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[2006] ZACC 14
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Concerned Land Claimants Organisation of Port Elizabeth v Port Elizabeth Land and Community Restoration Association and Others (CCT29/06) [2006] ZACC 14; 2007 (2) SA 531 (CC); 2007 (2) BCLR 111 (CC) (21 September 2006)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 29/06
THE CONCERNED LAND CLAIMANTS’ Applicant
ORGANISATION OF PORT
ELIZABETH
versus
THE PORT ELIZABETH LAND AND COMMUNITY First
Respondent
RESTORATION ASSOCIATION
MINISTER OF LAND AFFAIRS Second
Respondent
CHIEF LAND CLAIMS COMMISSIONER Third Respondent
NELSON
MANDELA METROPOLITAN Fourth Respondent
MUNICIPALITY
THE MEC FOR LOCAL
GOVERNMENT AND Fifth Respondent
HOUSING FOR THE EASTERN CAPE
PROVINCE
THE PORT ELIZABETH LAND RESTITUTION Sixth Respondent
AND
HOUSING ASSOCIATION
Decided on: 21 September 2006
JUDGMENT
THE COURT:
Introduction
[1]
This case concerns claims
for restitution of residential land. The narrow issue posed is whether under
the Constitution a person
or community dispossessed of property by past racially
discriminatory laws and practices is entitled to insist on restitution of
that
property as against other equitable redress.
[2]
The applicant, a community
organisation representing aggrieved land claimants, has come to this Court by
way of direct access.
[1]
It asks for
an order declaring that the agreement on land restitution (framework agreement)
entered into by the Minister of Land
Affairs (Minister), other government
respondents
[2]
and the Port Elizabeth
Land and Community Restoration Association (PELCRA) representing certain land
claimants from the community
is inconsistent with the Constitution because it
offends section 25(7) of the Constitution.
[3]
Section 25(7) provides
that:
“A person or community disposessed of property after 19 June 1913 as a
result of past racially discriminatory laws or practices
is entitled, to the
extent provided by an Act of Parliament, either to restitution of that property
or to equitable redress.”
[4]
The impugned
agreement was concluded in terms of section 42D(1) and
(2)
[3]
of the Restitution of Land
Rights Act
[4]
(the Act). The Act is
the legislation that gives effect to section 25(7) of the Constitution. The
agreement establishes a framework
for the settlement of claims for restitution
of land and for developing vacant land in the residential areas of Fairview and
Salisbury
Park (earmarked land) in Port Elizabeth. It provides for land
restitution on a collective or community basis for the benefit of
claimants who
are party to the framework agreement and the broader community by subdividing
the earmarked land into commercial and
residential erven; by supplying bulk
services; by building residential dwellings; and by constructing community
facilities.
[5]
The agreement stipulates
that the monetary value of the development planned shall be the sum of the
monetary value of all individual
claims for land restitution. Each land
claimant is listed in an annexure to the agreement and is entitled to
compensation averaging
R30 000.00 or its equivalent in the form of a plot and a
dwelling. The total cost of the development is to be funded by the national
treasury to the tune of R41.92m. In turn, the claimants undertake neither to
pursue individual claims for monetary compensation
nor to insist on the
restoration of their original portions of land in the two development
areas.
The parties
[6]
It is beneficial to describe
the parties briefly. The applicant is known as the Concerned Land
Claimants’ Organisation of Port
Elizabeth, an association of land
claimants who were dispossessed of their land situated in the earmarked areas
under a racially
oppressive law.
[5]
The claimants have submitted valid land restitution claims and are listed in the
annexure to the framework agreement.
[7]
PELCRA, another community
organisation, is the first respondent. It was formed in 1993 to assist with
claims for restitution of land
in Port Elizabeth. Representing land claimants,
PELCRA negotiated and concluded a framework agreement with the Minister and
other
government respondents. The applicant did not exist then. Its members
belonged to and were represented by PELCRA. In effect the
applicant is a
breakaway group from PELCRA.
[8]
The second respondent is the
Minister. She is responsible for the administration of the Act and is a party
to the impugned framework
agreement. Also joined is the Chief Land Claims
Commissioner (Commissioner) who is cited as the third respondent. The
Commissioner
has a statutory duty to implement the land restitution process.
The fourth respondent is the Nelson Mandela Metropolitan Municipality,
which is
joined as the municipality concerned. The MEC responsible for Local Government
and Housing: Eastern Cape is the fifth respondent.
He subscribed to the
agreement on behalf of the province, which owns the earmarked land. The Port
Elizabeth Land Restitution and
Housing Association (PELRHA) is the sixth
respondent. PELCRA and the Minister formed PELRHA to perform the role of the
land developer
envisaged in the agreement. One of its important tasks is to
establish a fair and equitable scheme for allocation of sites within
the
earmarked land to claimants.
Brief
background
[9]
The year 1993 promised great
social transition. The advent of the interim Constitution was imminent and
kindled new hope. Those
dispossessed of their land in Port Elizabeth by the
minority apartheid state were no different. They too had cause to anticipate
more compassionate land ownership
arrangements.
[6]
The Legal Resources
Centre of Port Elizabeth came to their help in pursuing their claims for
restitution. Claimants authorised
PELCRA to act for them in advancing land
claims in relation to their original land in the earmarked area. The applicant
recalls
that, on a number of occasions at meetings, claimants were told not to
ask for their land back as they would be given an opportunity
to acquire a
serviced plot in a developed area in lieu of their dispossessed property. The
applicant claims that this assurance
was taken by its members to apply only to
those people whose land had already been developed, as it could not be restored
to them
vacant.
[10]
In February 2000, PELCRA,
acting for claimants, entered into the agreement with the Minister. Shortly
after signature, the terms
of the agreement were presented to the claimants at a
meeting of PELCRA. All welcomed the terms. The applicant says that at the
report back meeting, it was not obvious that the framework agreement was
incompatible with the aspirations of its now aggrieved members.
Its members
became concerned only in July 2001 when a proposed layout plan was displayed.
On the plan a huge part of the undeveloped
land had been allocated for
commercial purposes and another for high-density housing. On the
applicant’s version less than
half of the land is available for allocation
to the claimants for residential purposes. It is worried that a number of its
now concerned
members have been allocated residential stands much smaller than
their original land and that some have accepted the stands by signing
individual
settlement agreements as required by the framework agreement without
understanding the adverse impact of the terms of
the settlement agreements on
their land claims.
[11]
The applicant’s
complaint is that before the agreement was concluded its members understood that
people who were claiming undeveloped
land would still have their claims
considered on the footing that their original land would be returned to them.
The applicant insists
that PELCRA had a duty to ensure that the agreement
entered into with the Minister provided that the undeveloped and vacant land
is
returned to its original owners.
[12]
Nearly a year and a half
later, in August 2001, claimants who preferred restoration of their original
land met and formed themselves
into an association, that is, the applicant. The
applicant requested the Minister to intervene and undo the agreement. The
Minister
referred their concern to the Commissioner. The applicant also met
with the Eastern Cape Development Tribunal, however their concerns
did not fall
within the jurisdiction of the tribunal. They also held a meeting with the
Regional Land Claims Commissioner, the premier
of the Eastern Cape Province and
a member of the mayoral committee of the Nelson Mandela Metropolitan
Municipality, all to no avail.
Land Claims
Court
[13]
In July 2003 the applicant
approached the Land Claims Court and sought an order to review and set aside the
decision of the Minister
and the Commissioner to enter into the framework
agreement and to stop PELRHA from continuing with the development of the land
allocated
for restitution. The Minister and the Commissioner were opposed to
the relief sought.
[14]
The Land Claims Court
dismissed the application and declined to grant the applicant leave to appeal.
It held that the applicant had
misconceived its remedies because the decision of
the Minister or the Commissioner to conclude the framework agreement is not
reviewable
under the Act
[7]
or the
Promotion of Administrative Justice
Act
[8]
or by reason of inherent
jurisdiction that the Court
[9]
might
have. This is so, the Court found, because the framework agreement is governed
not by administrative law but by the law of
contract. The Supreme Court of
Appeal also refused the petition to it for leave to appeal and did not furnish
reasons.
[15]
The Court went on to find
that even if the Minister’s action was reviewable the applicant had not
shown that its members had
standing because they were not directly prejudiced by
the agreement. In contrast, the Minister and the Commissioner had shown that
if
the agreement were to be set aside other land claimants would be severely
prejudiced. The Court reasoned that the agreement does
not preclude members of
the applicant from pursuing their individual land claims. Yet if they choose
to, they may participate in
the realisation of the goals envisaged in the
framework agreement.
The applicant’s
submissions
[16]
In this Court the case of
the applicant rests on two grounds. The one is that the agreement is invalid
because it offends section
25(7) of the Constitution; it does not make provision
for the restoration of the original dispossessed land in the earmarked area
even
though the land was available and had not yet been developed when the agreement
took effect. The applicant advances an additional
ground based on unfair
discrimination. It says that the agreement improperly discriminates between
claimants who were dispossessed
of their land in the earmarked area and to whom
restoration of land remained possible, and claimants in respect of other areas
where
restoration of land is no longer possible as those areas have subsequently
been developed.
[17]
Both grounds are
constitutional issues of some importance. Yet both issues are raised for the
first time in this Court. After the
application was lodged, the Chief Justice
directed the parties to address two matters: (a) whether the application for
direct access
should be treated as an application for leave to appeal under rule
19 against the decision of the Land Claims Court of 30 September
2004 and (b)
the merits of the appeal to allow the Court to dispose of the appeal without
need for further affidavits.
Direct
access
[18]
The question is whether
there exist exceptional circumstances that justify bypassing the Land Claims
Court and the Supreme Court of
Appeal and hearing the matter by way of direct
access.
[10]
The Minister and the
Commissioner oppose the granting of direct access and say it is not in the
interests of justice to do so.
The MEC has filed a notice to abide. The rest
of the respondents are silent.
[19]
In our view, the opposing
respondents are right that no exceptional circumstances have been shown to exist
for direct access. The
dispute between the parties has dragged on for nearly
five years and the applicant has not shown a need to resolve the dispute
urgently.
There is no reason advanced why the new arguments based on the
Constitution were not raised before the Land Claims Court, whose
view on the
matter, as a specialist court, would clearly be important. In effect we are
needlessly invited to be a court of first
and last instance. Yet the applicant
does not assert that if direct access is not granted its members will be denied
effective relief.
Lastly, just and equitable restitution of property or its
equitable redress is a pressing constitutional imperative. Yet where
the law
that gives effect to the right to land redress establishes a specialist court to
resolve related disputes, only very compelling
public and other interests would
justify bypassing that court. None have been shown. It is not in the interests
of justice to grant
direct access to this Court. It must be
refused.
[20]
What remains is to consider
whether the application for direct access should be treated as an application
for leave to appeal under
rule
19,
[11]
against the decision of the
Land Claims Court of 30 September 2004. The respondents resist dealing with the
present application
as one for leave to appeal. It is plain that the
application does not answer to the requirements of an application for leave to
appeal under rule 19. Besides its irregular form, the most glaring defect in
the application is that it is brought some eleven months
after the Supreme Court
of Appeal dismissed the applicant’s petition for leave to appeal in May
2005. No explanation for this
lateness is forthcoming, nor are we asked to
condone it. Seemingly the applicant hopes to surmount this hurdle by simply
starting
fresh proceedings directly in this Court. However, having found the
direct access application bad, we nonetheless consider it appropriate
to treat
the application as one for leave to appeal the decision of the Land Claims
Court. To that end, we turn to examine whether
it is in the interests of
justice to hear the appeal.
Interests of
justice under rule 19
[21]
In assessing where the
interests of justice lie, one is obliged to weigh carefully all factors relevant
to the application for leave
to
appeal.
[12]
An important, although
not singularly decisive, factor is the application’s prospects of success
on appeal. We consider this
factor first. It will be remembered that the Land
Claims Court dismissed the applicant’s claim on the merits for the reasons
that the decision of the Minister to conclude the framework agreement is not
susceptible to judicial review; but that even if it
is, the members of the
applicant lack legal standing; that they have not shown prejudice and that, in
any event, they have an alternative
remedy.
[22]
We are prepared to assume
in the applicant’s favour that the agreement concluded by the Minister is
susceptible to judicial
review. However, even if the conduct of the Minister
and Commissioner is susceptible to review, the applicant must make out a case
for reviewing and setting aside the agreement. In this Court the applicant
relies on two arguments. The first is that the framework
agreement offends
section 25(7) of the Constitution, which provides that a person dispossessed of
land is entitled to restitution
of that land or equitable redress, subject to
the provisions of an Act of Parliament. The second is that the framework
agreement
discriminates unfairly between different classes of claimants. The
essence of the complaint is that the agreement breaches sections
25(7) and
9(3)
[13]
of the Constitution because
it does not provide for restoration of the original land dispossessed. There is
no suggestion that the
agreement falls foul of the requirements of section 42D
of the Act or that the section itself is inconsistent with the
Constitution.
[23]
Section 25(7) is part of a
cluster of constitutional protections of property. On its terms the section
confers a right to a person
or community dispossessed of property as a result of
racially discriminatory laws or practices “either to restitution of that
property or to equitable
redress”.
[14]
The
Constitution says the entitlement is to the extent provided by an Act of
Parliament. The Act empowers the Minister to conclude
agreements with claimants
with valid claims providing for one or more of awarding land, paying
compensation or awarding land and
paying
compensation.
[15]
[24]
The agreement may determine
the manner in which the awarded land rights are to be held or compensation to be
made. The agreement
may contain terms the Minister considers appropriate.
Clearly in concluding agreements to give effect to the right to land restitution
the Minister has a wide discretion within the options authorised. Claimants too
play a vital role. As parties and beneficiaries
to the agreement, their consent
to the manner of restitution is indispensable. And expectedly, if the agreement
is concluded with
a community, the interest of the individual claimants will be
coloured or qualified by the broader communal interest. For instance,
a
development plan that is agreed with a community and envisages communal spaces
and facilities may imply smaller residential plots
or individual compensation.
The Act requires that the agreement provide for all members of the dispossessed
community to have access
to the land or compensation and on a non-discriminatory
and accountable manner.
[16]
That
does not mean that every claimant in the affected community is obliged to
subscribe to the agreement. Those who opt out of
the development agreement may
pursue their right to equitable redress that will take the form of
compensation.
[25]
Turning to the community
agreement in this matter, clause 2.3 provides:
“land claimants jointly decided not to pursue individual claims for
monetary compensation or to insist on the restoration of
the original portions
of land that they were dispossessed of but to pool their resources for achieving
community restoration by acquiring
and developing land...”
Now the applicant and its members seek to escape the
consequences of this contractual term. They now insist on the restoration of
their original land portions. They say that they discovered nearly eighteen
months after the agreement took effect that its terms
were inimical to the full
extent of their land claims and urge us to hold, more than six years after
signature, that the contractual
term breaches section 25(7).
[26]
There is no merit in this
argument. Section 25(7) confers a right to restitution or equitable redress but
leaves the form and manner
of redress to legislation. We have described the
wide discretion the legislative scheme confers on the Minister and claimants
subject
to the equitable jurisdiction of the courts. Neither a claimant nor a
community may insist as of right on original land dispossessed.
This is not
surprising. The affected land dispossession occurred over nearly 80 years since
1913, to different persons and communities
across our land. Over the period
patterns of land ownership, use and development have changed drastically. What
is appropriate
property restitution or equitable redress in response to
historical dispossession is bound to vary and be subject to the specific
context. For that very reason the submission that the framework agreement
discriminates unfairly against claimants who insist on
return of their original
land is unsustainable and must be dismissed.
[27]
We must conclude that the
assertion that the agreement is inimical to the terms of section 25(7) of the
Constitution lacks any prospect
of success. What remains is to deal with the
unfair discrimination complaint. This claim too has no prospect of success.
None
of the land claimants whose land may still be available are obliged to
subscribe to the compensation arrangements envisaged by the
framework agreement.
Those land claimants who do are obviously bound by the terms of the agreement
and will be entitled to be treated
on par with fellow claimants. They cannot be
said to be unfairly discriminated against. And those land claimants who do not
subscribe
to the framework agreement but choose to claim their original land are
entitled to pursue their respective claims, if any, as permitted
by the
Act.
[28]
Accordingly, we do not need
to consider the conclusion of the Land Claims Court that members of the
applicant lack standing in this
matter. Nevertheless, it should be recorded
that the applicant represents a genuine community concern however small or
unrepresentative.
On the papers in this Court, land claimants who are members
of the applicant also appear on the list of claimants appearing in Annexure
A to
the agreement. These appear to be people who originally owned land in the
earmarked area and feel aggrieved by the terms of
the framework agreement. In
our view it may well be that the applicant therefore has an interest sufficient
to vest standing in
the applicant and its members. We are well aware that the
applicant represents a splinter group from PELCRA. However, in our view,
that
fact would in all probability not be a sufficient reason to non-suit them on the
ground of standing.
[29]
Having concluded that the
arguments raised by the applicant bear no prospect of success, it is necessary
to consider whether there
may be other considerations relevant to the interests
of justice. One which also militates against the grant of the application
is
the delay of the applicant in pursuing this litigation. At every stage, the
applicant has been dilatory. From the time the agreement
was concluded in
February 2000, it took eighteen months before the applicant was formed. Then it
took nearly two years to initiate
the review proceedings in the Land Claims
Court, after the judgment of the Land Claims Court in September 2004 it took
more than
six months to approach the Supreme Court of Appeal and after the
Supreme Court of Appeal had refused leave to appeal a further eleven
months
elapsed before the applicant approached this
Court.
[30]
In six years much water has
gone under the bridge. The earmarked land which had consisted of large plots of
land with little or no
infrastructure apart from a few gravel roads is well on
its way to becoming a properly planned, developed and new residential township,
with smaller erven, fully serviced and public amenities. This was made possible
by pooling the entitlement of claimants to compensation.
Many claimants have
taken or are in the process of taking transfer of the fully serviced but smaller
plots. It is obvious that
if the framework agreement were to be set aside
enormous prejudice will result. The legitimate choice of the majority of land
claimants
will be brought to nought at the instance of a disgruntled minority.
It has not been shown that it is in the interests of justice
to do
so.
[31]
What is more, at least some
members of the applicant have an alternative remedy. The Minister and the
Commissioner are right in their
contention that claimants who have not agreed to
accept the terms of the framework agreement are entitled to pursue their claims
in the ordinary course under the Act. It is clear from the scheme of the Act
that section 2 determines entitlement to restitution.
On the other hand, a
section 42D agreement does not confer or deny the right to restitution. It
operates only when the Minister
is satisfied that a claimant is entitled to
restitution. It merely creates an additional but not exclusive mechanism for
restitution
of a right in land. A claimant may vindicate its entitlement to
restitution by any other means the Act permits. In other words
members of the
applicant who have not agreed to the framework agreement need not upset the
framework agreement to enforce their right
to restitution. They have
alternative relief to equitable compensation. We cannot determine on the papers
before us the extent
to which members of the applicant have a claim for
equitable compensation. That is a matter which will have to be determined in
accordance with the provisions of the Act. Nor can we determine at this stage
whether any of the applicants have waived any right
to equitable compensation
once they agreed to the framework agreement. This too may need to be determined
by another forum.
[32]
We conclude therefore that
it is in the interests of justice neither to entertain the application for
direct access nor to grant leave
to appeal against the judgment of the Land
Claims Court delivered on 30 September 2004. The application must therefore be
dismissed.
The Minister and the Commissioner have asked for costs should the
application be dismissed. Although the applicant misconceived
its remedy and
its members seem to be moved by a desire to procure larger erven than on offer
under the settlement agreement, it
nonetheless sought to enforce admitted rights
to land restitution guaranteed under our Constitution. Accordingly, this is not
an
appropriate case to make costs follow the event. Each party should carry its
own costs.
Order
[33]
(a) The application is
dismissed.
(b) No order as to costs is made.
Langa CJ, Moseneke
DCJ, Madala J, Mokgoro J, Nkabinde J, O’Regan J, Sachs J, Van der
Westhuizen J, Yacoob J, Kondile AJ, Van
Heerden AJ.
[1]
Rule 18 of the Rules of this
Court provides for an application for direct access to this Court. The rule
reads:
“(1) An application for direct access as contemplated in section 167(6)(a)
of the Constitution shall be brought on notice of
motion, which shall be
supported by an affidavit, which shall set forth the facts upon which the
applicant relies for relief.
(2) An application in terms of subrule (1) shall be lodged with the Registrar
and served on all parties with a direct or substantial
interest in the relief
claimed and shall set out—
(a) the grounds on which it is contended that it is in the interests of justice
that an order for direct access be
granted;
(b) the nature of the relief sought and the grounds upon which such relief is
based;
(c) whether the matter can be dealt with by the Court without the hearing of
oral evidence and, if it cannot;
(d) how such evidence should be adduced and conflicts of fact resolved.
(3) Any person or party wishing to oppose the application shall, within 10 days
after the lodging of such application, notify the
applicant and the Registrar in
writing of his or her intention to oppose.
(4) After such notice of intention to oppose has been received by the Registrar
or where the time for the lodging of such notice
has expired, the matter shall
be disposed of in accordance with directions given by the Chief Justice, which
may include—
(a) a direction calling the respondents to make written submissions to the Court
within a specified time as to whether or not direct
access should be granted;
or
(b) a direction indicating that no written submissions or affidavits need be
filed.
(5) Applications for direct access may be dealt with summarily, without hearing
oral or written argument other than that contained
in the application itself:
Provided that where the respondent has indicated his or her intention to oppose
in terms of subrule (3),
an application for direct access shall be granted only
after the provisions of subrule (4)(a) have been complied with.”
[2]
The Chief Land
Claims Commissioner; the Nelson Mandela Metropolitan Municipality; the MEC for
Local Government and Housing for the
Eastern Cape Province and the Port
Elizabeth Land Restitution and Housing
Association.
[3]
Section 42D(1) and
(2) provide:
“(1) If the Minister is satisfied that a claimant is entitled to
restitution of a right in land in terms of section 2, and
that the claim for
such restitution was lodged not later than 31 December, 1998, he or she may
enter into an agreement with the parties
who are interested in the claim
providing for one or more of the following:
(a)
the award to the claimant of land, a portion of land or any other
right in land: Provided that the claimant shall not be awarded
land, a portion
of land or a right in land dispossessed from another claimant or the
latter’s ascendant,
unless—
(i) such other claimant is or has been granted restitution of a right in land or
has waived his or her right to restoration of the
right in land in question;
or
(ii) the Minister is satisfied that satisfactory arrangements have been or will
be made to grant such other claimant restitution
of a right in
land;
(b)
the payment of compensation to such claimant;
(c)
both an award and payment of compensation to such
claimant;
(d) . . .
(e)
the manner in which the rights awarded are to be held or the
compensation is to
be paid or held; or
(f)
such other terms and conditions as the Minister considers
appropriate.
(2) If the claimant contemplated in subsection (1) is a community, the agreement
must provide for all the members of the dispossessed
community to have access to
the land or the compensation in question, on a basis which is fair and
non-discriminatory towards any
person, including a tenant, and which ensures the
accountability of the person who holds the land or compensation on behalf of
such
community to the members of the community.”
[4]
22 of
1994.
[5]
Community Development Act
3 of 1966.
[6]
For example see, The
Abolition of Racially Based Land Measures Act 108 of 1991 and the establishment
of the Land Commission on Allocation
of Land. The Commission was later repealed
by
section 41(1)
of the
Restitution of Land Rights Act 22 of 1994
.
[7]
Section 36(2)
of the
Restitution of Land Rights Act provides
:
“The Court shall exercise all of the Supreme Court's powers of review with
regard to such matters, to the exclusion of the
provincial and local divisions
thereof.”
[8]
Section 6
of the
Promotion of Administrative Justice Act 3 of 2000
.
[9]
The Land Claims Court was
established by
section 22
of
Restitution of Land Rights Act. Its
inherent
jurisdiction is defined in
section 36
as follows:
“(1) Any party aggrieved by any act
[of]
or decision of the
Minister
, Commission or any functionary acting or purportedly acting in
terms of this Act, may apply to have such act or decision reviewed
by the
Court.
[Sub-s. (1) substituted by s. 21 of Act 78 of 1996.]
(2) The Court shall exercise all of the Supreme Court's powers of review with
regard to such matters, to the exclusion of the provincial
and local divisions
thereof.”
[10]
See for example,
Zondi v Member of the Executive Council for Traditional and
Local Governmental Affairs and Others
[2004] ZACC 19
;
2005 (4) BCLR 347
(CC);
2005 (3) SA
589
(CC) at para 12;
Bruce and Another v Fleecytex Johannesburg CC and
Others
[1998] ZACC 3
;
1998 (4) BCLR 415
(CC);
1998 (2) SA 1143
(CC) at paras 4-9;
S v
Bequinot
[1996] ZACC 21
;
1996 (12) BCLR 1588
(CC);
1997 (2) SA 887
(CC) at para 15.
[11]
Rule 19 of the Rules
of this Court provides:
“(1) The procedure set out in this rule shall be followed in an
application for leave to appeal to the Court where a decision
on a
constitutional matter, other than an order of constitutional invalidity under
section 172(2)(a) of the Constitution, has been
given by any court including the
Supreme Court of Appeal, and irrespective of whether the President has refused
leave or special
leave to appeal.
(2) A litigant who is aggrieved by the decision of a court and who wishes to
appeal against it directly to the Court on a constitutional
matter shall, within
15 days of the order against which the appeal is sought to be brought and after
giving notice to the other party
or parties concerned, lodge with the Registrar
an application for leave to appeal: Provided that where the President has
refused
leave to appeal the period prescribed in this rule shall run from the
date of the order refusing leave.
(3) An application referred to in subrule (2) shall be signed by the applicant
or his or her legal representative and shall
contain—
(a) the decision against which the appeal is brought and the grounds upon which
such decision is disputed;
(b) a statement setting out clearly and succinctly the constitutional matter
raised in the decision; and any other issues including
issues that are alleged
to be connected with a decision on the constitutional matter;
(c) such supplementary information or argument as the applicant considers
necessary to bring to the attention of the Court; and
(d) a statement indicating whether the applicant has applied or intends to apply
for leave or special leave to appeal to any other
court, and if so—
(i) which court;
(ii) whether such application is conditional upon the application to the
Court being refused; and
(iii) the outcome of such application, if known at the time of the
application to the Court.
(4) (a) Within 10 days from the date upon which an application referred to
in subrule (2) is
lodged, the respondent or respondents may respond thereto in writing, indicating
whether or not the application for leave to appeal
is being opposed, and if so
the grounds for such opposition.
(b) The response
shall be signed by the respondent or respondents or his or her or their
legal representative.
(5) (a) A respondent or respondents wishing to lodge a cross-appeal to
the Court on a
constitutional matter shall, within 10
days from the date upon which an application in
subrule (2) is lodged, lodge with the Registrar an application for
leave to cross-
appeal.
(b) The provisions of these rules with regard to appeals shall apply, with
necessary modifications, to cross-appeals.
(6) (a) The Court shall decide whether or not to grant the appellant
leave to appeal.
(b) Applications for leave to appeal may be dealt with summarily, without
receiving oral or written argument other than that contained
in the application
itself.
(c) The Court may order that the application for leave to appeal be set down for
argument and direct that the written argument of
the parties deal not only with
the question whether the application for leave to appeal should be granted, but
also with the merits
of the dispute. The provisions of rule 20 shall, with
necessary modifications, apply to the procedure to be followed in such
procedures.”
[12]
See for example,
Minister of Health and Others v Treatment Action Campaign
and Others (1)
[2002] ZACC 16
;
2002 (10) BCLR 1033
(CC);
2002 (5) SA 703
(CC);
S v
Boesak
[2000] ZACC 25
;
2001 (1) BCLR 36
(CC);
2001 (1) SA 912
(CC);
Fraser v Naude and
Others
1998 (11) BCLR 1357
(CC);
1999 (1) SA 1
(CC);
S v Mhlungu and
Others
1995 (7) BCLR 793 (CC); 1995 (3) SA 867
(CC).
[13]
Section 9 provides:
“(3) 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.”
[14]
See above para 3.
[15]
Section 42D(1)(a) to
(c).
[16]
Section 42D(2).