Mdodana v Premier of the Eastern Cape and Others

The applicant, Mr Bension Mphitikezi Mdodana, is a blind subsistence farmer from Lady Frere, Eastern Cape. He lived with his wife, three children, and two grandchildren, all unemployed, surviving on social grants totaling R2,660 per month. The family owned livestock valued at approximately R70,000, which they relied on for supplementary income. In May 2010, 91 of the applicant's goats went missing and were later found to have been impounded at the Lukhanji Municipal Pound in Queenstown at the instance of a neighboring farmer, Mr Callaghan. The applicant was told he had to pay a penalty fee of R41,157.20 (comprising damages and administration costs) to secure their release. Unable to pay, he approached the Legal Resources Centre for assistance. An agreement was reached for the release of his livestock and exemption from the penalty fee, but the applicant continued to challenge the constitutionality of certain provisions of the Pounds Ordinance 18 of 1938, which was enacted by the Provincial Council of the Cape of Good Hope and still applied in parts of the Eastern Cape.

• Whether the Constitutional Court has jurisdiction to confirm a declaration of constitutional invalidity of an Ordinance that is not a provincial Act as defined in sections 167(5) and 172(2)(a) of the Constitution
• Whether sections 12, 23, 34-36, and 63-70 of the Pounds Ordinance 18 of 1938 violate sections 9, 25, 33, and 34 of the Constitution
• What is the status of pre-constitutional ordinances for purposes of confirmation of declarations of invalidity
• Whether legislative passivity by a provincial legislature constitutes embracing an old ordinance, thereby transforming it into a provincial Act

The application for confirmation was dismissed. There was no order as to costs. The Registrar was directed to immediately deliver a copy of the Constitutional Court's judgment and the High Court judgment to the second and third respondents (the Premiers of the Western Cape and Northern Cape). The High Court's declaration of invalidity therefore remained effective in the Eastern Cape Province but without the force that would have come from Constitutional Court confirmation.

An old ordinance enacted by a pre-constitutional provincial council does not constitute a 'provincial Act' for purposes of sections 167(5) and 172(2)(a) of the Constitution where: (1) the democratic provincial legislature has never pronounced on it (through amendment, assimilation, or other legislative action); (2) it does not apply uniformly throughout the province but exists alongside parallel legislation on the same subject matter in different parts of the province; and (3) there is no indication (express or implied) that the provincial legislature has exercised its legislative will regarding the ordinance. In such circumstances, the Constitutional Court lacks jurisdiction to confirm a High Court's declaration of invalidity, and that declaration remains effective without confirmation. The determination of whether confirmation is required depends on the status of the law in question, particularly whether it represents an expression of the legislative will of a democratic provincial legislature deserving of the comity and respect that underlies the confirmation requirement.

The Court expressed concern about the non-participation of the Premiers of the Northern Cape and Western Cape in the proceedings despite being cited as respondents, particularly given that the Ordinance also applied in their provinces. The Court lamented this failure to participate, echoing the High Court's criticism. The Court noted that while the anomaly of the High Court's declaration being effective in one province but not in the other two provinces where the Ordinance also applies is undesirable, this is not a proper basis for the Court to assume jurisdiction not sanctioned by the Constitution. The Court expressed the view that once the relevant authorities in the Northern and Western Cape become aware of the High Court's order, they should take it into account when implementing the impugned provisions. The Court also noted the pending National Animal Pounds Bill, which signals efforts by the National Legislature to regulate impoundment countrywide and establish national norms and standards. The Court did not decide the merits of whether the impugned provisions of the Ordinance violated the Constitution, as it lacked jurisdiction to do so. However, the judgment references with approval the reasoning in Zondi regarding similar provisions in the KwaZulu-Natal Pounds Ordinance.

This case is significant for clarifying the Constitutional Court's jurisdiction to confirm declarations of invalidity of pre-constitutional ordinances. It establishes that not all pre-constitutional ordinances qualify as 'provincial Acts' requiring confirmation under sections 167(5) and 172(2)(a) of the Constitution. The key factors are: (1) whether the provincial legislature has expressly pronounced on the ordinance (e.g., by amendment or assimilation); (2) whether the ordinance applies uniformly throughout the province; and (3) whether the ordinance represents an exercise of legislative will by the democratic provincial legislature. The judgment emphasizes that confirmation jurisdiction is rooted in separation of powers and comity with the legislature, and should not be extended beyond its constitutional bounds. It also demonstrates the ongoing challenges of dealing with fragmented apartheid-era legislation and the uneven legal landscape created by the former 'homelands'. The case highlights the practical difficulties that remain in harmonizing South African law post-1994, particularly in provinces with diverse legislative histories. While the case turned on jurisdictional issues and did not decide the constitutional merits, it left the High Court's declaration of invalidity effective, providing relief to the applicant and similarly situated individuals in the Eastern Cape.