JUST-MOS-MAST-NA/rc
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT 51/00 In the matter between :
THE MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Applicant
in re:
DIKGANG ERNEST MOSENEKE & OTHERS Applicant
and
THE MASTER OF THE HIGH COURT Respondent
NOTICE OF APPEAL
BE PLEASED TO TAKE NOTICE that the Minister of Justice and Constitutional Development, the applicant in this regard, hereby notes an appeal in terms of section 172(2) of the Constitution, Act 108 of 1996, against the whole of the judgment of the Court a quo delivered on 5 September 2000.
The grounds of appeal are as follows :
1. No order should have been made in the absence of all parties with a direct and substantial interest in the court order prayed for. Such parties should have been joined as co-applicants and/or co-respondents. More in particular all executors of estates presently being administered under the supervision of Magistrates in
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terms of Regulation 3(1) of the Regulations published in the Government Gazette No 10601 dated 6 February 1987 read with section 23(7) of the Black Administration Act 38 of 1927, as well as all potential beneficiaries of estates of deceased persons whose estates have not yet been reported and which might possibly be entitled to be administered under supervision of Magistrates;
2. The Court a quo erred in even considering the granting of prayers 1 and 2 of the draft notice of motion in the absence of a prayer in the notice of motion making provision to declare invalid and unconstitutional section 23 of the Black Administration Act;
3. The Court a quo erred in granting prayer 2 in the absence of section 23(7) of the Black Administration Act first having been declared invalid and unconstitutional and such order being confirmed by the Constitutional Court. The court a quo erred in ordering the respondent to immediately register and oversee the administration of the estate of the late SEDISE SAMUEL JOHN MOSENEKE, as this order is in direct conflict with the existing law, that is, the provisions of section 23(7) of the Black Administration Act No 38 of 1927 read with Regulation 3(1) of the promulgated Regulations to the Act;
At best for the applicant an order in terms of which section 23(7) of the Black Administration Act is to be declared to be unconstitutional could only take effect from the date on which such an order is confirmed by the Constitutional Court and therefore prayer 2 should have awaited the confirmation of any order relating to section 23(7) of the Black Administration Act;
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4. The court a quo erred in not taking into consideration that suitable transitional arrangements should have been made to address the practical problems involved in estates currently under administration and supervision of Magistrates;
5. The court a quo erred in failing to pay due regard to the fact that there is no factual basis set out by the applicants to the effect that the estate will not efficiently, expediently and prudently be administered and distributed in terms of the Black Administration Act 38 of 1927 and the Regulations promulgated thereunder. Consequently no order should have been made.
DATED at PRETORIA on this the Day of NOVEMBER 2000.
THE STATE ATTORNEY
On behalf of the Minister of Justice 4th floor, Fedlife Forum Building Cor Van der Walt & pretorius Streets
PRETORIA TO: THE REGISTRAR OF
THE ABOVE HONOURABLE COURT
