CCT85/13

[2014] ZACC 7

2014 (5) BCLR 533 (CC)

2014 (4) SA 99 (CC)

Dambuza AJ

13 November 2013

25 March 2014

http://hdl.handle.net/20.500.12144/3728

Application for a confirmation of an order of constitutional invalidity of the Grahamstown High Court: Mdodana v Premier of the Eastern Cape and Others (1648/10) [2013] ZAECGHC 66 (13 June 2013).

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. Application for confirmation of invalidity of sections 12, 23, 34 to 36, and 63 to 70 of the Cape Pounds Ordinance 18 of 1938 declared unconstitutional by the High Court, Eastern Cape. The sections permit impoundment of livestock and sale or destruction of livestock without recourse to a court of law. The application for confirmation was premised on the Ordinance being a provincial Act of section 172(2)(a) of the Constitution. The Court held that the Ordinance does not qualify as a “provincial Act” for purposes of confirmation. The Ordinance does not apply to the whole of the Eastern Cape province as the Ciskei Pounds Act continues to apply on the same subject-matter, and therefore, a conclusion that the Ordinance is a provincial Act would be improper. The Court held that the High Court order did not need to be confirmed by it to be effective. The application for confirmation was dismissed. Judgment: Dambuza AJ (unanimous).