CCT110/08

[2009] ZACC 24

2009 (6) SA 391 (CC)

2010 (1) BCLR 61 (CC)

Nkabinde J Majority judgment

O'Regan J separate judgment

5 May 2009

27 August 2009

http://hdl.handle.net/20.500.12144/3571

Proceedings involve three applications: First an application for confirmation of a declaration of constitutional invalidity of section 10(3) of the Gauteng Transport Infrastructure Act 8 of 2001 in the South Gauteng High Court, Johannesburg: Reflect-All 1025 CC and Others v Member of the Executive Council for Public Transport, Roads and Works, Gauteng Provincial Government and Another Case No 14629/2004, South Gauteng High Court, Johannesburg, 2 December 2008, as yet unreported. Second an application for leave to appeal against the High Court decision not to declare section 10(1) of the Infrastructure Act unconstitutional and invalid, and set aside Provincial Notice 2625. The application is accompanied by a request for condonation for the late filing of their application for leave to appeal. Third is an application by the respondents for leave to cross-appeal the costs order against them made by the High Court.

Application for confirmation of order of invalidity of section 10(1) and (3) of the Infrastructure Act 2001 and corresponding Notices 2625 and 2626 relating to the planning of provincial roads. Court held that the provisions do not arbitrarily deprive the landowners of their land, and strike a balance between the province?s legitimate interests and the landowners? proprietary interests. The provisions were not arbitrary. With regard to section 10(3) the Court held that there is no need for compensation as the provincial government has not acquired any rights in the affected land, and that the publication of notices does not amount to administrative action. The application was dismissed and the cost order of the High Court altered parties to pay their own costs in both Courts. O?Regan J dissented with regard to section 10(3), finding it to be unconstitutional because of the indefinite restriction of the rights and the fact that there is no mechanism for periodic public review. Majority: Nkabinde J (Moseneke DCJ, Mokgoro J, Ngcobo J and Skweyiya J concurring) Minority: O?Regan J (Van der Westhuizen J and Cameron J concurring)