|The Development Facilitation Act (DFA) created development tribunals in South African provinces and empowered them to adjudicate on land developments. However, those provisions were ruled to be unconstitutional by this Court and the Constitutional Court confirmed that order.
The Constitutional Court suspended its order of invalidity for two years to enable the legislature to remedy the constitutional defect. The order of suspension expired on 17 June 2012. On that date, the Limpopo Development Tribunal (“the First Respondent”), was called to adjudicate on a land development application brought by the Fifth to Seventh Respondents.
The Appellants opposed the application and submitted to the First Respondent that, upon the expiry of the suspension order, the relevant provisions were now unconstitutional and the First Respondent’s power to determine the application had ceased to exist. The First Respondent rejected this contention and proceeded to adjudicate on and upheld the application on 8 November 2012. This led the Appellants to bring proceedings in the High Court for an order reviewing and setting aside the Tribunal’s decision. The application was dismissed and has subsequently been appealed.
Three days prior to leave to appeal being granted, this Court delivered its judgment in Shelton v Eastern Cape Development Tribunal and Others (SCA), holding that the effect of the expiry of the Constitutional Court’s period of suspension of its order of invalidity, was to deprive the Eastern Cape Development Tribunal of the power to determine applications lodged with it, but not disposed of, prior to the June 2012 deadline.
|As a matter of law, the Shelton judgment meant that the decision by the First Respondent in the present case, in relation to the application by the Fifth to Seventh Respondents was invalid, because it was made at a time when the First Respondent no longer had the power to make such decisions. The outcome of this appeal is thus inevitable.
The Court held that the Court a quo should have referenced the previous judgments, in its decision to depart from its previous decisions on a matter of law. The trite principle applicable is that of stare decisis, that is, the Court stands by its previous decisions, subject to an exception where the earlier decision is held to be clearly wrong.
A decision will be held to have been clearly wrong where it has been arrived at on some fundamental departure from principle, or a manifest oversight or misunderstanding, that is akin to a profound error.
The Court will only depart from its previous decision if it is clear that the earlier court erred or that the reasoning upon which the decision rested was clearly erroneous. The need for palpable error is illustrated by cases in which the court has overruled its earlier decisions. Mere disagreement with the earlier decision on the basis of a differing view of the law by a court is insufficient reason for overruling it.
The doctrine of stare decisis is one that is fundamental to the rule of law. The object of the doctrine is to avoid uncertainty and confusion, to protect vested rights and legitimate expectations as well as to uphold the dignity of the Court.
The First Respondent made no attempt to address the substance of the previous decision. In fact, in response to a question from the Bench, counsel responded: “We are not necessarily saying Shelton is wrong.’ Therefore, it is needless to perform any substantive scrutiny of the judgment in that case. The Court saw no reason to deviate from the reasoning in Shelton.
The appeal must therefore succeed. However, it is necessary to address two other issues, the one relating to the approach of the High Court to the issue of stare decisis and the other to the question of costs.
In the court a quo, the judge failed to properly heed the principles of stare decisis. There was no clear reasoning as to why the previous decision in the same division was wrong, and the judge should have followed it, even if he disagreed with it. The decision was reasonable and justifiable and not clearly wrong. The test for departing from a judgment from one’s own court is set high so that it is only done scarcely and even then only after careful deliberation.
In relation to costs, the Appellants are entitled to their costs, and are entitled to recover them from the First Respondent and the MEC, who supported the First Respondent in the proceedings. Although it is appalling that costs have been incurred at the taxpayer’s expense due to pronouncements by unnamed officials, it is beyond this Court’s responsibility to address and resolve this issue. The Appellants were brought to this Court by the First to Third Respondents and it is legitimate for them to insist that the Respondents pay their costs.
The following order is made:
- The appeal is upheld with costs, such costs to be paid by the First to Third Respondents jointly and severally, the one paying the other to be absolved.
- The order of the High Court is set aside and replaced by the following:
- The decision of the First Respondent approving the application by the Gawie Labuschagne Trust for development rights is set aside as null and void.
- The First to Third Respondents are ordered to pay the costs of the application, jointly and severally the one paying the other to be absolved.’
This case serves to highlight the principle of stare decisis, and provides a guideline as to if and when a Court may depart from its previous decisions on matters of law.
Written by Loyiso Bavuma and supervised by Charlotte Clarke