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[2014] ZACC 7
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Mdodana v Premier of the Eastern Cape and Others (CCT 85/13) [2014] ZACC 7; 2014 (5) BCLR 533 (CC); 2014 (4) SA 99 (CC) (25 March 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 85/13
In
the matter between:
BENSION
MPHITIKEZI
MDODANA
...................................................................
Applicant
and
PREMIER
OF THE EASTERN
CAPE
.........................................................
First
Respondent
PREMIER
OF THE WESTERN
CAPE
....................................................
Second
Respondent
PREMIER
OF THE NORTHERN
CAPE
....................................................
Third
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR
TRADITIONAL
LEADERS AND LOCAL
GOVERNMENT
AFFAIRS, EASTERN CAPE
........................................
Fourth
Respondent
LUKHANJI
MUNICIPALITY
......................................................................
Fifth
Respondent
KEVIN
LIEBRUM
.........................................................................................
Sixth
Respondent
ROY
CALLAGHAN
...................................................................................
Seventh
Respondent
Neutral
citation:
Mdodana v Premier of the
Eastern Cape and Others
[2014] ZACC 7
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J and
Zondo J
Heard
on:
13 November 2013
Decided
on:
25 March 2014
Summary:
Constitutional law – Provincial
Legislation – Jurisdiction to confirm order of constitutional
invalidity
Separation
of powers – Status of ordinance – High Court declaring
unconstitutional and invalid sections of the Pounds
Ordinance 18 of
1938
Whether
Ordinance a Provincial Act – Parallel legislation on the
subject in the same Province – No pronouncement by
Provincial
Legislature on its preference – Parallel legislation to remain
in place notwithstanding confirmation
Ordinance
not a Provincial Act and no jurisdiction to confirm declaration of
invalidity
ORDER
On
application for confirmation of the order of the Eastern Cape High
Court, Grahamstown (Smith J):
1
.
The application is dismissed.
2.
There is no order as to costs.
3.
The Registrar of this Court shall
immediately deliver a copy of this judgment and the judgment of the
High Court to the second and
third respondents.
JUDGMENT
DAMBUZA
AJ (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Froneman J, Jafta J,
Madlanga J, Mhlantla AJ, Nkabinde J and Zondo J concurring):
Introduction
[1]
Mr
Bension Mphitikezi Mdodana (applicant) seeks confirmation of an order
by the Eastern Cape High Court, Grahamstown (High Court)
declaring
unconstitutional and invalid certain provisions of the Pounds
Ordinance
[1]
(Ordinance).
[2]
In the High Court, the applicant brought a
two-part application, first, for the release of his goats which had
been impounded in
terms of the Ordinance; and, second, for an order
declaring unconstitutional and therefore invalid the provisions of
the Ordinance
in terms of which the livestock was impounded.
[3]
The
High Court (Smith J) found the impugned provisions unconstitutional
and declared them invalid.
[2]
That Court suspended the order of invalidity for 12 months
to afford the Legislature an opportunity to enact remedial
legislation. Its order provides for judicial supervision of
impoundment of livestock and their sale in the interim.
The
parties
[4]
The
applicant is a subsistence farmer from Mgcwangele Location in Lady
Frere, Eastern Cape. The first to third respondents are the
Premiers
of the Eastern Cape, Western Cape and Northern Cape. They are cited
as political heads of the three Provinces to which
administration of
the Ordinance was assigned in 1994.
[3]
The
fourth respondent is the Member of the Executive Council for
Traditional and Local Government Affairs in the Eastern Cape (MEC).
The fifth respondent is Lukhanji Municipality, which operates the
pound in which the applicant’s goats were impounded. The
sixth respondent is Mr Kevin Liebrum, the poundkeeper. The seventh
respondent is Mr Roy Callaghan, the owner of a farm adjoining
the
applicant’s homestead. It was at Mr Callaghan’s instance
that the applicant’s goats were impounded.
Factual
background
[5]
The applicant lives with his wife, his
three children and his two grandchildren. They are all
unemployed and their combined
household monthly income, consisting of
the applicant’s disability grant and child support grants, is
R2 660. At the
time of institution of the proceedings in the
High Court the applicant owned 91 goats (valued at approximately
R70 000), 160
sheep, 9 cattle and about 30 chickens. His family
depends on sale of their livestock to supplement their income for
expenses
such as school fees, school uniforms, transportation,
medical bills and paraffin.
[6]
During May 2010 the applicant’s goats
went missing. Because the applicant is blind, it was his close
relative and herdsman,
Mr Gqebeni, who informed him that the goats
were missing. After searching for several days, Mr Gqebeni was
informed by a
fellow villager that a herd of goats had been removed
from Mr Callaghan’s property and impounded in the Lukhanji
Municipal
Pound in Queenstown.
[7]
At the pound, the applicant was advised
that he had to pay a penalty fee of R41 157, 20 to have the
goats released. This amount
comprised of damages payable to the
complainant and administration costs. The applicant was unable to pay
and he contacted the
Legal Resources Centre for assistance. This led
to the proceedings in the High Court.
[8]
Before the matter was heard in the High
Court, an agreement was reached between the applicant and the
Lukhanji Municipality, in
terms of which the applicant’s
livestock was released from the pound and he was exempted from paying
the penalty fee to the
Municipality. The first part of the
application in the High Court thus came to an end. What
remained for consideration
was the application to have certain
sections of the Ordinance declared unconstitutional.
[9]
The
sections of the Ordinance declared unconstitutional by the High Court
are sections 12, 23, 34 to 36, and 63 to 70.
[4]
They provide for impoundment of livestock,
[5]
destruction
of impounded livestock in certain circumstances,
[6]
assessment
of moneys payable by a livestock owner in trespass and other fees,
[7]
and
sales of impounded livestock.
[8]
The
proceedings in the High Court
[10]
The applicant contended that his rights to
protection against arbitrary deprivation of property, just
administrative action and
access to courts, as enshrined in sections
25, 33 and 34 of the Constitution, had been violated through the
enforcement of the
impugned sections of the Ordinance. The
complaint was that, to the extent that the Ordinance imbues a
landowner with the
authority to determine when trespass has occurred
and to instigate impoundment, section 23 of the Ordinance permits
arbitrary deprivation
of property. The applicant contended
further that the impugned sections of the Ordinance sanction disposal
of livestock without
provision for representations by the owner,
unconstitutional disqualification of certain groups of people from
participating in
the trespass penalty assessment process, and
exclusion of judicial supervision over sales in execution.
[11]
The application was opposed by the
Municipality and Mr Callaghan. The Municipality explained that
a substantial area within
its jurisdiction is utilised for commercial
livestock farming and therefore it is essential that there be a
mechanism for dealing
with stray livestock which causes a nuisance
and poses a threat to the livelihood of commercial livestock farmers
and to public-road
users.
[12]
The Municipality contended that the
impoundment scheme provided for in the Ordinance should be retained.
It blamed livestock
owners for the difficulties experienced in
notifying them of impoundment of their livestock, as livestock owners
neglect to register
their identification marks and to mark their
livestock as required by law. The argument was that, because
the animals are
often unmarked, the poundmaster is unable to identify
the owner to notify her of the impoundment as provided for in section
14.
A further complaint by the Municipality was that animal
owners make little effort to exercise adequate control over their
livestock, with the result that the Municipality often incurs
considerable costs in rounding up, transporting and caring for stray
animals. It was contended that the Ordinance provides the
Municipality with the necessary means of recovering the costs
incurred.
[13]
The
Municipality, however, acknowledged the irregularities in the
Ordinance. According to the Municipality, its functionaries,
in
their implementation of the provisions thereof, usually ameliorate
the effect of such irregularities. It did not explain,
however,
which of the provisions of the Ordinance it admits to being
unsustainable. And, despite this admission, the Municipality
insisted that, viewed in the context of other relevant legislation
such as the Animal Identification Act,
[9]
the impugned provisions of the Ordinance are not necessarily
unconstitutional.
[14]
The
High Court followed the approach adopted by this Court when dealing
with comparable legislation. In
Zondi
[10]
this
Court considered the constitutional validity of provisions of the
KwaZulu-Natal Pounds Ordinance
[11]
which also provided for immediate seizure and impoundment of
trespassing animals without a court order. In that case this
Court found that although impoundment per se is justifiable because
of the danger that stray animals pose to commercial farming
and
public road users, when considered jointly with other sections of the
impoundment regulatory scheme, it impermissibly allowed
animals to be
sold in execution without judicial supervision or approval.
[12]
The High Court then concluded that the impounding scheme as set out
in sections 23 and 63 to 70 of the Ordinance, being
similar in
content and effect to the provisions impugned in
Zondi
,
is in conflict with section 34 of the Constitution.
[15]
The
High Court found that there is no justifiable cause for limitation of
the right of access to courts brought about by the impoundment
scheme. It reasoned, as this Court did in
Zondi
,
[13]
that
once stray animals are impounded, any danger that might have existed
ceases. There is no reason why further processes,
including the
levying of fees, destruction of diseased animals and sales in
execution cannot be subjected to judicial supervision.
[16]
The judgment of the High Court reveals that
all the parties were in agreement that sections 12, 34, 35, 36 and 39
of the Ordinance
could not be allowed to stand. They
discriminate unfairly against landless stock owners in violation of
their right to equality
as guaranteed in section 9 of the
Constitution. The sections provide for destruction of animals
and for the determination
of penalties payable for animal trespass
without the involvement of landless stock owners. It is against
this background
that the High Court order was granted.
Before
this Court
[17]
The application comes before us in terms of
rule 16 of the Rules of this Court. None of the respondents
opposes the application.
The first to seventh respondents
elected to abide by the decision of this Court. This Court then
solicited assistance from
the Grahamstown Bar and Mr Paterson SC
together with Ms Beard filed written submissions and appeared before
this Court as friends
of the Court (amici curiae). We are
grateful to both of them for their assistance.
[18]
The
applicant persists that the impoundment scheme violates sections 25
and 34 of the Constitution.
[14]
At
the hearing we raised with both Mr Ngcukaitobi (who appeared on
behalf of the applicant) and the amici the issue whether this
Court
has jurisdiction to confirm the order of the High Court. They
were in agreement that confirmation is necessary. This
submission, however, requires further consideration.
[19]
As to the rest of the order of the High
Court, the amici submitted that sections 12 and 23 of the
Ordinance are not constitutionally
invalid.
[20]
Therefore the issues before us are––
(a)
whether this Court has jurisdiction to
confirm the order of the High Court;
(b)
whether the impugned sections of the
Ordinance (or some of them) violate the provisions of the
Constitution; and
(c)
the appropriate remedy.
Does
this Court have jurisdiction to confirm the order of the High Court?
[21]
The power of this Court to confirm orders
of constitutional invalidity is founded in sections 167(5) and
172(2)(a) of the Constitution.
Section 167(5) provides:
“
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, the High Court, or a court of similar
status, before that order has any force.”
Section
172(2)(a) provides:
“
The
Supreme Court of Appeal, the High Court of South Africa 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.”
[22]
The
Constitution therefore sets out categories of cases in which orders
of constitutional invalidity will be effective only on confirmation
by this Court. This is necessary to preserve the principle of
separation of powers.
[15]
Only
the highest court in the country is empowered to determine finally
the conduct of the principal repositories of legislative
and
executive powers: that is, the National Parliament and the Provincial
legislatures, on the one hand, and the State President,
on the other
hand. This rationale for subjecting orders of constitutional
invalidity to consideration by this Court was expressed
in
SARFU
as follows:
“
Counsel
for the applicants submitted that the effect of section 172(2) is to
give this Court exclusive jurisdiction to make orders
of invalidity
that are binding upon Parliament, Provincial Legislatures and the
President. The purpose of these provisions,
so it was
contended, is to preserve the comity between the judicial branch of
government, on the one hand, and the legislative
and executive
branches of government, on the other, by ensuring that only the
highest court in constitutional matters intrudes
into the domains of
the principal legislative and executive organs of State. In my
view this submission correctly reflects
the purpose of section
172(2). Our Constitution makes provision for the separation of
powers and vests in the Judiciary the
power of declaring statutes and
conduct of the highest organs of State inconsistent with the
Constitution and thus invalid.
It entrusts to this Court the
duty of supervising the exercise of this power and requires it to
consider every case in which an
order of invalidity has been made, to
decide whether or not this has been correctly done. This Court
has a duty to assume
this supervisory role.”
[16]
(Footnote omitted.)
[23]
Where an order of constitutional invalidity
relates to legislation other than national or provincial Acts, there
is no need for
what
SARFU
called this Court’s “supervisory role”. Under
section 172(2) of the Constitution, the High Court and the
Supreme
Court of Appeal are empowered to make effective orders of
constitutional invalidity in respect of any laws (other than
those
mentioned in sections 167(5) and 172(2)(a)). Woolman suggests
that––
“
[section
172(2)(a) of the Constitution] covers all statutory provisions
enacted by Parliament. It does not extend to subordinate
legislation (eg regulations and bylaws), to conduct other than
conduct of the President, or to the common law. In regard
to
these other forms of law and conduct, confirmation of a declaration
of invalidity is not required and the High Court’s
finding is
final – provided the parties do not appeal the case to the
Constitutional Court.”
[17]
(Footnotes omitted.)
[24]
The issue whether this Court has
jurisdiction to confirm the declaration of invalidity arises because
there is uncertainty regarding
the status of the Ordinance: whether
it is a provincial Act, the declaration of invalidity of which is
susceptible to confirmation
by this Court.
[25]
For
a proper perspective of the current status of the Ordinance, its
background needs to be set out in some detail. The Ordinance
was passed in November 1938 by the Provincial Council of the
erstwhile Cape of Good Hope. Its operation extended to the
whole of the province, which then included the current Eastern Cape,
Northern Cape and Western Cape Provinces. It was aimed
at
consolidating and amending the laws relating to trespassing and
impoundment of livestock which were applicable in the area.
Between
1940 and 1971 the Ordinance was amended on several occasions.
[18]
[26]
From
October 1976 the former Transkei (within which the applicant’s
home town, Lady Frere, is located) attained “independence”
from the Republic of South Africa, a status that endured until
1994. So did the erstwhile Ciskei during the period from
1981
to 1994.
[19]
During
this period of “independence” the Legislature of the
erstwhile Republic of Ciskei repealed the Ordinance and
replaced it
with the Ciskei Pounds Act.
[20]
That legislation continues to be applicable in that part of the
Eastern Cape. There is evidence of similar legislation
having
been enacted in the erstwhile Transkei.
[21]
[27]
Meanwhile, in the rest of the country, in
1986, provincial councils were abolished and their original
legislative powers were transferred
to provincial administrators in
the executive arm of the provincial government. Provincial
administrators were empowered,
inter alia, to amend ordinances that
had been enacted by provincial councils. Thus the status of
ordinances, including the
one before us, became uncertain. It
is not clear whether the status of the Ordinance changed with the
abolition of the provincial
councils and transfer of their original
legislative authority to provincial administrators, or whether the
change of status would
take effect only if the provincial
administrator exercised his or her legislative authority by
pronouncing on the Ordinance.
[28]
In
June 1994 the administration of the Ordinance was assigned to
competent authorities in the Eastern Cape, Northern Cape and Western
Cape
in
terms of proclamations issued by the President.
[22]
In
the Eastern Cape (excluding the former Ciskei) the Ordinance
continues to apply in its 1971 form, as provided for in terms of
section 235(8) of the interim Constitution.
[23]
[29]
What then is the status of the Ordinance in
the Eastern Cape? In
Zondi
,
because the Provincial Government had appealed against the High Court
order of invalidity, this Court left open the question of
whether an
ordinance similar to the one before us is a provincial Act for the
purposes of confirmation by this Court under sections 167(5)
and
172(2)(a) of the Constitution. The issue of confirmation of the
invalidity was decided on the merits of the appeal. Unlike
Zondi
,
this case comes before us purely as an application for confirmation
of the order; the question of the status of the Ordinance
is the
primary issue.
[30]
In
Weare
this Court, whilst considering the same question, observed that there
is no definition in the Constitution for “provincial
Act”.
[24]
However, some indication is given in the definitions section,
[25]
which provides that in the Constitution, unless the context indicates
otherwise—
“
'provincial
legislation’” includes—
(a)
subordinate legislation made in terms of a
provincial Act; and
(b)
legislation that was in force when the
Constitution took effect and that is administered by a provincial
government.”
The
same observation had been made in
Gold
Circle
,
[26]
where Southwood AJ reasoned that the distinction made by the
legislature between “legislation that was in force when the
Constitution took effect” and “provincial Act”
demonstrates that the former was not meant to be included in the
latter phrase.
[31]
But
in
Weare
this
Court did not find the consideration referred to in
Gold Circle
to
be conclusive on whether a declaration of constitutional invalidity
needs to be confirmed. Instead this Court considered
relevant
the internal qualifier in the definitions section to the effect that
“unless the context indicates otherwise”.
[27]
Van der Westhuizen J said
:
“
On
the reasoning of
Gold
Circle
,
section 239 implies that ‘provincial Act’ and ‘provincial
Ordinance’ are different terms for the purposes
of the
Constitution and this means that a provincial ordinance does not fall
within the meaning of ‘provincial Act’
as used in
sections 167(5) and 172(2)(a). However, another consideration
is also relevant. Section 239 provides that
the definitions it
contains apply ‘unless the context indicates otherwise’.
As was said earlier, the application
of this Court’s
confirmation power under sections 167(5) and 172(2)(a) is based
notionally on the status of the law or authority
reviewed. It
must therefore be asked whether, considering ‘provincial Act’
in this context, the present Ordinance
should be seen to have status
such that it should be treated as a provincial Act for the purposes
of these sections.”
[28]
[32]
Therefore the more significant indicators
of the status of an ordinance, such as the one before us, are: (a)
its original source;
(b) its history from the time of enactment until
the enactment of the Constitution; and (c) the history beyond the
enactment of
the Constitution.
[33]
The origins and part of the history of the
Ordinance under consideration in this case are similar to the
ordinances considered in
Weare
and
Zondi.
As
shown in [25] and [27] above, the relevant ordinances were enacted by
provincial councils, exercising original legislative
authority. This
Court has held that nothing in either the interim or the final
Constitution indicates that the intention
was that the status of
ordinances as original legislation should change. If anything,
both indicate the contrary. In
Weare
,
this Court expressed itself in the following terms:
“
Indeed,
the effect of the interim and 1996 Constitutions is, if
anything, the opposite. As this Court has held, the purpose
of
the continuation provisions is to preserve the existing legal order:
considerations of practicality made it unavoidable to hold
the
pre-constitutional law in place until such time as the necessary
changes could be made, notwithstanding that this legislation
was the
product of democratically illegitimate authorities.”
[29]
[34]
In
Weare
,
the post-Constitution pronouncement by the provincial legislature in
assimilating the Ordinance was crucial in the conclusion
that the
Ordinance was a provincial Act. The Court further said:
“
[T]he
effect of the amendment and incorporation is that the ordinance as a
whole should be seen as an expression of the legislative
will of a
provincial legislature and treated accordingly. Following from
the notion of respect and comity articulated in
SARFU
,
its invalidation should be subject to confirmation by this
court.”
[30]
(Footnote omitted.)
Notwithstanding
this, the Court also said:
“
I
do not agree with the finding in
Gold
Circle
that
the invalidation of a provision which has not itself been amended or
substituted by a provincial legislature does not fall
to be
confirmed. . . This does not necessarily mean that ordinances in
respect of which the legislature has not acted – which
have not
been incorporated into a statute or amended – do not fall
within the ambit of sections 167(5) and 172(2)(a).”
[31]
[35]
There are two distinguishing aspects
between the case of the applicant, on the one hand, and that of
Weare
, on
the other. The first is the express pronouncements by the
provincial legislature on the Ordinance in
Weare
,
in the form of assimilation into a provincial Act, whereas the
Eastern Cape Provincial Legislature has never expressed itself
on the
Ordinance before us. Further, as I have stated, the Ordinance before
us does not apply uniformly throughout the Eastern
Cape Province.
Different legislation regulates impoundment in the erstwhile Ciskei.
[36]
It is my view that in circumstances as
peculiar as in this case, where in one territory there is parallel
legislation on the same
subject, a conclusion that the Ordinance is a
provincial Act would be inappropriate. In this case, contrary to the
usual territorially-binding
effect of a provincial Act, there are two
sets of laws which regulate impoundment in the Eastern Cape Province.
There is
no indication (express or implied) of a specific
exercise of power by the Eastern Cape Provincial Legislature that the
High Court
can be said to be trespassing on. The Ordinance we
are confronted with in this case does not satisfy the “criteria”
of a “provincial Act” as envisaged by the Constitution.
[37]
Can this Court nevertheless assume
confirmation jurisdiction for the other reasons advanced by the
applicant and the amici? The
applicant submitted that even if,
on a technical interpretation, it is found that the Ordinance does
not constitute a provincial
Act, that should not be a reason for this
Court to refrain from confirming the High Court order because the
question whether or
not to confirm any declaration of invalidity is
one of substance, not form. A further submission was that the
post-Constitution
passivity by the Eastern Cape Legislature in not
rectifying the constitutional defects should be viewed as an embrace
of the Ordinance
in its original form. But, in the context of
the Ordinance being applicable only in parts of the Eastern Cape
Province, I
do not think that it can be said that the Provincial
Legislature has embraced the Ordinance, nor can it be concluded that,
in substance,
its effect is the same as that of a provincial Act. By
the same token, it could be argued that the Provincial Legislature
accepted the Ciskei Pounds Act.
[38]
Further, while I accept that the anomaly
arising from the fact that the High Court’s declaration of
constitutional invalidity
is effective in one province when the
Ordinance remains “alive” in the other two provinces is
undesirable, I do not
think that is a proper basis for this Court to
assume jurisdiction not sanctioned by the Constitution. The
relief sought
will not cure the “irregularity” that
prevails in the Eastern Cape Province as a result of the two
legislative regimes
over impoundment.
[39]
The amici expressed a concern that if we
decline to confirm the declaration of invalidity, the hardship
confronting rural stockowners
will endure. I do not agree. The
declaration of invalidity by the High Court remains intact and
effective in the Eastern
Cape Province. I think that once the
relevant authorities in the other two affected provinces become aware
of the order,
they will take it into account when they are called
upon to implement the impugned provisions.
[40]
For obvious reasons I echo the High Court’s
lamentation of the non participation by the Premiers of the
Northern and
Western Cape in these proceedings, despite the fact that
they were cited as respondents. In an effort to ameliorate the
irregularity
resulting from continued implementation of the invalid
sections of the Ordinance in the Northern and Western Cape Provinces,
I
shall order that a copy of this judgment and the judgment of the
High Court be served on the second and third respondents.
[41]
Lastly,
the National Animal Pounds Bill
[32]
is
set to establish national norms and standards in order to maintain
consistency relating to pounds and the impounding of animals
in the
country. Although it is unclear when the Bill is likely to be
finalised, it does signal efforts by the National Legislature
to
regulate impoundment countrywide.
[42]
On the view I take of the issue of
jurisdiction, this Court cannot enquire into the propriety of the
order of constitutional invalidity.
[43]
In the event, the following order is made:
1.
The application is dismissed.
2.
There is no order as to costs.
The
Registrar of this Court shall immediately deliver a copy of this
judgment and the judgment of the High Court to the second
and third
respondents.
For
the Applicant:
Advocate
T Ngcukaitobi instructed by the Legal Resources Centre.
Appointed
by the Court:
Advocate
T Paterson SC and Advocate M Beard.
[1]
Pounds
Ordinance 18 of 1938 passed by the Provincial Council of the
Province of the Cape of Good Hope, promulgated on 25 November
1938.
[2]
Mdodana
v Premier of the Eastern Cape and Others
[2013] ZAECGHC 66 (High Court judgment).
[3]
This
assignment was made in terms of section 235(8) of the interim
Constitution under Proclamations 108, 111 and 115,
Government
Gazette
15813 promulgated on 17 June 1994.
[4]
At
paragraph 19 of the High Court judgment these sections are
summarised as follows:
“
(a)
section 14 . . . enjoins the poundmaster to inform the owner of
impounded animals only where he or she knows the name of the
owner;
(b)
section 23 . . . allows impoundment of animals . . . without
judicial supervision;
(c)
sections 63 to 70 . . . allow for the deprivation of property
through sales in execution without judicial supervision or sanction;
and
(d)
sections 12, 34, 35, 36, and 39 . . . provide for,
inter alia
,
‘two landowners’ to decide on damages or the destruction
of diseased animals, thus unfairly discriminating against
the
landless.”
[5]
Section
23.
[6]
Section
12.
[7]
Sections
34 to 36.
[8]
Sections
63 to 70.
[9]
6
of 2002.
[10]
Zondi
v MEC for Traditional and Local Government Affairs and Others
[2004]
ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC) (
Zondi
).
[11]
32
of 1947.
[12]
Zondi
above n 10 at paras 66-8 and 79-86.
[13]
Id
at para 83.
[14]
Section
25(1) of the Constitution provides:
“
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of
property.”
Section
34 provides:
“
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.”
[15]
Weare
and Another v Ndebele NO and Others
[2008]
ZACC 20
;
2009 (1) SA 600
(CC);
2009 (4) BCLR 370
(CC) (
Weare
).
[16]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1998]
ZACC 21
;
1999 (2) SA 14
(CC);
1999 (2) BCLR 175
(CC) (
SARFU
)
at para 29.
[17]
Woolman
et al (eds)
Constitutional
Law of South Africa
2 ed Vol 1 (Juta & Co Ltd, Cape Town 2008) 4–53.
[18]
Amended
by the Pounds (Amendment) Ordinance 30 of 1940; the Pounds
(Amendment) Ordinance 14 of 1941; the Pounds (Amendment)
Ordinance 8 of 1950; the Decimal Coinage Ordinance 18 of 1960; the
Pounds (Amendment) Ordinance 23 of 1962; the Pounds (Amendment)
Ordinance 21 of 1970; and the Pounds (Amendment) Ordinance 7 of
1971.
[19]
In
fact, in 1963 the Transkei became a “self-governing
territory”.
[20]
43 of 1984.
[21]
The
status and applicability of the Ordinance in the former Transkei is
unclear. The isolation of the so-called “Transkeian
Territories” began in the late 1800s. The Glen Grey Act
of 1894, for example, saw the establishment of district councils
under the leadership of chiefs. Transkeian Territories were
often regulated through a separate set of laws, quite different
from
laws applicable in the Union (later the Republic). The same is
true of pounds. Until 1994, the Cape Pounds Ordinance
18 of
1938 did not apply to the former Transkeian Territories. On 23
April 1937 the Privy Council had enacted Proclamation
2431 of 1937.
The Proclamation consolidated and amended pounds regulations in
respect of the Transkeian Territories.
In terms of section 1,
the Proclamation was to be administered by the Transkei Divisional
Council, which was created in terms
of Ordinance 30 of 1937 and by
village management boards, established in terms Ordinance 10
of 1921. Further, the
Proclamation was amended on several
occasions after 1938. It was amended by Proclamation 262 of
1946 and Proclamation 163
of 1953. In 1963, the Transkei
became a “self-governing territory” and the Transkei
Constitutive Act was passed.
Section 2 of the Constitutive Act
described the areas that became the Transkeian Territories. In
terms of section 37 of
the Constitutive Act, several issues were
within the jurisdiction of the Transkeian legislative body. In
terms of Schedule
2 (Part B, Item 19) of the Constitutive Act, the
legislative authorities in the Transkei had jurisdiction in respect
of “Markets
and pounds in the Transkei”.
[22]
See
Proclamations above n 3.
[23]
Id.
[24]
Above
n 15 at para 22.
[25]
Section
239 of the Constitution.
[26]
Gold
Circle (Pty) Ltd and Another v Premier, KwaZulu-Natal
2005
(4) SA 402
(D) (
Gold
Circle
).
[27]
Weare
above n 15 at para 32.
[28]
Id.
[29]
Weare
above n 15 at para 28. See also
S
v Basson
[2004]
ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) at para 106
(separate concurring judgment of Chaskalson CJ);
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999]
ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at para 2;
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 44;
Ynuico
Ltd v Minister of Trade and Industry and Others
[1996]
ZACC 12
;
1996 (3) SA 989
(CC);
1996 (6) BCLR 798
(CC) at para 7; and
S
v Makwanyane and Another
[1995]
ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 32.
[30]
Above
n 15 at para 36.
[31]
Id.
[32]
Government
Gazette
36385, published on 18 April 2013.