Executive Mayor of the City of Cape Town v Director of Public Prosecutions, Western Cape and Another

Mr Babsy Ntamehlo was convicted of the planned murder of his wife. They had one minor child, L, born on 14 or 17 August 2005, who lived with his maternal grandmother after the murder. The family lived in an RDP house in Fisantekraal, Durbanville, allocated to the accused. At the end of sentence proceedings, the trial court made several orders mero motu, including: forfeiture of the accused's half share of the property to the child; appointment of a curator ad litem; an order compelling the Executive Mayor of Cape Town to establish a trust for the child and assist in transferring freehold ownership of the property; and orders against the Premier of the Eastern Cape and the Director-General of Social Development. The Mayor applied for leave to intervene and appeal. The court a quo granted leave to intervene but dismissed leave to appeal as premature. The Supreme Court of Appeal granted leave to appeal to the High Court.

• Whether a criminal trial court has jurisdiction to make orders compelling organs of state and third parties not before the court to perform obligations.
• Whether the court a quo exceeded its powers under the Criminal Procedure Act 51 of 1977 by ordering forfeiture of the accused's property and the establishment of a trust.
• Whether the court a quo properly exercised its power under section 173 of the Constitution to develop the common law.
• Whether the criminal proceedings constituted 'a matter concerning the child' for purposes of section 28(2) of the Constitution.
• Whether orders made against parties not joined in proceedings are valid under the audi alteram partem rule and the principle of legality.
• Whether the court a quo's orders compelled the Mayor to act ultra vires municipal legislation including the MFMA.

The appeal succeeded. Paragraph 3 of the order of the court a quo (compelling the Mayor to establish a trust) was set aside. Orders 1, 2, 4, 5, and 6 of the court a quo were declared to be nullities.

A criminal trial court has no jurisdiction to make orders mero motu compelling organs of state or third parties who are not before the court to perform obligations, especially where such orders are not authorised by the Criminal Procedure Act or any other law. Such orders violate the principle of legality, the rule of law, and the audi alteram partem rule, and are accordingly nullities. The court must exercise its powers within the bounds of the Constitution and legislation; it cannot rely on section 173 of the Constitution or section 28(2) to assume jurisdiction it does not have.

The court made several obiter observations: (1) Judicial officers must not stray into making comments or statements that attract populist rhetoric; protest songs and slogans have no place in a judgment unless they form part of the evidence. (2) The reasoning of the court a quo regarding paternity of the child's grandfathers appeared to evince a patriarchal understanding of identity and 'harks back to the offensive and, thankfully, now repealed, Black Administration Act 38 of 1927'. (3) While gender-based violence is a scourge, there were no grounds on the facts to develop the common law specifically to prohibit a perpetrator from inheriting because of gender-based violence since the common law already prohibits him from inheriting. (4) The reference to the 2004 National Housing Code in the order was to a code that had been replaced in 2009, underscoring the danger of making orders against absent parties.

This case reaffirms the constitutional limits on judicial power, particularly the principle that courts must act within the bounds of the law and cannot make far-reaching orders against non-parties under the guise of acting in the interests of justice. It underscores the separation of powers doctrine and the requirement that orders compelling state organs to act must be grounded in existing legal authority, not judicial benevolence. The case also serves as a caution against judicial overreach in criminal sentencing proceedings and reinforces that the rule of law binds the judiciary itself.