL AND LOCAL GOVERNMENT AFFAIRS                       First
Respondent
WILLIAM STEENBURG                                                                        Â
Second
Respondent
KOBUS BOTHA                                                                                         Â
Third
Respondent
RICHARD COOK                                                                                     Â
Fourth
Respondent
Heard on         :           9 March 2004
Decided on     :           15 October 2004
JUDGMENT
NGCOBO J:
Introduction
[1]
This case concerns the constitutional validity
of sections 8, 10(2), 12, 16(1), 29(1), 33, 34, 37, and 41(4) of the Pound
Ordinance
(KwaZulu-Natal), 1947
[1]
(the “Ordinance”).  The question is whether these provisions unjustifiably
limit the right of access to courts;
[2]
the right to equality;
[3]
the right to administrative action;
[4]
and the other rights asserted by the applicant.
[5]
[2]
In substance, the impugned sections make
provision for: immediate seizure and impoundment of trespassing animals by a
landowner
without notice to the livestock owner unless the livestock owner
happens to be an “owner of land immediately adjacent and which
bears the
registered brand of that owner”;
[6]
the assessment of damages by “two disinterested persons”, who must be voters,
as defined in the Electoral Act, 1979
[7]
(the “Electoral Act”), or
landowners;
[8]
payment of impoundment fees and damages by the livestock owner;
[9]
the sale in execution of
impounded animals if the livestock owner is unable to pay such fees and
damages;
[10]
the disposal of animals that are not sold after the auction, including animals
that are either too vicious to be driven to the
pound or kept at a pound;
[11]
and notice to be given to
livestock owners who are known.
[12]
Â
From start to finish there is no intervention of the judicial process.
Factual
Background
[3]
The applicant is Mrs Xolisile Zondi.  She is the
widow of the late Mr Makhelwane Zondi who was a labourer on a farm, Thornview,

where he resided with the applicant.  Mr Cook, the fourth respondent in these
proceedings, owns the farm.  The deceased and the
applicant had resided on the
farm for more than 25 years.  Her only asset is her livestock, consisting of 28
head of cattle and
18 goats, conservatively valued at R44 600, which she
inherited from the deceased.  She is unemployed and has no cash in the bank.Â

To meet her daily expenses, she depends on the proceeds of her livestock.  From
time to time, she sells calves to meet her expenses,
such as school fees,
medical bills and other household costs.  The livestock also provides a source
of nourishment in the form
of meat and milk.  She also uses the cattle in the
observance of traditional ceremonies and rituals.  She has no land that she
can
call her own.  She has resided on the farm since the death of her husband.
[4]
What gave rise to the present litigation is a
letter of demand that was sent to the applicant on 14 February 2003, at the
instance
of Mr Cook.  That letter called upon the applicant to remove her
livestock from the farm by 14 March 2003.  It warned that if
she failed to
comply with the demand, her livestock would be impounded.  The letter further
told her that arrangements had already
been made to remove her livestock to the
pound on 15 March 2003 were she to fail to comply with the demand.  The pound
to which
they were to be removed was not identified, despite a request by the applicant
to do so.
[5]
It is apparent from the letter of demand that
Mrs Zondi had previously been required to remove the livestock from the farm
and that
she had not complied.  It is not clear from the papers and we do not
know why this demand was issued because Mr Cook did not oppose
the
proceedings.  The terms of the letter do not suggest that Mrs Zondi’s cattle
have wandered onto his land without permission,
but rather that he has
terminated permission previously given to Mrs Zondi to keep the cattle on the
land.  Whether Mr Cook is
entitled to terminate such permission is not
something that is in issue in the case at this stage.  Nor is it something we
can
determine on the papers as they stand.  It should be mentioned that in her
papers, however, Mrs Zondi alleges that “the arbitrary
removal of the livestock
of poor Blacks in the rural areas is a favoured means of harassing or
intimidating them,” and that in
her knowledge and experience, it occurs
regularly for reasons that have nothing to do with trespass of livestock.  As
we have
not heard Mr Cook’s reason for issuing the letter of demand we cannot
surmise further as to why the demand was issued.
[6]
The letter of demand precipitated a two-part
urgent application to the High Court in Pietermaritzburg (the “High Court”) to
block the threatened impoundment.  The first part of the application sought an
interdict restraining the fourth respondent and
the poundkeepers of Weenen and
Dundee from impounding the applicant’s livestock.  Both poundkeepers were cited
because the applicant
was uncertain as to which pound her livestock would be
taken to for impoundment.  The second part of the application sought an
order
declaring the impugned provisions to be inconsistent with the Constitution.  On
11 March 2003, the interdict part of the
application, which was not opposed, was
granted.  It blocked the threatened impoundment pending the final determination
of the
constitutional challenge.
[7]
The Member of the Executive Council for
Traditional and Local Government Affairs, KwaZulu-Natal (the “MEC”), was one of
the
respondents against whom the relief was sought and granted.  While the MEC
elected to abide by the decision of the High Court on
the constitutional
challenge, an affidavit was nevertheless filed on his behalf.  In that
affidavit, he expressed the belief that
it was not appropriate for the High
Court to decide the constitutional validity of the impugned provisions as there
had been no
trespass on the applicant’s version and pointed to the fact that
the Ordinance did not apply to local authorities.  Despite being
called upon by
the High Court to make submissions on the appropriate relief, the MEC persisted
in his attitude that the constitutionality
of the impugned provisions should
not be reached.
[8]
The High Court upheld the constitutional
challenge and found that: (a) sections 16(1), 29(1), 33 and 34 of the Ordinance
permit
self-help and therefore violate the right of access to courts guaranteed
in section 34 of the Constitution; and (b) sections 8,
10(2), 12, 16(1), 29(1),
37 and 41(4) violated sections 33 and 34 of the Constitution in that they make
no provision for prior
notice to the livestock owner or they require notice
only if the stockowner is known.  These provisions were also found to be
inconsistent with section 3(1) and (2) of the Promotion of Administrative
Justice Act (“PAJA”).
[13]
  In addition, the High Court
found that section 29(1) discriminates on the basis of race and landlessness in
that it requires
a person who assesses damages to be either a voter or a
landowner.  It also found section 16(1) inconsistent with section 25(1)
of the
Constitution in that it permits arbitrary deprivation of property.
[14]
[9]
Having found that neither reading-in nor
severance was appropriate in this case, the High Court declared the impugned
provisions
to be inconsistent with the Constitution and therefore invalid.  It
thereafter referred its order of invalidity to this Court for
confirmation in
terms of section 172(2)(a) of the Constitution, which provides that an order of
constitutional invalidity made
by a High Court is of no force unless confirmed
by this Court.  However, the MEC has also noted an appeal against the decision

of the High Court.  What this Court therefore now has to consider is whether or
not to confirm the order declaring the impugned
provisions invalid.
[10]
Before considering the constitutional validity
of the impugned provisions, it will be convenient at this stage to deal with
the
preliminary matters that arose in this case.  These are: the application
for direct access by the applicant to enable her to now
challenge the
constitutional validity of the entire Ordinance, or alternatively to challenge
further provisions of the Ordinance;
the application by the MEC for leave to
introduce further evidence in this Court; and the question whether the order of
invalidity
is subject to confirmation by this Court.
Application
for direct access
[11]
On the eve of the hearing of this matter, the applicant
brought an application for direct access in which she sought an order
permitting
her to challenge the validity of the entire Ordinance or,
alternatively, further provisions of the Ordinance.  This application,
which
was opposed by the MEC, was heard in limine.  After argument, the Court made an
order dismissing the application and indicated
that reasons for that order
would be furnished in the course of this judgment.  Here are those reasons.
[12]
The frequency with which applications for direct
access occur renders it necessary to restate the legal principles that are
applicable
in the granting of such applications.  Such applications are
governed by rule 18 of the rules of this Court read with section 167(6)(a)
of
the Constitution, read further with section 8 of the Constitutional Court
Complementary Act.
[15]
Â
Under these provisions, this Court has discretion whether to grant direct
access but an application will only be granted if it
is in the interests of
justice to grant it.
[16]
  And the question whether it
is in the interests of justice to grant direct access must be decided in the
light of the facts of
each case.
[17]
  In this regard this Court
will consider a range of factors.  These include the importance of the
constitutional issue raised
and the desirability of obtaining an urgent ruling
of this Court on that issue, whether any dispute of fact may arise in the case,

the possibility of obtaining relief in another court, and time and costs that
may be saved by coming directly to this Court.
[13]
An important factor, which this Court has
emphasised time and again, is the undesirability of this Court sitting both as
the court
of first and final instance in a matter in which other courts have
jurisdiction.
[18]
Â
In terms of section 169
[19]
of the Constitution, the High Courts have constitutional jurisdiction,
including the jurisdiction to make an order concerning the
validity of a
provision in an Act of Parliament or a provincial Act.  The Constitution
contemplates that such orders will be referred
to this Court for confirmation.  Effect
must be given to this by ensuring that courts are not bypassed in matters that
fall within
their jurisdiction unless there are compelling reasons to do so.
[20]
[14]
If constitutional matters could, as a matter of
course, be brought directly to this Court, this Court could be called upon to
decide
cases without the benefit of the views of the lower courts having
constitutional jurisdiction.
[21]
Â
Yet the views of other courts are especially important in this early stage of
the development of our constitutional jurisprudence.Â
They help to refine our
jurisprudence.  As this Court held in
Bruce
:
“Experience shows that decisions are more
likely to be correct if more than one court has been required to consider the
issues
raised.  In such circumstances the losing party has an opportunity of
challenging the reasoning on which the first judgment is
based, and of
reconsidering and refining arguments previously raised in the light of such
judgment.”
[22]
[15]
This Court has therefore held that it is not
ordinarily in the interests of justice for this Court to act as a court of
first and
last instance, in which matters are decided without there being any
possibility of appealing against the decision given.
[23]
  Compelling reasons are
required to persuade this Court to exercise its discretion to grant direct
access and sit as a court of
first and last instance.
[24]
[16]
With these legal principles in mind, I now turn
to consider the merits of the application for direct access.
[17]
The applicant’s challenge to the entire
Ordinance rests on the proposition that “pounds” fall within the functional
areas
of a provincial legislative competence only to the extent set out for the
provinces in section 155(6)(a) and (7) of the Constitution.
[25]
  It was contended that the
Ordinance, which is provincial legislation, does not deal with the matters
comprehended in section
155(6)(a) and (7).  The Ordinance is therefore beyond
the competence of the province, the applicant asserted.  In essence the
applicant
now raises the question of the competence of the provinces to deal with matters
relating to pounds.
[18]
The High Court had jurisdiction under section
172(2)(a) not only to deal with this question, as it involved the constitutionality

of an Ordinance, but also with the challenge to the further provisions of the
Ordinance.  However, these matters were not raised
in the High Court.  The only
explanation given for the omission was to avoid a situation where it becomes
apparent at the hearing
that either the entire Ordinance or further provisions
should have been challenged so as to obtain appropriate relief.  In other

words, the application for direct access is an attempt to remedy a possible
omission to challenge what should have been challenged
in the High Court.  Indeed
it was submitted on behalf of the applicant in the course of oral argument that
the application in
effect represents an attempt to amend the pleadings on
appeal.
[19]
In
Prince
v President, Cape Law Society and Others
[26]
this Court held that a party who wishes
to challenge the constitutionality of a provision in a statute must raise the
challenge
at the time of the institution of the legal proceedings.
[27]
  A party cannot hope to supplement and make its case on appeal.
[28]
  In effect what the applicant is now seeking to do through the
application for direct access is to introduce a cause of action
that is
fundamentally different to that relied upon in the High Court.  The
constitutional challenge in the High Court was directed
at specific provisions
of the Ordinance and it was based on specific provisions of the Constitution.Â
Applications for direct
access are to be granted in exceptional circumstances
and not merely to avoid consequences of failure to properly formulate a
constitutional
challenge.
[29]
[20]
There
are further considerations that militate against the granting of direct access
in this matter.  The application raises complex
and difficult questions
relating to the powers of municipalities and provinces in relation to pounds.Â
A decision of this Court
on this issue will have far-reaching implications for
the provinces and municipalities as well as the national government.  None
of
these spheres of government has been joined in these proceedings.  Counsel for
the applicant submitted that this being a KwaZulu-Natal
ordinance, other municipalities
and provinces have no direct or substantial interest in the outcome.  This
submission overlooks
the very real consequences a ruling of this Court on this
issue will have for the powers of the provinces and municipalities in
relation
to the establishment and management of pounds.  This is sufficient to call for
a joinder of these spheres of government.
 In addition, the application was
made on the eve of the hearing of this matter and left the MEC with inadequate
time to investigate
the issues raised in the application.
[21]
For all these reasons, the Court considered that
it was not in the interests of justice to grant direct access and made the
order
dismissing the application.
The
application to introduce further evidence
[22]
The MEC seeks leave to introduce further
evidence in this Court.  Applications to lead further evidence in this Court
are governed
by rule 30, which incorporates by reference section 22 of the
Supreme Court Act, 1959.
[30]
  Section 22 confers on the
court hearing an appeal a wide discretion to receive further evidence.
[31]
  As a general matter, leave to
receive further evidence will be granted where special grounds exist.
[32]
  A factor that is generally
accepted as constituting a special ground is the fact that the evidence sought
to be led was either
not available at the time of the trial or could not have
been obtained by the exercise of proper diligence.
[33]
[23]
In the
Prince
case, this Court held that
considerations applicable to allowing further evidence on appeal in
constitutional matters are however
not necessarily the same as the
considerations applicable in other matters.
[34]
Â
And in
Bel Porto School Governing Body and Others v Premier, Western Cape,
and Another,
[35]
this Court made it clear that although this Court may have greater
flexibility than the Supreme Court of Appeal in allowing additional
evidence on
appeal, it is a power which should not be exercised unless there are compelling
reasons to do so.  Furthermore, in
the
Prince
case, this Court sketched
the obligation of the parties when pleading in constitutional matters and said:
“Parties who challenge the
constitutionality of a provision in a statute must raise the constitutionality
of the provisions sought
to be challenged at the time they institute legal
proceedings.  In addition, a party must place before the Court information
relevant
to the determination of the constitutionality of the impugned
provisions.  Similarly, a party seeking to justify a limitation of
a
constitutional right must place before the Court information relevant to the
issue of justification.  I would emphasise that
all this information must be
placed before the Court of first instance.”
[36]
Â
(Footnote omitted.)
[24]
The
evidence that the MEC seeks leave to introduce relates firstly to the
importance of the pound legislation and “the known and
notorious dangers” of
straying animals; and secondly to the steps taken by the Department of
Traditional and Local Government
to revise the pound legislation and to
reconcile it with the Constitution as evidenced by the KwaZulu-Natal Pound Bill
of 2000
which was published for comment on 21 February 2000.  The revision of
the Ordinance was referred to by Mr Pienaar who deposed to
an affidavit on
behalf of the MEC in the High Court.  However, he did not give any details of
the steps taken, nor did he refer
to the KwaZulu-Natal Pound Bill of 2000.  It
was the applicant in her reply who referred to the KwaZulu-Natal Pound Bill
which
was first published for comment on 29 August 1996.  She alleged that no
progress appears to have been made.  It follows therefore
that the further
evidence sought to be led is either already on record or, as the MEC puts it,
known and notorious.
[25]
The only explanation for not placing this
information before the High Court was the attitude of the MEC both in this Court
and in
the High Court, namely, that it was not necessary to reach the
constitutionality of the Ordinance.  The High Court specifically
requested the
MEC to place before it information relating to the consequences of an order of
invalidity.  The MEC persisted in
his attitude that it was not necessary to
consider the constitutionality of the Ordinance.  This was an unfortunate
stance for
the MEC to take, in particular, after being called upon by the High
Court to make representations on the appropriate order.
[26]
What the MEC now seeks to do is to place before
this Court evidence that he was supposed, and was called upon, to place before
the
High Court.  If the MEC wished to justify the pound legislation, he should
have placed before the High Court information relevant
to that justification.Â
This information was not placed before the High Court because of a deliberate
decision taken by the MEC
not to place such information before the High Court.Â
The MEC tied himself to a particular defence and as a result refused to place

information before the High Court that he now seeks to place before this Court.Â
This attitude of the MEC cannot be countenanced.
[27]
In the
Prince
case, this Court made it
clear that parties must make out their case in their founding papers and that
they would not ordinarily
be allowed to supplement and make their case on
appeal.
[37]
Â
This Court will not grant leave to lead further evidence “unless the
circumstances are such that compelling reasons exist to
do so.”
[38]
  Those circumstances do not
exist in this case.
[28]
For all these reasons the application to lead
further evidence must be refused.
Are the
orders subject to confirmation?
[29]
The High Court and the parties approached the
matter on the footing that the orders of invalidity are subject to confirmation
in
terms of sections 167(5)
[39]
and 172(2)(a)
[40]
of the Constitution.  Only orders of invalidity concerning an Act of
Parliament, a provincial Act or any conduct of the President
are subject to
confirmation.  Subsequent to the hearing, a question arose as to whether the
orders of invalidity are subject to
confirmation in view of the fact that we
are concerned here with an ordinance.  The Chief Justice issued further
directions requesting
the parties to submit written argument dealing with the
question whether the orders of invalidity are subject to confirmation, and
if
not, whether the MEC’s appeal should be treated as an application for leave to
appeal and non-compliance with the rules of
this Court be condoned.
[30]
Inasmuch as there is an appeal by the MEC, it is
not necessary to decide whether the declaration of invalidity of the Ordinance
is subject to confirmation under sections 167(5) and 172(2)(a) of the
Constitution.  This matter will be approached on the basis
of the appeal by the
MEC.  To this extent the MEC’s notice of appeal will be treated as an
application for leave to appeal.Â
And in all the circumstances of this case, it
is in the interests of justice that non-compliance with the rules be condoned
and
that leave to appeal be granted.
[31]
Since Mrs Zondi has been referred to as the
applicant, she will continue to be referred to as the applicant and the MEC as
the respondent.
[32]
The MEC contended that it was not appropriate for
either the High Court or this Court to determine the constitutional validity of

the impugned provisions.  This contention rests on the premise that on the
papers it had not been shown that there was trespass
so as to trigger the
Ordinance.  It is necessary to determine this question first.
Should the
constitutionality of the impugned provisions be reached?
[33]
In
support of the contention that this is not the appropriate case to reach the
constitutionality of the Ordinance, counsel for
the MEC placed much reliance on
the rule that requires courts, where possible, to decide cases without reaching
constitutional
issues.  This rule was first announced by this Court in
S v
Mhlungu and Others
[41]
and its basis was later
explained in
Zantsi v Council of State
,
Ciskei, and Others.
[42]
[34]
The
rule contended for by the MEC has no application in this case.  In the first
place, Mrs Zondi was threatened with the use of
the Ordinance.  Under section
38
[43]
of the Constitution, she was
entitled to approach the High Court for relief.  In the High Court, no argument
was advanced as to
why the constitutional validity of the provisions of the
Ordinance should not be considered.  The High Court was therefore entitled
to
consider the constitutional validity of the impugned provisions.  In the second
place, the rule has no application where, as
here, a High Court has declared
the impugned provisions invalid.  The declaration of invalidity creates an uncertainty
as to the
constitutional validity of the impugned provisions.  It is necessary
to remove this uncertainty.
[35]
It
is also clear from the
Zantsi
judgment that, where the order of a High
Court creates such uncertainty, it is necessary for this Court to consider the
constitutional
challenge.
[44]
Â
Indeed this was the reason why this Court considered the constitutional issue
in the
Zantsi
case even though it was not strictly necessary for the
High Court in that case to have considered the issue.
[36]
Finally,
where a court is concerned with legislation that is rooted in apartheid, it is
necessary to cleanse the statute books of
such statutes.  Such statutes are
inconsistent with the Constitution and they cannot be allowed to remain in our
statute books.Â
[37]
The contention by the MEC that this is not the
appropriate case to determine the constitutionality of the Ordinance must
fail.Â
It now remains to consider the constitutionality of the impugned
provisions.  In order to appreciate the basic purpose and effect
of the
impugned provisions and to evaluate the cogency of the constitutional
challenge, it is necessary to understand the scheme
of the Ordinance and the
social context in which it operates.
The social
context in which the Ordinance operates
[38]
The impoundment of livestock occurs in a complex
setting of historical deprivation of land to black South African people, the
struggle
for land and the need to protect farms against trespassing livestock.Â
This setting is a consequence of our history.  The Ordinance
was enacted under
the old legal order, which was premised on the apartheid policy.  That policy
was characterised by the denial
of the franchise and land rights to African
[45]
people and racial segregation
was its cornerstone.  To give effect to this policy, large-scale land
dispossessions and forced
removals of black people, in particular, African
people, took place over almost a century.
[46]
Â
In the end, African people were confined to 13% of the total land in the
country while white people owned almost all the remaining
87%.
[47]
  African people were driven
into the desolation of homelands.  The Natives Land Act
[48]
and the Native Trust and Land
Act
[49]
effectively “made it impossible for members of the African community, a racial
majority by far in this country, to own land in
some 87% of the country.”
[50]
  By law, African people could
not own or even occupy land in a white area like Weenen, except as labourers.
[51]
[39]
What emerged from this policy were racially
segregated residential areas, in which it was unlawful for the majority racial
group
to own or occupy land in an area that had been designated for occupation
by the minority racial group.  Residential segregation
ensured that white and black
people did not live side by side.  This policy produced and ensured
landlessness, amongst other things,
for African people, and therefore social
and economic disempowerment for African people.  Because African people were
confined
to small, overcrowded and often desolate areas, they had insufficient
grazing land for any livestock that they were allowed to keep.Â
By contrast, white
farmers owned vast amounts of land which was adequate for farming, grazing and
irrigation.  Thus it is reported
that in about 1985, Weenen’s 133 farmers had
an estimated 80 500 hectares of grazing land, 2 000 hectares of irrigated
fields
and 110 hectares of dryland pastures.
[52]
[40]
In the Weenen area alone it is reported that
about 22 000 people were forcibly removed from Weenen into relocation sites in
Msinga,
[53]
a nearby “black area”.  In some cases people were relocated to sites right next
to their former homes and grazing land.Â
Although people were generally
prevented from taking their livestock with them, some managed to “smuggle”
their livestock into
Msinga, which offered nothing but desolation.  Since there
was insufficient grazing land in the overcrowded and underdeveloped
areas in
which they were constrained, the livestock strayed back onto the now only white
farms, the animals’ old grazing grounds.
[54]
[41]
In search of grazing land for their livestock
African people found themselves trespassing on land, which they saw as
historically
theirs.  Therefore they also saw livestock impounding as
illegitimate.  White farmers, on the other hand, saw livestock impounding
as
“their only peaceful recourse to discourage the poaching of grazing or trespass
by livestock”
[55]
on their legally owned land.  The nature of this conflict in the Weenen area
has perhaps been accurately described by one farmer
as follows: “It is simple.Â
It’s a struggle for land.  A struggle between the haves and the have-nots.  And
the haves don’t
have that much anyway.”
[56]
[42]
In this historically tragic setting, livestock
impounding still provides some farm owners with a means to discourage the
poaching
of grazing or trespass by livestock.  It is in this historical and
current context that the impounding scheme of the Ordinance
operates.
The
impounding scheme of the Ordinance
[43]
In order to appreciate the effect of the
challenged provisions and to evaluate the cogency of the constitutional
challenge, it is
necessary to have some understanding of the impounding
scheme.  The scheme has a number of provisions.  For present purposes,
a brief
outline of the basic functioning of the scheme and the main provisions will
suffice.  In particular, the provisions of
the Ordinance are described without
considering the proper interpretation to be attached to them in the light of
the Constitution
and PAJA.  What follows does not therefore purport to be an
authoritative analysis of any provision of the Ordinance that is referred
to in
the course of this introduction.  This is no more than a summary of the main
provisions of the Ordinance.
[44]
The Ordinance was promulgated in 1948 by the
Provincial Council of the Province of Natal.  In terms of Proclamation 107 of
1994
published in Government Gazette 15813 of 17 June 1994, the administration
of the whole of the Ordinance was assigned to KwaZulu-Natal
with effect from 17
June 1994.  This was done pursuant to the provisions of section 235(6)
[57]
and 235(8)
[58]
of the interim Constitution.
[59]
Â
In terms of Proclamation 5 of 13 June 2003, the administration of the Ordinance
was entrusted to the provincial member of the
executive council responsible for
local government, the MEC.
[45]
The Ordinance puts in place a scheme which
provides for the immediate impoundment of trespassing animals and their
disposal.  Section
16(1) permits a landowner to impound animals found
trespassing on his or her land.  The landowner is not expressly required to

give any notice to the livestock owner unless the livestock owner happens to be
the owner of land immediately adjacent to that
of the landowner and the animals
bear the registered brand of its owner.  In such a case, the livestock owner is
entitled to 12
hours written or verbal notice of trespass.  Other livestock
owners are not expressly entitled to such notice.  Even if they are
known or
could, with reasonable diligence, be established, it matters not.
[46]
Once the cattle have been seized, they may be
driven to the nearest pound to be impounded.  The pound is operated by a
poundkeeper,
who operates the pound for profit if it happens to be a private
pound.  The poundkeeper is obliged “without delay [to] receive
into the pound .
. . all animals which are tendered to him . . . for the purpose of being
impounded.”
[60]
Â
The Ordinance does not expressly require the landowner to tell the poundkeeper
who the owner of the livestock is, even if the
landowner knows the livestock
owner.  The information that the landowner is obliged to furnish to the
poundkeeper is the number
and the description of the animals impounded, the
land upon which they were trespassing, the distance between the place where
they
were found and the pound, and the trespass fees or damages claimed.
[61]
[47]
The poundkeeper, in turn, is not expressly obliged
to inform the livestock owner of the impoundment unless the livestock owner is

known.
[62]
Â
Where the livestock owner is not known to the poundkeeper, the latter is not
explicitly required to establish who the owner is,
even if the animals are
distinguishably branded or marked or the owner of the animals could, with
reasonable diligence, be ascertained.Â
Yet in terms of section 18
[63]
of the Ordinance, these are
the steps that the landowner is required to take before a donkey or a pig found
trespassing on his
or her land can be destroyed.
[48]
Once the animals have been impounded, they can
only be released upon the payment of driving fees, trespass fees or damages
assessed
in terms of section 29(1) of the Ordinance and all the impoundment
fees and expenses incurred by the poundkeeper.
[64]
 If the owner is known “he shall be informed of such trespass” but only for the
purposes of enabling the livestock owner to
nominate one of the “two
disinterested persons” who are required to assess monetary damages caused by the
trespassing animals,
[65]
each of “whom shall either be a landowner or a voter as defined in section 1 of
the Electoral Act, 1979”.
[66]
[49]
If the animals are not claimed, they may be sold
to defray these expenses.
[67]
Â
They need not be sold at their market value, but only at a price that is
sufficient to recover all the amounts due under the
Ordinance.
[68]
  Any animal that remains
unsold may be destroyed.
[69]
Â
In the event of any balance remaining after the proceeds of the sale have been
applied to the fees and the expenses, that amount
may be paid to the livestock
owner if known, otherwise it is forfeited to the provincial government.
[70]
[50]
The Ordinance does not expressly oblige anyone
to tell the livestock owner about the sale.  The livestock owners are expected
to
establish the sale of their livestock by going through the Provincial
Gazettes or local newspapers.  That the livestock owner may
be illiterate
matters not.  Nor does it matter whether the livestock owner knows that he or
she is required to find this information
in this manner.  Perhaps the livestock
owner, though literate, does not understand the language of the local newspaper
and thus
receives news from Ukhozi FM or television, if he or she happens to
have access to a radio or a television set.  The livestock
owner may not even
be aware of the existence of the Provincial Gazette, let alone know how to find
or read it.  All of this matters
not.
[51]
Ordinarily, in the context of a population that
is generally literate, cognisant of their basic rights with reasonable access
to
skills, knowledge or resources, a public notice in newspapers circulating in
the area may be legally sufficient to give notice.Â
However, in the case of
someone like Mrs Zondi, who belongs to a group of persons historically
discriminated against by their government
under the old order, which still affects
their ability to protect themselves under the laws of the new order, different considerations

may apply.  A general public notice through the Provincial Gazette or local
newspapers, in many such cases, may not be sufficient
to give notice where a
large portion of the population which would be most affected by the notice is
illiterate and otherwise socially
disadvantaged.  Mrs Zondi is indeed
illiterate.  The thumbprint mark she affixed to her founding affidavit bears
testimony to
this.
[52]
The Ordinance further provides that if an animal
is too vicious to be driven to the pound, a police officer has the “authority

to issue instructions in regard to its destruction or other disposal as he may
see fit, but only upon notice to the owner if he
is known.”
[71]
  But if the viciousness only
manifests itself after the animal is in the pound, the authority to give such
instructions rests
with the magistrate, after notice to the livestock owner if
the owner is known.
[72]
Â
The poundkeeper is required to record any injury to or death of the impounded
animal as well as the cause of its death or injury.
[73]
  These matters need only be
entered in the pound book; nothing is said about notice to the livestock owner.
[53]
Against this background I now turn to consider
the constitutional challenge.
The
constitutional challenge
[54]
In the course of oral argument in this Court,
the applicant abandoned the attack on sections 8, 10(2) and 12 of the Ordinance,
but
persisted with the attack on sections 16(1), 29(1), 33, 34, 37 and 41(4).  This
Court, however, must still consider the constitutional
validity of all the
provisions that were declared invalid by the High Court, including those in
respect of which the applicant
no longer seeks confirmation.
[55]
The constitutional complaint against sections
16(1), 33, 34 and 37 was that they permit seizure and impoundment of
trespassing livestock
and their subsequent sale in execution without judicial
intervention and without notice to the livestock owner where the stockowner
is
not known.  This was said to be a violation of the right of access to courts.Â
Subsection (1) of section 29, the assessment
of damage provision, was
challenged on the ground that it had a discriminatory effect on African people.
[74]
  Its landownership and
franchise requirements were said to be designed to exclude African people from
assessing damages for trespass.Â
It was contended that this violated the right
to equality.
[56]
The constitutional complaint against sections 37
and 41(4) was that they either do not make provision for notice to the
stockowner
at all or that they do not require steps to be taken to trace the
stockowner where he or she is not known.  This was said to be
a violation of
the right to just administrative action guaranteed in section 33 of the
Constitution and a breach of the provisions
of PAJA.
[75]
  The applicant also contends
that the impugned provisions violate other provisions of the Constitution.
[76]
[57]
For his part, the MEC contended that the
impugned provisions do not prevent the owner of the impounded animals from
approaching
a court at any stage in the seizure and impoundment process to
secure the release of animals that have been unlawfully impounded.Â
He drew
attention to the provisions of the Ordinance that make it an offence to
unlawfully impound animals.
[77]
Â
Lastly, he contended that if the impugned provisions limit any of the applicant’s
constitutional rights, such limitation is
nevertheless justifiable under
section 36(1) of the Constitution.  The measures authorised by the impugned
provisions are necessary
to deal with the danger posed by trespassing animals,
the MEC argued.
Does the
scheme of the Ordinance violate the right of access to courts?
[58]
Section 34 of the Constitution guarantees the
right of access to courts:
“Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public hearing before
a
court or, where appropriate, another independent and impartial tribunal or
forum.”
[59]
In
Chief Lesapo v North West Agricultural Bank
and Another
,
[78]
this Court considered the meaning of section 34 in the context of self-help.  That
case involved a statutory provision which expressly
empowered the bank, “without
recourse to a court of law”, to attach and sell the assets of its defaulting
debtors through its
own agents and on such conditions as the bank’s board of
directors might determine.  The Court had the following to say of and

concerning the constitutional guarantee contained in section 34:
“The judicial process, guaranteed by s 34,
also protects the attachment and sale of the debtor’s property, even where
there
is no dispute concerning the underlying obligation of the debtor and on
the strength of which the attachment and execution takes
place.  That
protection extends to the circumstances in which property may be seized and
sold in execution and includes the control
that is exercised over sales in
execution.
On this analysis, s 34 and the access to courts
it guarantees for the adjudication of disputes are a manifestation of a deeper
principle;
one that underlies our democratic order.  The effect of this
underlying principle on the provision of s 34 is that any constraint
upon a
person or property shall be exercised by another only after recourse to a court
recognised in terms of the law of the land.
 . . .
Respect for the rule of law is crucial for
a defensible and sustainable democracy.  In a modern constitutional State like
ours,
there is no room for legislation which, as in this case, is inimical to a
fundamental principle such as that against self help.Â
This is particularly so
when the tendency for aggrieved persons to take the law into their own hands is
a constant threat.
This rule against self-help
is necessary for the protection of the individual against arbitrary and
subjective decisions and conduct
of an adversary.  It is a guarantee against
partiality and the consequent injustice that may arise.”
[79]
[60]
In
Lesapo
, the Court found that the
provisions involved infringed section 34 of the Constitution and breached the
rule of law by sanctioning
self-help and permitting the bank to be the judge in
its own cause.  In two other cases involving similar powers vested in the
Land
and Agricultural Bank of South Africa, the Court struck down such provisions as
an impermissible infringement of section 34.
[80]
Â
In striking down the provisions in issue, the Court found that they permit the
Land Bank to bypass the courts and give the bank
the sole discretion over the
conditions of sale.  It also found that the provisions involved authorised the
bank “to usurp the
inherent powers and functions of the courts by deciding its
own claims and relief.”
[81]
[61]
Section 34 is an express constitutional
recognition of the importance of the fair resolution of social conflict by
impartial and
independent institutions.  The sharper the potential for social
conflict, the more important it is, if our constitutional order
is to flourish,
that disputes are resolved by courts.  As this Court said in
Lesapo
:
“The right of access to
court is indeed foundational to the stability of an orderly society.  It
ensures the peaceful, regulated
and institutionalised mechanisms to resolve
disputes without resorting to self-help.  The right of access to court is a
bulwark
against vigilantism, and the chaos and anarchy which it causes.  Construed
in this context of the rule of law and the principle
against self-help in
particular, access to court is indeed of cardinal importance.”
[82]
[62]
Similar concerns informed an opinion of Harlan J
in the United States Supreme Court in
Boddie et al. v Connecticut et al
.
[83]
 The case concerned the “due
process” requirements of the Fourteenth Amendment, and the Court reasoned as
follows:
“At its core, the right to
due process reflects a fundamental value . . . .
Perhaps no characteristic
of an organized and cohesive society is more fundamental than its erection and
enforcement of a system
of rules defining the various rights and duties of its
members, enabling them to govern their affairs and definitively settle their

differences in an orderly, predictable manner.  Without such a ‘legal system,’
social organization and cohesion are virtually
impossible; with the ability to
seek regularized resolution of conflicts individuals are capable of
interdependent action that
enables them to strive for achievements without the
anxieties that would beset them in a disorganized society.  Put more
succinctly,
it is this injection of the rule of law that allows society to reap
the benefits of rejecting what political theorists call the
‘state of nature’ .
. . .
It is to courts, or other
quasi-judicial official bodies, that we ultimately look for the implementation
of a regularized, orderly
process of dispute settlement . . . .Without this
guarantee that one may not be deprived of his rights, neither liberty nor
property,
without due process of law, the State’s monopoly over techniques for
binding conflict resolution could hardly be said to be acceptable
under our
scheme of things.  Only by providing that the social enforcement mechanism must
function strictly within these bounds
can we hope to maintain an ordered
society that is also just.  It is upon this premise that this Court has through
years of adjudication
put flesh upon the due process principle.”
[84]
[63]
Section 34, therefore, requires not only that
individuals should not be permitted to resort to self-help, but it also
requires that
potentially divisive social conflicts must be resolved by courts,
or other independent and impartial tribunals.  Section 34 recognises
that it is
important to do so to ensure that orderly and fair solutions to such conflicts
are found, to promote social cohesion
and to avoid the exacerbation of division
and unfairness.  Determining whether it is necessary for such conflicts to be
brought
before courts will require a consideration of the potential for social
conflict in relation to the particular matters concerned,
the equality of arms
of the parties that are likely to be involved in such conflict, and the
practicalities of requiring such matters
to be resolved by courts, amongst
other things.
[64]
With these legal principles in mind, I now turn
to consider the constitutional challenges based on the violation of the right
of
access to courts.  Provisions that were the target of this challenge were
sections 16(1), 33, 34 and 37 of the Ordinance.  It
was contended and the High
Court found that they violate section 34 of the Constitution which guarantees
the right of access to
courts.
[65]
Shorn of words not germane to the present
discussion, these provisions read as follows:
Subsection (1) of section 16 provides that:
“The owner of any land upon which any
animal is found trespassing may impound such animal: Provided that before any
person may
impound any animal which belongs to the owner of land immediately
adjacent and which bears the registered brand of that owner, he
shall give at
least twelve hours’ written or verbal notice of the trespass to such owner.”
Section 33:
“Lists of impounded animals to be sent to
Provincial Secretary. –(1) On the first and fifteenth days of every month the
poundkeeper
shall transmit to the Provincial Secretary in the form prescribed,
a list of all animals in the pound which have not been included
in any earlier
list and the Provincial Secretary shall cause the sale of such animals to be
advertised in the next issue of the
Gazette
and in a newspaper
circulating in the district in which the pound is situate.  The advertisement
shall also indicate the place
of sale and the date of sale being any date that
he thinks fit not less than ten or more than thirty days from the date of the
publication of such advertisement.
[85]
(2) Notwithstanding anything to the
contrary contained in subsection (1), whenever any donkey or pig is impounded
the poundkeeper
shall, as soon as may be, submit a statement of its sex and
colour and a description and the position of any brand or mark upon
it, to the
Provincial Secretary, who shall cause the sale thereof to be advertised in the
next available issue of the
Gazette
and in a newspaper, for any date
that he thinks fit.
(3) The poundkeeper shall post a copy of
the advertisement of sale in some conspicuous place at or near the pound until
the date
of sale and shall replace any copy which becomes damaged or
illegible.”
[86]
Section
34:
“Sales of impounded animals. –(1) Sales of
animals under this Ordinance shall commence at 10h00 on the day appointed
therefor
and shall be conducted by the poundkeeper or other person acting on
his behalf, by public auction and for cash.
(2) All animals advertised for sale, unless
previously released, shall on the day appointed for their sale be effectively
marked,
on the right shoulder with the letter P by or at the instance of the
poundkeeper.
(3) The poundkeeper may whenever he may
deem it proper so to do, place a reserve upon any animal offered by him for
sale: Provided
that such reserve shall not exceed the amount which the owner of
such animal would have been required to pay in terms of this Ordinance.”
[87]
And Section 37:
“Animals unsuccessfully
offered for sale. –If no offer is made for any animal put up for sale the
poundkeeper shall report to
the magistrate accordingly and state the estimated
value of the animal and the fees, charges and other expenses incurred in
respect
thereof, and the magistrate may give the poundkeeper such instructions
as he may deem proper whether the animal is to be re-offered
for sale or is to
be destroyed or otherwise disposed of: Provided that whenever any donkey or pig
has been unsuccessfully offered
for sale the poundkeeper may destroy the same
at any time after the conclusion of the sale.”
[88]
(a) The
impounding provision: section 16(1)
[66]
Section 16(1) of the Ordinance permits a
landowner to decide whether trespass has occurred and to act upon such decision
by seizing
and impounding the livestock.  A reading that would require the
landowner to first obtain a court order prior to impounding the
trespassing
animals would indeed be inconsistent with the scheme of the Ordinance, whose
very purpose is the immediate seizure
and impoundment of trespassing animals
without a court order.  It is arguable therefore that it may limit the right of
access
to courts.  This question however need not be decided.  Even if it did,
it would certainly be justifiable.
[67]
As will appear more fully below, powers of the
kind authorised by section 16(1) are necessary to deal with trespassing and
straying
animals.
[89]
Â
Such animals are a danger to property and human beings.  It is therefore
necessary to take immediate action against such animals.Â
To require the landowner
to first obtain a court order before impounding the trespassing or straying
animals may well result in
more damage to property or expose human beings and
other animals to danger.
[68]
Standing alone, there is therefore nothing wrong
with section 16(1).  The problem with this provision lies elsewhere.  In
combination
with sections 33, 34 and 37, section 16(1) puts in place an
impounding scheme that effectively prevents disputes that could give
rise to
social conflict from reaching the courts.  Section 16(1) triggers the process.  Section
16(1) therefore should be seen
in the context of the scheme, which comprises
sections 33, 34 and 37. Â
            (b)
The execution provisions: sections 33, 34 and 37
[69]
In effect, under sections 33 and 34, if the
stockowner is unable to pay the impoundment fees and other charges, the
impounded animals
must be sold by public auction to recover such amounts.  The
livestock is sold regardless of the amount owing in relation to the
value of
the impounded livestock.  Once in the pound system, the poundkeeper is required
to furnish a list of impounded livestock
to the provincial secretary.  This
list must be furnished on the first and fifteenth day of every month.  Upon
receipt of the
list, section 33 says that the “Provincial Secretary shall cause
the sale of such animals to be advertised”.
[70]
The conditions of the sale are determined by the
poundkeeper.  In terms of section 34, the poundkeeper “may whenever he may deem

it proper so to do, place a reserve upon any animal offered by him for sale”.  But
“such reserve shall not exceed the amount”
that the livestock owner is liable
to pay under the Ordinance.  There is nothing to guide the poundkeeper in the
exercise of this
wide discretion.  In effect therefore livestock can be sold at
a price that is significantly less than its market value.
[71]
In terms of section 37, animals that remain
unsold at the auction are to be reported to the local magistrate, who “may give
the
poundkeeper such instructions as he may deem proper whether the animal is to
be re-offered for sale or is to be destroyed or otherwise
disposed of”.  There
is nothing to guide the magistrate in the exercise of these far-reaching
powers.  This of course does
not apply to donkeys or pigs, which may be
destroyed by the poundkeeper at any time after the conclusion of the sale.  Once
again,
no guidance is given to the poundkeeper.
[72]
In
Lesapo
this Court held that the
protection guaranteed by section 34 extends to attachment and sale of a
debtor’s property.  This protection
was held to extend to cases where there is
no dispute over the underlying obligation giving rise to attachment and
execution.Â
As the Court held, “[t]hat protection extends to the circumstances
in which property may be seized and sold in execution and includes
the control
that is exercised over sales in execution.”
[90]
Â
This protection is necessary to ensure that the sale is conducted in a manner
that enables the debtor to recover the value of
the property sold.
The
combined effect of sections 16(1), 33, 34, and 37
[73]
The combined effect of sections 16(1), 33, 34
and 37 is to put in place an impounding scheme which commences with the seizure
and
impoundment of livestock, followed by a process of assessment of damages
for trespass, and culminates in the sale of the impounded
livestock to recover
the landowners’ fees or damages and the fees and expenses incurred by the
poundkeeper.  These provisions
are interlinked; the one cannot work without the
others.  It is therefore not helpful to look at these provisions separately
from
one another.  They must be considered together as part of a scheme.
[74]
The scheme permits the landowner to seize the
livestock and cause it to be detained and sold by the poundkeeper.  The sale is
on
conditions stipulated by the poundkeeper.  The purpose of the sale is to
secure payment of trespass fees or damages and other impoundment
fees and
expenses.  The scheme denies the livestock owner the protection of the judicial
process and supervision exercised by
a court through its rules over the process
of execution.  From start to finish there is no judicial intervention.
[75]
Manifestly, the scheme
does not
contemplate the involvement of the courts.  The execution process created by
sections 33, 34 and 37 does not go through
the ordinary courts.  The ordinary
civil process of execution is not employed.  The landowner is permitted to
bypass the courts
and recover damages through an execution process carried out
by a private businessperson or an official of a municipality without
any court intervention.
[76]
The effect of the scheme, therefore, is to
remove from the court’s scrutiny one of the sharpest and most divisive
conflicts of
our society.  The problem of cattle trespassing on farm land must
be seen in the context I have outlined above.  It is not merely
the ordinary
agrarian irritation it must be in many societies.  It is a constant and bitter
reminder of the process of colonial
dispossession and exclusion.  The potential
for conflict between landless stockowners, whose forebears were deprived of
their
land, and farmers must be acknowledged.  Moreover, in many cases,
landless stockowners, for whom cattle constitutes not only a
form of material
security, but also a way of life of tremendously significant social and
communal importance, will have scant ability
to approach courts for relief when
their cattle are impounded.  The effect of the impounding scheme as described,
therefore, is
to effectively remove from the arena of courts the sharp
conflicts which will often underlie the process of impoundment.
[77]
This kind of scheme manifestly limits the right of access to
courts.
[78]
 In all the circumstances, the joint effect of
sections 16(1), 33, 34 and 37 is to limit the right against self-help
guaranteed
in section 34 of the Constitution.
Are these
provisions justified?
[79]
The MEC contended nevertheless that sections
16(1), 33, 34 and 37 of the Ordinance are reasonable and justifiable under
section
36(1) of the Constitution.  It was submitted on behalf of the MEC that
animals are an inherent danger to humans, crops, property
and to other
animals.  If animals trespass unsupervised, this creates immediate and present
danger which justifies impoundment,
so it was argued.
[80]
The need to take immediate action against
trespassing animals cannot be gainsaid.  Unattended animals may cause damage to
crops
and property.  They could also pose safety or health hazards to other
animals and members of the public.  It is therefore necessary
to have a
mechanism for dealing quickly and effectively with animals found trespassing on
land or straying in public places or
on public roads.  The need for such
mechanisms must be viewed against the responsibility of livestock owners to
ensure that their
animals do not trespass onto other people’s land.  If they
should neglect their livestock, they must be prepared to pay the price
for such
neglect.  Pound legislation is therefore necessary to deal with those livestock
owners who neglect their responsibilities.
[81]
But the importance of the purpose of the limitation
of a right must be viewed against the nature of the right limited, the nature

and extent of the limitation and the existence of less restrictive means to
achieve that purpose.  Measures taken must strike
a balance between the rights
of landowners and the rights of livestock owners.  They should not emphasise
the rights of landowners
over those of livestock owners.  They must respect the
rights of each and, where possible, reconcile them, with due regard to the

constitutional rights of each.
[82]
The right of access to courts is an aspect of
the rule of law.  And the rule of law is one of the foundational values on
which
our constitutional democracy has been established.  In a constitutional
democracy founded on the rule of law, disputes between
the state and its
subjects, and amongst its subjects themselves, should be adjudicated upon in
accordance with law.  The more
potentially divisive the conflict is, the more
important that it be adjudicated upon in court.  That is why a constitutional
democracy
assigns the resolution of disputes to “a court or, where appropriate,
another independent and impartial tribunal or forum.”
[91]
  It is in this context that
the right of access to courts guaranteed by section 34 of the Constitution must
be understood.
[83]
There is no reason why, once the animals have
been impounded, the judicial process should not be allowed to supervise the
process
of execution through its rules.  Once the animals have been removed to
the pound, there is no longer any need for immediate action.Â
It is not
necessary therefore to deny the livestock owner the supervision exercised by
the courts through their rules over the
process of execution.  Yet this is what
sections 33, 34 and 37 of the Ordinance permit.
[84]
The system is not only liable to abuse by
unscrupulous landowners but it undeniably works hardship against the vulnerable
landless
African stockowners.  For some stockowners it has resulted in a huge
loss of livestock, often their only asset.  Once impounded,
livestock may be
sold at a significantly lower price than its actual market value.  As Mrs Zondi
alleges, the threat of impounding
can also be used to harass labour tenants by
ordering them to remove their livestock from the farms they may have occupied
for
many years.  As the circumstances of Mrs Zondi illustrate, they have no
cash at the bank.  Livestock is their only valuable asset
and forms their only
source of livelihood.  The impounding of livestock has far-reaching
consequences for them as they stand to
lose their only asset.  They are caught
in a vicious cycle of poverty and landlessness that has been historically
perpetuated
on them.  Given these social conditions, the impounding scheme
works harshly in rural areas.  It is invasive of rights.
[85]
The records of the Weenen Pound for the period
January 1990 to January 1992 show the extent of impounding and who is most
adversely
affected by it.  It is reported that during the period 1990-1991 more
than R240 000 was paid to the Weenen Town Board for the release
of impounded
cattle.  During this two-year period 332 African stockowners had their cattle
impounded while only 7 white farmers
were affected.  Most of the African
stockowners affected were labour tenants on white farms who had to pay more than
R105 000
in total.
[92]
Â
It is further reported that between 1991 and 1992 more than 78 stockowners
could not afford to pay for the release of their livestock,
resulting in the
loss of their livestock.
[93]
[86]
In all the circumstances, the impounding scheme
permitted by the combined effect of sections 16(1), 33, 34 and 37 of the
Ordinance
cannot be said to be reasonable and justifiable under the
Constitution.  It is therefore inconsistent with the right of access
to courts.
Does the
scheme discriminate unfairly?
[87]
Section 9(3) of the Constitution provides:
“The state may not
unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender,
sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion,
conscience, belief,
culture, language and birth.”
[88]
Section 29(1) was challenged on the ground that
it discriminates unfairly on the basis of race and landlessness.  It provides:
“If the owner of any land (other than
ordinary grassland) on which any animal has trespassed has, in consequence of
such trespass,
suffered damage in an amount exceeding the applicable trespass
fee contemplated by section 27, he may in the prescribed manner within
a period
of ninety-six hours of the discovery of such trespass have the extent of such
damage monetarily assessed by two disinterested
persons each of whom shall be
either a landowner or a voter as defined in section 1 of the Electoral Act,
1979 (Act 45 of 1979);
provided that—
(a)
if the owner of such animal is known he shall be informed of such
trespass and may, within twelve hours of being so informed, nominate
one of
such disinterested persons;
(b)
if such disinterested persons are unable to
reach agreement as to the extent of such damage, the assessment of such extent
shall
be determined by an umpire appointed by such disinterested persons or, in
the event of disagreement in this regard between such
persons, by the
Administrator, and
(c)
every assessment under this subsection shall be
subject to confirmation in the prescribed manner
.”
[89]
The High Court found that section 29(1)
discriminates unfairly against the landless on the grounds of colour and landownership
in
violation of section 9 of the Constitution.  The reasoning of the High Court
was based on the requirement in section 29(1) that
“disinterested persons” who
assess damages must either be a landowner or a voter as defined in section 1 of
the Electoral Act.Â
The High Court reasoned that because black people could not
be voters under the Electoral Act, section 29(1) discriminated on the
grounds
of colour and landownership.
[90]
The question whether section 29(1) is
discriminatory requires an assessment of its purpose and effect.  The purpose
and effect
of a statute are relevant in determining its constitutionality.
[94]
  A statute can be held to be
invalid either because its purpose or its effect is inconsistent with the
Constitution.  If a statute
has a purpose that violates the Constitution, it
must be held to be invalid regardless of its actual effects.  The effect of
legislation
is relevant to show that although the statute is facially neutral,
its effect is unconstitutional.  This will be the case where,
for example, the
legislation has a discriminatory impact on a particular racial group.
[91]
Of course purpose and effect are interrelated.  The
object that the legislature seeks to achieve inspires statutes and this object

is realised through the impact produced by the implementation of the statute.  Thus
purpose and effect, respectively in the sense
of the legislative object and its
ultimate impact, are clearly linked, if not indivisible.  Intended and actual
effects have often
been looked to for guidance in assessing the legislation’s
object and thus, its validity.  And in constitutional adjudication
the
assessment of the object of a statute ensures that the aims and objectives of a
statute are consistent with the Bill of Rights
in the Constitution.
[92]
The constitutional validity of section 29(1)
must therefore be assessed in the light of the purpose and effect of the
franchise
and land ownership qualifications required by the section.
[95]
  And this must be considered
in the light of our history.
[96]
[93]
One of the qualifications for eligibility to
assess damages under section 29(1) is the right to vote under the Electoral Act.
[97]
  The reference to the
Electoral Act was deliberate and intended to ensure the exclusion of black
people from assessing damages.Â
This is manifest from the history of section
29(1).
[98]
Â
In terms of section 3(1) of the Electoral Act, only white persons had the right
to vote.
[99]
Â
The manifest object of the voter qualification in the section was therefore to
exclude black people, as they did not enjoy the
right to vote under the
Electoral Act.  This is made clear by the reference in the section to a voter
as defined in section 1
of the Electoral Act.
[100]
[94]
The alternative qualification for assessment of
damages is land ownership.  This qualification clearly discriminates against
those
who are landless.  We know that the majority of the landless were, and
continue to be, African people who were dispossessed of
their land during the
apartheid era.  The landless are one of the most vulnerable groups.  They had
to tolerate all kinds of
abuses in order to secure a place to stay.  Their only
valuable asset was livestock, as the case of Mrs Zondi amply demonstrates.Â

They were denied the opportunity to take part in a process that could result in
the loss of their only asset.  The impact of this
discrimination on the
landless was severe.  They were discriminated against on the basis of a
condition over which they had no
control.
[95]
But the discrimination was not just against the
landless; it was against landless black people.  Landless white persons were
eligible
for appointment because they still would qualify under the franchise
requirement.  By contrast landless black people could not
qualify, as they were
hit by the franchise requirement.  Thus white people could always qualify under
the section, whether as
landowners or voters, while black people could not.  The
object and effect of the qualifications in section 29(1) were to exclude
black
people from the scheme of the Ordinance.  The franchise requirement in my view
gives up the game.  If it had been intended
to allow all races to be eligible
for the assessment of damages, the franchise requirement would not have been
included in the
provision.
[96]
Section 29(1) is therefore manifestly and
fundamentally racist in its purpose and effect.  Its purpose and effect are to
discriminate
on the basis of race, a ground listed in section 9(3) of the
Constitution.  Its purpose cannot be reconciled with our Constitution,
in
particular, our Bill of Rights.  A provision such as this, the object of which is
manifestly racist, is incapable of being
read in conformity with our
Constitution.  The object of the section is a function of the intent of those
who drafted and enacted
the provision at the time.  The section carries the
stamp of its time.
[97]
Section 29(1) therefore limits the right to
equality as guaranteed in section 9(3) of the Constitution.  Such a limitation
can
hardly be reasonable or justifiable under our new constitutional order.  It
follows therefore that section 29(1) of the Ordinance
read together with, and
seen against the backdrop of the impounding scheme of which it is an integral
part, perpetuates an impounding
scheme that is inconsistent with the right to
equality guaranteed by section 9(3) of the Constitution.
The
challenge based on the right to fair administrative action
[98]
Two
groups of sections were the target of this challenge: those that are silent on
whether notice must be given to the stockowner
(sections 12 and 37); and those
that require notice to be given to stockowners who are known (sections 8,
10(2), and 41(4)).Â
It will be convenient to follow this grouping in evaluating
this challenge.  But before evaluating the constitutionality of these

provisions it is necessary to address two preliminary issues that arise from
the finding of the High Court.  The first is the
interrelationship between the
Constitution and PAJA.  The other is whether the impugned provisions involve
administrative action.
 The High Court found that these provisions violated the
right to administrative justice guaranteed by section 33 of the Constitution

read with section 3(1) of PAJA.  Implicit in this finding is the proposition
that the impugned provisions involve administrative
action.
(a)
Interaction between section 33 of the Constitution and PAJA
[99]
Section 33 of the Constitution guarantees to
everyone “the right to administrative action that is lawful, reasonable and
procedurally
fair.”  As its preamble makes clear, PAJA was enacted to give
effect to section 33 of the Constitution.  However, PAJA cannot
be used to
evaluate a constitutional challenge.  A constitutional challenge must be
evaluated under section 33 of the Constitution.Â
Generally, PAJA only comes
into the picture when it is sought to review administrative action.  Ordinarily
anyone who wishes to
review any administrative action must now base the cause
of action on PAJA.  This is so because “[t]he cause of action for judicial

review of administrative action now ordinarily arises from PAJA, not from the
common law as in the past.”
[101]
[100]
In
Bato Star
we had occasion to consider
the place of PAJA in the context of our Constitution.  On that occasion we
said:
“The provisions of section 6 divulge a
clear purpose to codify the grounds of judicial review of administrative action
as defined
in PAJA.  The cause of action for the judicial review of
administrative action now ordinarily arises from PAJA, not from the common
law
as in the past.  And the authority of PAJA to ground such causes of action
rests squarely on the Constitution.  It is not
necessary to consider here
causes of action for judicial review of administrative action that do not fall
within the scope of PAJA.Â
As PAJA gives effect to s 33 of the Constitution,
matters relating to the interpretation and application of PAJA will of course

be constitutional matters.”
[102]
[101]
That said, however, it does not mean that PAJA
has no role when a statute is challenged on the grounds that it violates
section
33.  PAJA was enacted pursuant to the provisions of section 33,
[103]
which requires the enactment
of national legislation to give effect to the right to administrative action.  PAJA
therefore governs
the exercise of administrative action in general.  All
decision-makers who are entrusted with the authority to make administrative

decisions by any statute are therefore required to do so in a manner that is
consistent with PAJA.  The effect of this is that
statutes that authorise
administrative action must now be read together with PAJA unless, upon a proper
construction, the provisions
of the statutes in question are inconsistent with
PAJA.
[104]
[102]
Thus, where there is a constitutional challenge
to the provisions of a statute on the ground that they are inconsistent with
the
provisions of section 33 of the Constitution, the proper approach is first
to consider whether the provisions in question can be
read in a manner that is
consistent with the Constitution.  If they are capable, they will ordinarily
pass constitutional muster.Â
This approach to the construction of a statute is
consistent with the approach to constitutional interpretation which has been
developed by this Court that, where possible, legislation must be construed
consistently with the Constitution.
[105]
Â
And this approach to constitutional interpretation is consistent with section
39(2) of the Constitution.
[106]
[103]
It is in this context that the interaction
between section 33 of the Constitution and PAJA must be understood.  The next
question
to determine is whether the impugned provisions contemplate
administrative action as contemplated in section 33 of the Constitution.
(b) Do
the impugned provisions involve administrative action?
[104]
In
President of the Republic of South Africa
and Others v South African Rugby Football Union and Others
[107]
this Court held that in order to determine whether a particular act constitutes
administrative action, the inquiry should focus
on the nature of the power
exercised and not the identity of the actor.
[108]
  It said:
“In s 33 the adjective ‘administrative’ not
‘executive’ is used to qualify ‘action’.  This suggests that the test
for
determining whether conduct constitutes ‘administrative action’ is not the
question whether the action concerned is performed
by a member of the executive
arm of government.  What matters is not so much the functionary as the
function.  The question is
whether the task itself is administrative or not.Â
It may well be, as contemplated in
Fedsure
, that some acts of a
legislature may constitute ‘administrative action’.  Similarly, judicial
officers may, from time to time,
carry out administrative tasks.  The focus of
the enquiry as to whether conduct is ‘administrative action’ is not on the arm

of government to which the relevant actor belongs, but on the nature of the
power he or she is exercising.”
[109]
Â
(Footnotes omitted.)
And then
said:
“Determining whether an action should be
characterised as the implementation of legislation or the formulation of policy
may be
difficult.  It will, as we have said above, depend primarily upon the
nature of the power.  A series of considerations may be
relevant to deciding on
which side of the line a particular action falls.  The source of the power,
though not necessarily decisive,
is a relevant factor.  So, too, is the nature
of the power, its subject-matter, whether it involves the exercise of a public
duty
and how closely it is related on the one hand to policy matters, which are
not administrative, and on the other to the implementation
of legislation,
which is.  While the subject-matter of a power is not relevant to determine whether
constitutional review is appropriate,
it is relevant to determine whether the
exercise of the power constitutes administrative action for the purposes of s
33.  Difficult
boundaries may have to be drawn in deciding what should and what
should not be characterised as administrative action for the purposes
of s 33.Â
These will need to be drawn carefully in the light of the provisions of the
Constitution and the overall constitutional
purpose of an efficient, equitable
and ethical public administration.  This can best be done on a case by case
basis.”
[110]
Â
(Footnotes omitted.)
[105]
The impugned provisions involve the exercise of
a public power derived from the Ordinance.  Sections 8 (the decision to impound

animals) and 12 (making decisions in relation to the disposal of injured or
dead animals and the destruction of animals) involve
the performance of a
public duty.  Similarly, the magistrate, in issuing instructions in regard to
the destruction or the disposal
of vicious animals (section 10(2)), or re-offer
for sale or destruction of animals that remain unsold after an auction (section

37), performs a public duty.  So too does the police officer in issuing
instructions in regard to destruction or disposal of animals
that are too
vicious to be driven to the pound (section 41(4)).  It follows therefore that
the exercise of the powers conferred
by the impugned provisions constitutes
administrative action.
[106]
But do the impugned provisions limit the rights
guaranteed in section 33 of the Constitution?  It will be convenient to
distinguish
between those provisions that do not make provision for notice at
all and those that require notice only where the identity of the
livestock
owner is known.
(c)
Sections 12 and 37
[107]
Section 12 of the Ordinance provides:
“Death or injury to impounded animals. –If
any impounded animal dies or is destroyed or is injured, the poundkeeper shall
enter
in his pound book a description of such animal and the cause of its death
or injury or, if it was destroyed on instructions, particulars
of such
instructions.”
And section 37:
“Animals unsuccessfully offered for sale.
–If no offer is made for any animal put up for sale the poundkeeper shall
report to
the magistrate accordingly and state the estimated value of the
animal and the fees, charges and other expenses incurred in respect
thereof,
and the magistrate may give the poundkeeper such instructions as he may deem
proper whether the animal is to be re-offered
for sale or is to be destroyed or
otherwise disposed of: Provided that whenever any donkey or pig has been unsuccessfully
offered
for sale the poundkeeper may destroy the same at anytime after the
conclusion of the sale.”
[111]
[108]
Both sections 12 and 37 are silent on whether
notice should be given to the stockowner.  The question whether, by their
silence,
they exclude a notice and a hearing, is a matter of construction.  As
this Court held in
Transvaal Agricultural Union v Minister of Land Affairs
and Another
:
[112]
“The mere fact that the legislation does
not specifically make provision for such a hearing does not mean that there is
indeed
no such right.  It is well established that
‘. . . when a statute empowers a public
official or body to give a decision prejudicially affecting an individual in
his liberty
or property or existing rights, the latter has a right to be heard
before the decision is taken (or in some instances thereafter—see
Cabinet
for the Territory of South West Africa v Chikane and Another
1989 (1) SA
349
(A) at 379G), unless the statute expressly or by implication indicates the
contrary’.  (Footnote omitted.)
The question whether such right has been
excluded by the Act in the present case depends, therefore, upon the proper
interpretation
of the statute.”
[113]
[109]
Sections 12 and 37 are capable of being read so
as to require prior notice where the stockowner is known or where, with the
exercise
of reasonable diligence, the stockowner could be ascertained.  Such a
construction is not inconsistent with their language.  Thus
construed, these
provisions are constitutional.  The High Court was enjoined to construe these
provisions in a manner that is
consistent with section 33 of the Constitution,
as required by section 39(2) of the Constitution.  The High Court therefore
erred
in failing to do so.  It follows therefore that sections 12 and 37 of the
Ordinance are not inconsistent with section 33 of the
Constitution.  The order
of invalidity in this regard cannot therefore be upheld.
(d) Sections
8, 10(2) and 41(4)
[110]
Section 8 of the Ordinance provides:
“Notice to owners of impounded animals. –
Whenever the name of the owner of any impounded animal is known to the
poundkeeper
he shall forthwith send through the post or otherwise a written
notice addressed to such owner at his place of residence, informing
him of the
fact that such animal has been impounded.”
Section 10(2):
“If any impounded animal shall prove to be
dangerously vicious or shall appear to be worthless owing to any serious and
incurable
defect, disablement or disease, the poundkeeper shall submit a report
in writing to the magistrate who shall have authority to issue
such
instructions in regard to its destruction or other disposal as he may see fit,
but only upon notice to the owner of the animal
if he is known.”
And section 41(4):
“If the police officer is satisfied that
the animal is too vicious, intractable or wild to be driven to the pound, he
shall have
authority to issue instructions in regard to its destruction or
other disposal as he may see fit, but only upon notice to the owner
if he is
known.”
[111]
These sections make provision for notice to the
owner but only in the event of the owner being known.  The High Court held that

sections 8, 10(2) and 41(4) were constitutionally invalid because they made no
provision for tracing the livestock owner, and if
the livestock owner cannot be
traced, for seeking directions from the court as to what further steps can be
taken to establish
the identity of the owner.  The High Court reasoned that these
steps were necessary if the livestock owner is to be given a reasonable

opportunity to make representations.  But does section 33 of the Constitution
require this?
[112]
The right to notice before an adverse decision
is made is a fundamental requirement of fairness.  Notice provides a person
affected
with the opportunity to make representations as to why an adverse
decision should not be made.  It is a fundamental element of
fairness that
adverse decisions should not be made without affording the person to be
affected by the decision a reasonable opportunity
to make representations.  A hearing
can convert a case that was considered to be open and shut to be open to some
doubt, and a
case that was considered to be inexplicable to be fully
explained.  The reasonable opportunity to make representations can generally
be
given by ensuring that reasonable steps are taken to bring the fact of the
decision-making to the attention of the person to
be affected by the decision.
[114]
[113]
As a general matter, having regard to the
consequences that an administrative decision might have on the individual, the
decision-maker
ought to take some steps to ascertain the identity of the
individual to be affected by the decision for the purposes of notice and
the
opportunity to be heard.  Procedural fairness, by its very nature, imports the
element of fairness.  And fairness is a relative
concept which is informed by
the circumstances of each particular case.  In each case the question is
whether fairness demands
that steps be taken to trace the identity of the
person against whom a decision is to be made.  It is therefore neither possible

nor desirable to attempt to define the circumstances where the dictates of
fairness will require the decision-maker to take steps
to ascertain the identity
of the livestock owner.
[114]
The question whether fairness requires the
decision-maker to take some steps to ascertain the identity of the person
against whom
the decision is to be made must be determined with due regard to
the circumstances of each case.  The overriding consideration
will always be
what does fairness demand in the circumstances of a particular case.  The
availability of information which, with
the exercise of reasonable diligence,
renders it possible to ascertain the identity of a person is a relevant
consideration.Â
So is the urgency required in making the decision.
[115]
The question is whether the impugned provisions
can be read so as to require steps to be taken to ascertain the identity of the
stockowner where this can be done with the exercise of reasonable diligence.Â
Section 18 of the Ordinance permits the landowner
to destroy a trespassing
donkey or pig, unless it is distinctively branded or marked or unless he knows
or can, with reasonable
diligence, ascertain to whom it belongs.  Implicit in
this provision is the requirement that the landowner must take reasonably

diligent steps to ascertain the stockowner of the animals that are
distinctively branded or marked, or where the owner could easily
be traced.Â
The question is whether by inclusion, this provision intended to exclude this reasonable
diligence requirement in
relation to other provisions.  This is a matter of
construction.
[116]
There is nothing in the language of these
provisions that suggests that by failing to require steps to ascertain the
identity of
the owner, where this can be done with the exercise of reasonable
diligence, it was intended to exclude such steps from being taken.
 The
impugned provisions are capable of being construed consistently with the
Constitution to require notice to the stockowner
where the stockowner can, with
the exercise of reasonable diligence, be established.
[115]
  Thus construed, sections 8,
10(2) and 41(4) of the Ordinance are consistent with the Constitution.  It
follows therefore that
the order of invalidity in this regard cannot be upheld
either.
The other
constitutional challenges
[117]
Inasmuch as the access to courts challenge has
been successful, it is unnecessary to decide on the other constitutional
challenges.Â
Even if the applicant was to succeed on any of these challenges,
no additional substantive relief could be granted to her.  Under
these
circumstances, it is unnecessary to consider these additional constitutional
challenges.
Summary
[118]
To sum up, the combined effect of sections
16(1), 29(1), 33, 34 and 37 of the Ordinance is to put in place an impounding
scheme
that is inconsistent with the Constitution.  The scheme is triggered by
section 16(1), which authorises the landowner to seize
and impound trespassing livestock.Â
The scheme permits the sale of impounded livestock to recover impoundment fees
and other charges
by the poundkeeper, who, in his or her sole discretion,
determines the conditions upon which the sale is to be conducted.  From
start
to finish it does not involve the judicial process.  Furthermore, it discriminates
against black people, in particular,
African people, and it excludes them from
being appointed as assessors of damages for trespass.  This scheme violates the
right
of access to courts guaranteed by section 34 of the Constitution and the
right to equality guaranteed in section 9(3) of the Constitution.
[119]
Accordingly, sections 16(1), 29(1), 33, 34 and
37 are inconsistent with section 34 of the Constitution.  In addition, section
29(1)
is inconsistent with section 9(3) of the Constitution.
[120]
Sections 8, 10(2), 12, and 41(4) are, however,
capable of being read in a manner that is consistent with the Constitution and
are
therefore not inconsistent with the Constitution.
Remedy
[121]
Certain of the impugned provisions have been
found to be inconsistent with the Constitution.  It now remains to consider
what the
appropriate remedy should be.  As a general matter, there are three
possible remedies for a breach of a constitutional right, namely,
severing
words from a provision, reading words into a provision and striking down the
provision.  Ordinarily, the severance of
words from a statutory provision and
reading words into a provision are to be preferred because they interfere less
with the legislative
scheme.  However, they are not always the appropriate
remedies.
[122]
This Court has previously delineated the
principles that should guide it in deciding whether words should be severed
from a provision
or read into one.
[116]
 In the first place, there
are two primary considerations to be kept in mind: the need to afford
appropriate relief to successful
litigants, on the one hand, and the need to
respect separation of powers and, in particular, the role of the legislature as
the
institution that is entrusted with the task of enacting legislation, on the
other.  In the second place, the provision which results
from severance or
reading words into the statute should interfere with the laws adopted by the
legislature as little as possible.
[117]
Â
What is required therefore is for a court to endeavour to be as faithful as
possible to the legislative scheme within the constraints
of the Constitution.
[123]
A court should be reluctant to read-in or sever
words from a provision if to do so would require the court to engage in the
details
of law-making, a constitutional activity that is assigned to
legislatures.  Similarly, where curing a defect in the provision would
require
policy decisions to be made, reading-in or severance may not be appropriate.Â
So too where there are a range of options
open to the legislature to cure a
defect.  This Court should be slow to make choices that are primarily to be
made by the legislature.
[118]
Â
Finally, it must be borne in mind that whatever remedy a court chooses, it is
always open to the legislature, within constitutional
limits, to amend the
remedy granted by the court.
[124]
With those principles in mind, I now turn to
consider what the appropriate remedy is in this case.
[125]
A review of the Ordinance discloses an
orchestrated scheme for: seizure of trespassing animals and their subsequent
impoundment;
a process of assessment of damages for trespass from which
landless black people are excluded; the sale of impounded animals if
the owner
is unable to pay the impoundment damages, fees and other expenses; and the
destruction of unsold animals.  At the heart
of the scheme is the immediate
seizure of animals without notice to livestock owners and without a court
order, followed by an
execution process to recover fees or damages for trespass
and other impoundment expenses and fees in which there is no judicial

intervention.  The offending provisions are part of this scheme.  The scheme is
unconstitutional as it violates both the right
of access to courts and the
right to equality.
[126]
The impounding scheme is put in place by
sections 16(1), 29(1), 33, 34, and 37 of the Ordinance which have been found to
be inconsistent
with section 34 of the Constitution and, in the case of section
29(1), to be inconsistent with section 9(3) of the Constitution.Â
But, as found
earlier, these provisions are an integral part of the impounding scheme of the
Ordinance.  If any one of them is
excised, the impounding scheme will become
unworkable.  And if these provisions are severed from the Ordinance, the
remaining
provisions of the Ordinance will not give effect to the main objects
of the Ordinance.  The main objects are the immediate impoundment
of
trespassing animals, assessment of damage caused by the trespassing animals and
the sale by public auction of such animals to
recover impounding fees and
expenses.  Without these provisions, therefore, the objects of the Ordinance
cannot be carried out.
[127]
In these circumstances, either reading-in or
severance would require extensive interference with the impounding scheme of
the Ordinance
as put in place by the impugned provisions.  Indeed, to remedy
the inconsistency would require this Court to engage in the details
of
law-making, a constitutional activity assigned to legislatures.
[128]
It would indeed be inappropriate for this Court
to seek to remedy the inconsistency in the Ordinance.  The task of determining
what impounding scheme must be put in place is primarily the task of the
legislature and should be undertaken by it.  In the process
of determining the
appropriate impounding scheme, the legislature will have to make certain policy
decisions.  For example, the
legislature will have to decide when and how there
should be judicial intervention, who may assess damages for trespass, and how

and when notification of trespass is to be communicated to stockowners.  There
is a range of options in this regard.  A factor
which cannot be ignored is the
fact that the Department of Traditional and Local Government Affairs is in the
process of drafting
a provincial Act which will repeal the Ordinance.  In these
circumstances, it is not desirable that this Court should attempt to
revise the
Ordinance.
[129]
It follows therefore that neither reading-in nor
severance is appropriate and that the only appropriate remedy is to strike down

the impounding scheme and the offending provisions which are an integral part
of that scheme.  But the legislature must be given
time to attend to the
matter.  There is a Bill, presently pending, which is aimed at revising the
pound legislation.  Counsel
for the MEC was unable to indicate how long the
process will take.  However, given the fact that there is a Bill, it should not

take more than 12 months to enact such legislation.  But what is to happen in
the interim?  The infringement of constitutional
rights cannot be allowed to
continue in the interim.  On the other hand, there is a need to protect
landowners against trespassing
animals.
[130]
The question is what is a just and equitable
order to make in terms of section 172(1)(b) of the Constitution which will
protect
constitutional rights pending the revision of the pound legislation.Â
Such relief should ensure that there is at least notice of
trespass to
stockowners and that there is judicial supervision of the process of
execution.  Such relief should protect both the
rights of stockowners and
landowners.  But what is that relief?
[131]
Section 16(1) of the Ordinance only requires
notice of trespass to a stockowner who happens to be the owner of land that is
immediately
adjacent to that of the landowner, and whose animals bear some form
of identification mark.  Notice should be given to all stockowners
who are
known or who, with the exercise of reasonable diligence, can be ascertained.  There
is no need to save section 29(1) in
the interim.  If a landowner has suffered
damages that are more than the trespass fees, such landowner would have to institute

an action for the recovery of such damages in an appropriate court.  After all,
damages are an alternative to trespass fees.Â
Finally, once the trespassing
animals have been impounded, there is no longer any reason for by-passing the
judicial process.Â
The execution process must therefore be conducted under
judicial supervision so as to protect stockowners.
Costs
[132]
The High Court did not order costs in relation
to the proceedings before it.  There is no reason to interfere with that costs
order.Â
The applicant did not appeal against this order.  In this Court the applicant
sought an order for costs.  On the other hand the
MEC submitted that there
should be no order for costs.
[133]
The award of costs is a matter which is within
the discretion of a court.  In the circumstances of this case, we do not
consider
it desirable to make an order for costs in relation to the interlocutory
applications.  Both parties made unsuccessful applications.Â
However, in
relation to the appeal, the applicant was substantially successful.  The MEC
should therefore pay the costs of the
appeal.
Conclusion
[134]
We hold that:
(a)
Sections 16(1), 29(1), 33, 34 and 37 of the Ordinance put in place
an impounding scheme which violates both the right of access to
courts
guaranteed by section 34 and the right to equality guaranteed by section 9(3)
of the Constitution.  These provisions are
accordingly declared to be
inconsistent with the Constitution and therefore invalid.  However, we suspend
the order of invalidity
in respect of all the provisions except section 29(1)
for a period of twelve (12) months to afford the provincial government of
KwaZulu-Natal
the opportunity to correct the inconsistency.  In order to prevent the
violation of the Constitution to continue
in the meantime, we put in place a
temporary measure.  All sales pursuant to the provision of section 34 of the
Ordinance must
be authorised by the magistrate’s court having jurisdiction over
the area where the relevant pound is situated.  Pending the
enactment of the relevant
legislation, the notice contemplated in section 16(1) of the Ordinance must be
given to stockowners who
are known or who, with the exercise of reasonable
diligence, can be found.  Section 29(1) is struck down with immediate effect.
(b)
Sections 8, 10(2) and 41(4) of the Ordinance must be construed
consistently with the Constitution to require notice to stockowners
where the
stockowners can, with the exercise of reasonable diligence, be ascertained.Â
They are therefore not inconsistent with
section 33 of the Constitution.
(c)
Sections 12 and 37 of the Ordinance must be construed as requiring
prior notice to stockowners, where the stockowners are known or
where, with the
exercise of reasonable diligence, the stockowners can be ascertained.Â
Construed in this manner they are therefore
not inconsistent with section 33 of
the Constitution.
(d)
All persons who are required to implement the provisions of sections
8, 10(2), 12, 37 and 41(4) must now do so in a manner consistent
with paragraphs
(b) and (c) above.
The order
[135]
In the result the following order is made:
(a) The
MEC’s non-compliance with the rules of this Court is condoned.
(b) The
application for leave to appeal is granted.
(c) The
appeal is upheld in part and dismissed in part.
(d) The
application for leave to lead further evidence is refused and there is no order
for costs.
(e) Paragraph
1 of the order of the High Court is set aside and is replaced by the following:
(1)
Sections 16(1), 29(1), 33, 34 and 37 of the Ordinance are declared to be
inconsistent with the Constitution and therefore invalid;
(2) The
declaration of invalidity made in sub-paragraph (e)(1) above is suspended for a
period of twelve (12) months from the date
of this order to enable the
provincial legislature of KwaZulu-Natal to correct the inconsistency that has
resulted in the declaration
of invalidity; and
(3)
Pending the enactment of legislation contemplated in sub-paragraph (e)(2)
above:
(i) The
notice contemplated in section 16(1) of the Ordinance shall be given to
stockowners who are known or who, with the exercise
of reasonable diligence,
could be ascertained.
(ii) All
sales pursuant to the provisions of section 34 of the Ordinance shall be
authorised by the magistrate’s court having
jurisdiction over the area where
the relevant pound is situated.
(iii) No
sale pursuant to section 34 shall be authorised unless:
(aa) the poundkeeper, on notice to the stockowner, who is known or
who, with the exercise of reasonable diligence can be ascertained,
lodges with
a magistrate’s court having jurisdiction over the area where the relevant pound
is situated, a statement setting
forth all the amounts due under the Ordinance;
(bb) the amounts set forth in the statement by the poundkeeper are
not disputed by the stockowner within seven (7) days of such notice;
and
(cc) the
magistrate is satisfied that notice had been given to the stockowner, or that,
with the exercise of reasonable diligence,
the stockowner cannot be ascertained.
(iv)
Where the amounts set forth in the statement of the poundkeeper are disputed,
the magistrate shall summarily enquire into the
matter, following such
procedure as seems fair to the parties, and make such order as the magistrate
considers just, including
the order for costs.
(f) The
orders in paragraph (e) above shall come into effect on the date of this
judgment.
(g) Should
the provincial legislature of KwaZulu-Natal fail to remedy the
unconstitutionality in the sections declared to be inconsistent
with the
Constitution in terms of sub-paragraph (e)(1) above within the period referred
in sub-paragraph (e)(2), any interested
person or organisation may, before the
expiry of that period, apply to this Court for a further suspension of the
declaration of
invalidity and/or any other appropriate further relief.
(h) Mrs
Zondi is awarded costs of the appeal.
(i) There
will be no order for costs in relation to the application for direct access
which was dismissed by the Court on 9 March
2004.
Chaskalson
CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, O’Regan J, Sachs J, Skweyiya J,
Van der Westhuizen J and Yacoob J concur
in the judgment of Ngcobo J.
For the applicant:                                                A
M Stewart and
R J Purshotam
instructed by the Legal Resources Centre (Durban).
For the first respondent:                                     A
J Dickson SC and A A Gabriel
instructed by the State Attorney (Durban).
[1]
No 32 of 1947.  These provisions are cited in full at paras
65, 88, 107 and 110.
[2]
Section 34 of the Constitution.
[3]
Section 9 of the Constitution.
[4]
Section 33 of the Constitution.
[5]
These include the constitutional rights: against arbitrary
deprivation of property (section 25(1)); the right to have access to
sufficient
food (section 27(1)(b)); every child’s right to basic nutrition (section
28(1)(c)); the right to dignity (section
10); the right to enjoy culture
(sections 30 and 31); and the obligation of the state to respect, protect,
promote and fulfil the
rights in the Bill of Rights (section 7(2)); and
international human rights.
[6]
Section 16(1) of the Ordinance.
[7]
Act 45 of 1979.
[8]
Section 29(1) of the Ordinance.
[9]
Sections 26-30 of the Ordinance.
[10]
Sections 33-34 and 37 of the Ordinance.
[11]
Sections 10(2), 37 and 41(4) of the Ordinance.
[12]
Sections 10(2) and 41(4) of the Ordinance.
[13]
Act 3 of 2000.
[14]
The judgment of the High Court has since been reported as
Zondi
v Member of the Executive Council for Traditional and Local Government Affairs
and Others
2004 (5) BCLR 547 (N).
[15]
Act 13 of 1995.
[16]
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at paras 9-11;
Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6)
BCLR 752
(CC) at para 8;
Member of the Executive Council for Development
Planning and Local Government, Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998
(4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para 25; and
Dudley v City of
Cape Town and Another
2004 (8) BCLR 805
(CC) at para 6.
[17]
Member of the Executive Council
id at para 32;
Dudley
id at para 7.
[18]
Brink
above n 16 at para 14;
Transvaal Agricultural Union
v Minister of Land Affairs and Another
[1996] ZACC 22
;
1997 (2) SA 621
(CC);
1996 (12) BCLR
1573
(CC) at para 18;
Bruce and Another v Fleecytex Johannesburg CC and
Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 8;
Christian
Education South Africa v Minister of Education
1999 (2) SA 83
(CC);
1998
(12) BCLR 103
(CC) at para 12;
National Gambling Board v Premier,
KwaZulu-Natal, and Others
[2001] ZACC 8
;
2002 (2) SA 715
(CC);
2002 (2) BCLR 156
(CC) at
para 38;
Van der Spuy v General Council of the Bar of South Africa (Minister
of Justice and Constitutional Development, Advocates for Transformation
and Law
Society of South Africa Intervening)
[2002] ZACC 17
;
2002 (5) SA 392
(CC) at para 19;
2002
(10) BCLR 1092
(CC) at para 18; and
Satchwell v President of the Republic of
South Africa and Another
[2003] ZACC 2
;
2003 (4) SA 266
(CC);
2004 (1) BCLR 1
(CC) at para
6.
[19]
Section 169 of the Constitution states that:Â
“A High Court may decide –
(a) any
constitutional matter except a matter that –
(i) only
the Constitutional Court may decide; or
(ii) is
assigned by an Act of Parliament to another court of a status similar to a High
Court; and
(b) any
other matter not assigned to another court by an Act of Parliament.”
[20]
Compare
Dudley
above n 16 at para 8.
[21]
Id at para 7.
[22]
Bruce
above n 18 at para 8.
[23]
Id;
Satchwell
above n 18 at para 6.
[24]
Id
[25]
In relevant part, section 155 provides:
“(6) Each provincial
government must establish municipalities in its province in a manner consistent
with the legislation enacted
in terms of subsections (2) and (3) and, by
legislative or other measures, must -
(a)
provide
for the monitoring and support of local government in the province;
 . . .
(7) The national
government, subject to section 44, and the provincial governments have the
legislative and executive authority
to see to the effective performance by
municipalities of their functions in respect of matters listed in Schedules 4
and 5, by
regulating the exercise by municipalities of their executive
authority referred to in section 156(1).”
[26]
2001 (2) SA 388 (CC); 2001 (2) BCLR 133 (CC).
[27]
Id
at para 22.
[28]
Id
[29]
Compare remarks by this Court in
Zuma
above n 16 at para 11;
and
Bruce
above n 18 at para 22.
[30]
Act 59 of 1959.
[31]
Section 22 states that:
“The appellate division or a
provincial division, or a local division having appeal jurisdiction, shall have
power—
(a) on the hearing of an appeal to
receive further evidence, either orally or by deposition before a person
appointed by such division,
or to remit the case to the court of first
instance, or the court whose judgment is the subject of the appeal, for further
hearing,
with such instructions as regards the taking of further evidence or
otherwise as to the division concerned seems necessary; and
(b) to confirm, amend or set aside
the judgment or order which is the subject of the appeal and to give any
judgment or make any
order which the circumstances may require.”
[32]
Shein v Excess Insurance Company, Ltd
1912 AD 418
at 428-9;
Staatspresident en ’n Ander v Lefuo
[1990] ZASCA 6
;
1990 (2) SA
679
(A) at 691C-J; and see n 26 at para 21.
[33]
Deintje v Gratus & Gratus
1929 AD 1
at 6-7; also see n 26
at para 21.
[34]
Above n 26 at para 23.
[35]
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC) at para 119.
[36]
Above n 26
a
t para 22.
[37]
Id
[38]
Above n 35.
[39]
Section 167(5) of the Constitution states that:
“The Constitutional Court makes the
final decision whether an Act of Parliament, a provincial Act or conduct of the
President
is constitutional, and must confirm any order of invalidity made by
the Supreme Court of Appeal, a High Court, or a court of similar
status, before
that order has any force.”
[40]
Section 172(2)(a) of the Constitution states that:
“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.”
[41]
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para 59.
[42]
[1995] ZACC 9
;
1995 (4) SA 615
(CC);
1995 (10) BCLR 1424
(CC) at paras 2-5.
[43]
Section 38 of the Constitution provides:
“Anyone listed in this section has
the right to approach a competent court, alleging that a right in the Bill of
Rights has been
infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights.  The persons who may approach
a
court are:
(a) anyone
acting in their own interest”.
[44]
Above n 42 at para 8.
[45]
Whereas the Black Administration Act uses the term “Black” to
describe a member of the indigenous race in South Africa, the
term “African”
has been used in this judgment.  Its use should not be construed as conferring
legal or constitutional validity
for its exclusive use to describe one race
group, nor is it intended to exclude persons of other race groups who are
entitled to
or describe themselves as “Africans”.
[46]
Western Cape Provincial Government and Others: In re DVB
Behuising (Pty) Ltd v North West Provincial Government and Another
[2000] ZACC 2
;
2001 (1)
SA 500
(CC);
2000 (4) BCLR 347
(CC)
at para 41.
[47]
Id
[48]
Act 27 of 1913 at sections 2, 4 and 6.
[49]
Act 18 of 1936 at sections 10-12, 21 and 24-27.
[50]
See n 46 at para 2.
[51]
Id at para 41.
[52]
Kockott
The Fields of Wrath, Cattle Impounding in Weenen,
Special
Report no. 8
(The Association For Rural Advancement (AFRA) and the Church
Agricultural Project (CAP), 1993) 27-28.
[53]
Id at 24.
[54]
Id at 21-29.
[55]
Id at 17.
[56]
Id at 18.
[57]
Section 235(6) of the interim Constitution provides:
“The power to exercise executive authority in terms of
laws which, immediately prior to the commencement of this Constitution,
were in
force in any area which forms part of the national territory and which in terms
of section 229 continue in force after
such commencement, shall be allocated as
follows:
(a) All laws with regard to matters which—
(i) do not fall within the functional areas specified
in Schedule 6; or
(ii) do fall within such functional areas but are
matters referred to in paragraphs (a) to (e) of section 126 (3) (which shall be

deemed to include all policing matters until the laws in question have been
assigned under subsection (8) and for the purposes
of which subsection (8)
shall apply mutatis mutandis), shall be administered by a competent authority
within the jurisdiction of
the national government: Provided that any policing
function which but for subparagraph (ii) would have been performed subject to

the directions of a member of the Executive Council of a province in terms of
section 219 (1) shall be performed after consultation
with the said member
within that province.
(b) All laws with regard to matters which fall within
the functional areas specified in Schedule 6 and which are not matters referred

to in paragraphs (a) to (e) of section 126 (3) shall—
(i) if any such law was immediately before the
commencement of this Constitution administered by or under the authority of a
functionary
referred to in subsection (1) (a) or (b), be administered by a
competent authority within the jurisdiction of the national government
until
the administration of any such law is with regard to any particular province
assigned under subsection (8) to a competent
authority within the jurisdiction
of the government of such province; or
(ii) if any such law was immediately before the said
commencement administered by or under the authority of a functionary referred

to in subsection (1) (c), subject to subsections (8) and (9) be administered by
a competent authority within the jurisdiction of
the government of the province
in which that law applies, to the extent that it so applies: Provided that this
subparagraph shall
not apply to policing matters, which shall be dealt with as
contemplated in paragraph (a).
(c) In this subsection and subsection (8) ‘competent
authority’ shall mean—
(i) in relation to a law of which the administration
is allocated to the national government, an authority designated by the
President;
and
(ii) In relation to a law of which the administration
is allocated to the government of a province, an authority designated by the

Premier of the province.”
[58]
Section 235(8) of the interim Constitution provides:
“(a) The President may, and shall if so requested by
the Premier of a province, and provided the province has the administrative

capacity to exercise and perform the powers and functions in question, by
proclamation in the Gazette assign, within the framework
of section 126, the
administration of a law referred to in subsection (6) (b) to a competent
authority within the jurisdiction
of the government of a province, either
generally or to the extent specified in the proclamation.
(b) When the President so assigns the administration
of a law, or at any time thereafter, and to the extent that he or she considers

it necessary for the efficient carrying out of the assignment, he or she may—
(i) amend or adapt such law in order to regulate its
application or interpretation;
(ii) where the assignment does not relate to the whole
of such law, repeal and re-enact, whether with or without an amendment or

adaptation contemplated in subparagraph (i), those of its provisions to which
the assignment relates or to the extent that the
assignment relates to them;
and
(iii) regulate any other matter necessary, in his or
her opinion, as a result of the assignment, including matters relating to the

transfer or secondment of persons (subject to sections 236 and 237) and
relating to the transfer of assets, liabilities, rights
and obligations, including
funds, to or from the national or a provincial government or any department of
state, administration,
force or other institution.
(c) In regard to any policing power the President may
only make that assignment effective upon the rationalisation of the police

service as contemplated in section 237: Provided that such assignment to a
province may be made where such rationalisation has
been completed in such a
province.
(d) Any reference in a law to the authority
administering such law, shall upon the assignment of such law in terms of
paragraph
(a) be deemed to be a reference mutatis mutandis to the appropriate
authority of the province concerned.”
[59]
See
DVB
above n 46.
[60]
Section 7 of the Ordinance.
[61]
Section 25(1) of the Ordinance.
[62]
Section 8 of the Ordinance states that:
“Whenever the name of the owner of
any impounded animal is known to the poundkeeper he shall forthwith send
through the post or
otherwise a written notice addressed to such owner at his
place of residence, informing him of the fact that such animal has been

impounded.”
[63]
Section 18 of the Ordinance provides:
“Notwithstanding anything to the
contrary contained in this Ordinance, the owner of any land may destroy any
donkey or pig found
trespassing thereon unless it is distinctively branded or
marked or unless he knows or can with reasonable diligence ascertain to
whom it
belongs.”
[64]
Section 32 of the Ordinance.
[65]
Section 29(1)(a) of the Ordinance.
[66]
Section 29(1) of the Ordinance.
[67]
Sections 33 and 34 of the Ordinance.
[68]
Section 34(3) of the Ordinance.
[69]
Section 37 of the Ordinance.
[70]
Section 40 of the Ordinance.
[71]
Section 41(4) of the Ordinance.
[72]
Section 10(2) of the Ordinance.
[73]
Section 12 of the Ordinance.
[74]
See discussion at paras 87-97.
[75]
Above n 13.
[76]
Above n 5.
[77]
Section 43 of the Ordinance in relevant part provides:
“Any person who—
 . . .
(b) unlawfully seizes any animal for
the purpose of impounding it; or
(c) unlawfully impounds any animal;
or
(d) claims payment of any fees or
damages in respect of any impounded animal in excess of such fees or damages as
are claimable
or due under the provisions of this Ordinance,
shall be guilty of an offence.”
[78]
2000
(1) SA 409 (CC); 1999 (12) BCLR 1420 (CC).
[79]
Id a
t paras 15-18.
[80]
First National Bank of SA Ltd v Land and Agricultural
Bank of South Africa and Others; Sheard v Land and Agricultural Bank of South

Africa and Another
[2000] ZACC 9
;
2000 (3) SA 626
(CC);
2000 (8) BCLR 876
(CC).
[81]
Id at para 5.
[82]
Above n 78 at para 22.
[83]
[1971] USSC 40
;
401 US 371
(1970).
[84]
Id at 374-5.  The scope of the decision, however, was reduced
sharply in two subsequent decisions of the United States Supreme
Court,
US v
Kras
[1973] USSC 8
;
409 US 434
(1972) and
Ortwein v Schwab
[1973] USSC 71
;
410 US 656
(1973).  See
also
Concorde Plastics (Pty) Limited v NUMSA and Others
1997 (11) BCLR
1624
(LAC) 1644D-I.
[85]
Section 33
subsection (1) amended by section 5 of Ordinance 19 of 1986.
[86]
Section 33 amended by section 1 of
Ordinance 8 of 1954, further by section 1 of Ordinance 38 of 1956 and
substituted by section
18 of Ordinance 16 of 1978.
[87]
Section 34 substituted by section 19 of
Ordinance 16 of 1978.
[88]
Section 37 substituted by section 20 of
Ordinance 16 of 1978.
[89]
Below at para 80.
[90]
Above n 78
at para 15.
[91]
Section 34 of the Constitution.
[92]
Above n 52 at 37.
[93]
Id at 40.
[94]
Ex Parte Speaker of the KwaZulu-Natal
Provincial Legislature: In re KwaZulu-Natal Amakhosi and Iziphakanyiswa
Amendment Bill of
1995; Ex Parte Speaker of the KwaZulu-Natal Provincial
Legislature: In re Payment of Salaries, Allowances and Other Privileges to
the
Ingonyama Bill of
[1996] ZACC 15
;
1995
1996 (4) SA 653
(CC);
1996 (7) BCLR 903
(CC) at para
19;
DVB
above n 46 at paras 36-38;
R v Big M Drug Mart Ltd
1985 1
SCR 295
at 331f-h.
[95]
DVB
above n 46
at para 18.
[96]
Id
[97]
Above n 7.
[98]
The predecessor to section 29(1) referred to “landowners or
registered voters” without any qualifications.  On 28 September
1983, the
Republic of South Africa Constitution Act, 1983 (Act 110 of 1983) was enacted.Â
In terms of section 52 of that Constitution
“every White person, Coloured
person and Indian” were voters.  Coloureds and Indians could then assess
damages under the Ordinance.Â
On 26 July 1983, the State President-in-Council
enacted an amendment to section 29(1) which qualified voters to refer to a
voter
as defined in section 1 of the Electoral Act.  It is significant to note
that this reference to the Electoral Act was introduced
into the Ordinance by
Pound Amendment No. 20 of 1983 on 30 August 1984; that is, after the tricameral
parliament had been established
and the Constitution of 1983 came into effect,
giving the franchise to Indians and Coloureds, in addition to whites who
already
had the franchise.  In other words, to ensure that Indians and
Coloureds did not assess damages, the Ordinance was amended to refer
to the
Electoral Act which gave the franchise to whites only.  Given the definition of
a voter in the Electoral Act, the manifest
intention of amending section 29 was
to exclude any black people from assessing damages under the Ordinance.
[99]
Section 3(1) of the Electoral Act provides that:
“Every white person who is
a South African citizen, is of or over the age of eighteen years and is not
subject to any of the disqualifications
mentioned in section 4 (1) or (2),
shall, on compliance with the provisions of this Act, be entitled to be
registered as a voter.”
[100]
In a roundabout way the statute conferred the franchise only on
white persons.  Section 1 of the Electoral Act defines “a voter”
as a person
who, amongst other things, “has a right to vote at an election”, and who is
enrolled on a voters’ list.  To
find out who this person is, you must go to
section 6, which tells you that only persons who are on the voters’ list and
who
are qualified or have applied for registration as voters may appear on the
voters’ list.  To find out who these persons are,
you must then go to section
3(1), which now says in unequivocal terms that only white persons are entitled
to vote.
[101]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC)
at para 25.
[102]
Id
[103]
Id
[104]
Here we are not concerned with the constitutionality of PAJA and
nothing said in this judgment must be taken as a pronouncement
on its
constitutionality.
[105]
Bernstein and Others v Bester and Others
NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 4 BCLR 449
(CC) at
para 59;
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7)
BCLR 779
(CC) at para 85;
S v Dzukuda and Others; S v Tshilo
2000 (4) SA
1078
(CC);
2000 (11) BCLR 1252
(CC) at para 37(a);
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and Others: In re Hyundai
Motor Distributors (Pty) Ltd and Others v
Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at paras
21-26; and
National Director of Public Prosecutions
and Another v Mohamed NO and Others
[2003] ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5) BCLR 476
(CC) at para 35
.  See also
Olitzki
Property Holdings v State Tender Board and Another
[2001] ZASCA 51
;
2001 (3) SA 1247
(SCA);
2001 (8) BCLR 779
(SCA) at para 20.
[106]
Section 39(2) of the Constitution provides that:
“When interpreting any
legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote
the spirit, purport and objects of the Bill of
Rights.”
[107]
2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC).
[108]
Id at para 141; see also
Permanent Secretary, Department
of Education and Welfare, Eastern Cape, and Another v Ed-U-College (PE)
(Section 21) Inc
[2000] ZACC 23
;
2001 (2) SA 1
(CC);
2001 (2) BCLR 118
(CC) at para 18.
[109]
Above n 107 at para 141.
[110]
Id at para 143.
[111]
Section 37 substituted by section 20 of
the Ordinance 16 of 1978.
[112]
1997 (2) SA 621 (CC); 1996 (12) BCLR 1573 (CC).
[113]
Id a
t paras 25-26.
[114]
Compare
De Beer NO v North-Central Local Council and
South-Central Local Council and Others (Umhlatuzana Civic Association Intervening)
[2001] ZACC 9
;
2002 (1) SA 429
(CC);
2001 (11) BCLR 1109
(CC).
[115]
It is worth noting
the provisions of the
Animal Identification Act 6 of 2002
, which came into
effect in November 2003.  This statute, broadly speaking, requires that animals
have identification marks.Â
Section 14
of this Act, read with regulation 8
promulgated under that Act, require the poundkeeper to notify the owner of the
impounded animals
of impoundment where the owner can be established from
identification marks on the impounded animals.
[116]
Coetzee v Government of the Republic
of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison,
and Others
[1995] ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC) at paras
15-17;
National Coalition for Gay and Lesbian Equality and
Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000
(2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at paras 74-76; and
Dawood and Another
v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home
Affairs and Others; Thomas and
Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 62.
[117]
National Coalition
id at para 74.
[118]
Dawood
above n 116 at para 64.