This experience has taught me the importance of preparation and harnessing one’s listening skills.  In preparation for trial, parties go through volumes of documents and case law.  During your argument you must factor in questions from the Justices and should be able to answer in a manner that advances your clients case/argument.

Because the matter has not been finalised, I will not traverse details regarding the merits of the case.

The issue to be argued was premised around the question whether the legislative powers of municipalities as contemplated under section 43 (c) and section 151 of the Constitution includes the power to pass a by-law that restricts the transfer of property if that property does not comply with the laws of that municipality.

The Respondent contended that such by-laws infringe their rights under section 25 of the Constitution.

“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

 The Applicant alleged that the municipalities do have legislative powers under the constitution and that the impugned by-law constitute limited deprivation of property rights.  This argument brought in section 36 of the Constitution I.e., limitation of rights in terms of the law of general application. 

Counsel for the first Applicant cited case law that supported the argument that the limitation was reasonable and justifiable.  The second Applicant did however stress that there is not enough case law available to support the Applicants argument on the “reasonably necessary restrictions” of the Respondents right under section 25 of the Constitution.  This inevitably led to the Justices asking more questions and counsel for the Applicant bore the burden of convincing the court why they should find in the Applicants favour.

Both parties presented compelling arguments that propelled me to do further reading on the subject matter in order to gain a better understanding. Their arguments were logically structured.

Before attending the shadowing programme, I did not know that Municipalities derive their powers from the Constitution.  In as much as law students/graduates are expected to know the law, theory and practice differ to a certain degree.  It is only when you practice something that you gain a better understanding of it.  Same can be said during a shadowing programme that most of the Constitutional provisions and legal principles make more sense when we hear an advocate argue, citing case law and applying the provisions and principles to a real-life matter.

Listening to this case I also learned that municipalities have the right to exercise any power concerning a matter that is reasonably necessary for, or incidental to, the effective performance of its functions. This means that municipalities have the authority to exercise their powers over matters that fall outside the scope of the powers conferred by the Constitution but because such matters are closely related to the effective exercise of their functions, they are considered to be part of the municipalities functional area over which they have authority.

I look forward to reading the judgement once it has been delivered.  As mentioned above, counsel for the Applicant stressed that there is not enough case law on the matter, therefore, this judgment will set precedence for similar cases.

 CONCLUSION

This whole experience taught me the importance of not boxing myself into a single field of law.  Although this case was premised on section 25 of the Constitution, it also touched on Administrative Law, the interpretation of statutes and other aspects of law that a person wishing to practise law should appraise themselves.  Malibongwe!