Zondi v MEC for Traditional and Local Government Affairs and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
• Judgment Date: 15 October 2004
• Citation: 2005 (3) SA 589 (CC)
• Docket Number: CCT 73/03
• Hearing Date: 09 March 2004
• Counsel: A M Stewart (with him R J Purshotam (attorney)) for the applicant. A J Dickson SC (with him A A Gabriel) for the respondent.
• Court: Constitutional Court

Ngcobo J: A

Introduction

[1] This case concerns the constitutional validity of ss 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 B 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 C 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 D 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] From start to finish there is no intervention of the judicial process. E

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 F 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. To meet her daily expenses, G

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she depends on the proceeds of her livestock. From time to time, she sells calves to meet A 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. B

[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 C 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. D

[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 E 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 F 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. G

[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 H 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 I 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 re- spondents against whom the relief was sought and granted. While the J

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MEC elected to abide by the decision of the High Court on the A 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 B attitude that the constitutionality of the impugned provisions should not be reached.

[8] The High Court upheld the constitutional challenge and found that (a) ss 16(1), 29(1), 33 and 34 of the ordinance permit self-help and therefore violate the right of access to courts C guaranteed in s 34 of the Constitution; and (b) ss 8, 10(2), 12, 16(1), 29(1), 37 and 41(4) violated ss 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 s 3(1) D and (2) of the Promotion of Administrative Justice Act (PAJA). [13] In addition, the High Court found that s 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 s 16(1) inconsistent with s 25(1) of the Constitution in that it permits arbitrary deprivation of E 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 s 172(2)(a) of the F 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. G

[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 H 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. I

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Application for direct access A

[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 B 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 C governed by Rule 18 of the Rules of this Court read with s 167(6)(a) of the Constitution, read further with s 8 of the Constitutional Court Complementary Act. [15] Under these provisions, this Court has discretion whether to grant direct access but an application will only be granted if it is in the D 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, E 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 F have jurisdiction. [18] In terms of s 169 [19] of the Constitution, the High Courts have...